author: Mr. Justice Blackmun Mr. Justice Douglas, Mr. Justice White,

text:
    UNITED AIR LINES, INC. v. MAHIN, DIRECTOR OF DEPARTMENT OF REVENUE, et al.
    No. 71-862.
    Argued November 8, 1972
    Decided March 5, 1973
    Blackmun, J., delivered the opinion of the Court, in which Burger, C. J., and BreNNán, Marshall, Powell, and Rehnquist, JJ., joined. Douglas, J., filed a dissenting opinion, in which Stewart and White, JJ., joined, post, p. 632. White, J., filed a dissenting opinion, post, p. 639.

      Mark H. Berens argued the cause for appellant. With him on the briefs were H. Templeton Brown, Robert L. Stern and William Bruce Hoff, Jr.

      Robert J. O’Rourke argued the cause for appellees. With him on the brief were William J. Scott, Attorney-General of Illinois, and Warren K. Smoot and Calvin C. Campbell, Assistant Attorneys General.

        James A. Velde filed a brief for American Airlines, Inc., et al. as amici curiae urging reversal.

   Mr. Justice Blackmun

delivered the opinion of the Court.

United Air Lines, Inc., challenged the constitutionality of the Illinois general revenue use tax as applied to aviation fuel stored in Illinois and then loaded aboard aircraft there and consumed in interstate flights. The Supreme Court of Illinois upheld the state tax as currently applied, concluding that it did not impose an unconstitutional burden on interstate commerce. 49 Ill. 2d 45, 273 N. E. 2d 585 (1971). We noted probable jurisdiction. 405 U. S. 986 (1972). We now affirm that holding, but we vacate the judgment and remand the case for consideration of an issue under state law.

Since 1953, United has purchased aviation fuel from a supplier for delivery from the supplier’s Indiana facilities. This fuel is utilized by United in its extensive operations out of O’Hare and Midway airports in the Chicago area of Illinois. Although the method of delivery varies for different types of fuel and for the two airports, all fuel is delivered by common carrier and is held for periods ranging from two to 12 days in ground storage facilities maintained in Illinois by United. Fuel for both interstate and intrastate operations is delivered in the same manner. United voluntarily has paid the tax on fuel consumed in purely intrastate operations. Only the tax as applied to fuel used in interstate flights is in issue.

In 1955, Illinois enacted a general tax on the “privilege of using” tangible personal property in the State. Ill. Rev. Stat., c. 120, § 439.3 (1971). “Use” was defined to include the “exercise ... of any right or power over tangible personal property incident to the ownership of that property.” § 439.2. Some exceptions from this inclusive definition were made. One of these exceptions, which the statute recites, § 439.3, is “[t]o prevent actual or likely multistate taxation,” is the temporary-storage provision. This denies application of the tax to property brought from another State and stored temporarily in Illinois before use solely outside the State.

Since this general use tax, apart from its exceptions, reached all tangible personal property, it applied by its terms to fuel stored for use in vehicles. From 1955 to 1963, the Illinois Department of Revenue allowed interstate common carriers to benefit from the temporary-storage provision to the extent that fuel, although loaded aboard in Illinois, was not consumed by the vehicle in that State. The amount of aviation fuel used over Illinois could be calculated because scheduled airline routes are precise and the rate of consumption by each type of aircraft is known. This “burn off” interpretation was changed in 1963, however, when the Department announced by bulletin that it was reinterpreting the temporary-storage provision to mean that “temporary storage ends and a taxable use occurs when the fuel is taken out of storage facilities and is placed into the tank of the airplane, railroad engine or truck.” Thus, as the Illinois court described it, “all fuel loaded on United’s planes at the two airports was deemed to measure the tax.” 49 Ill. 2d, at 49, 273 N. E. 2d, at 587.

United’s suit attacked the new interpretation on both state and federal grounds. All justices of the Supreme Court of Illinois agreed that the new interpretation did not run afoul of the Federal Constitution, but the justices disagreed over the applicability and validity of the “burn off” alternative discussed in the several opinions. 49 Ill. 2d, at 50-53, 56, 57-59, 273 N. E. 2d, at 587-589, 591-592.

I

Two decisions of this Court were relied upon by the Illinois court in reaching its conclusion that the present application of the state tax was not offensive to the Federal Constitution. The cases are Edelman v. Boeing Air Transport, 289 U. S. 249 (1933), and Nashville, Chattanooga & St. Louis R. Co. v. Wallace, 288 U. S. 249 (1933). We agree that these cases support the application of the Illinois tax to all fuel stored in Illinois and loaded aboard United’s aircraft for in-flight consumption.

In Edelman, this Court upheld a state gasoline use tax, even when imposed on gasoline imported from outside the State, stored in tanks at an airport, and loaded aboard planes departing on interstate flights. The decision in Edelman followed the holding in Nashville that oil purchased by a railroad outside Tennessee but stored in Tennessee solely for the purpose of providing motive power for the railroad’s interstate and intrastate operations could be subjected constitutionally to a Tennessee privilege tax. In Nashville, as in this case, none of the fuel stored was held as inventory for sale, and the tax was not one for the use of special services furnished by the State to the taxpayer railroad.

In Edelman, the Court accepted the State’s determination that the taxable event was withdrawal from storage rather than consumption. 289 U. S., at 251. The airline in Edelman contended, id., at 252, that the state tax was invalid under Helson v. Kentucky, 279 U. S. 245 (1929). In Helson, the Court held that a Kentucky tax on the use of gasoline within the State fell too directly on interstate commerce when it was imposed on fuel loaded in Illinois but consumed in the course of an interstate ferry’s trip through Kentucky. In Edelman, the Court distinguished Helson because storage, rather than consumption, was the taxable event. See Southern Pacific Co. v. Gallagher, 306 U. S. 167 (1939).

The Supreme Court of Illinois characterized the taxable “use” under the Illinois statute as either storage or withdrawal from storage. United argued in the state court that the temporary-storage provision constituted a legislative waiver of the right to tax storage prior to loading. The Illinois court rejected this contention, noting that United stored fuel at the airport for general use. On these facts, the Supreme Court of Illinois concluded that the Illinois use tax applied to storage by United before loading and that this application was constitutional:

“Under the circumstances, the 'storage’ becomes something more than a 'temporary storage’ for safekeeping prior to its use solely outside of Illinois. Such storage, under the plain words of the statute, does not qualify under the temporary storage exemption and, as the authorities already discussed reveal, either the storage itself or the withdrawal therefrom are uses which may be taxed without offending the commerce clause of the Federal constitution.” 49 Ill. 2d, at 55-56, 273 N. E. 2d, at 590 (emphasis added).

The Illinois dissenters, too, treated the taxable event as storage or withdrawal. 49 Ill. 2d, at 57, 273 N. E. 2d, at 591.

This Court usually has deferred to the interpretation placed on a state tax statute by the highest court of the State. Scripto, Inc. v. Carson, 362 U. S. 207, 210 (1960); General Trading Co. v. State Tax Comm’n, 322 U. S. 335, 337 (1944). See Evco v. Jones, 409 U. S. 91 (1972). As in Edelman, we see no reason to ignore, or to disagree with, the state court’s determination that the taxable event is storage rather than consumption.

We hold that Edelman and Nashville support the conclusion of the Supreme Court of Illinois that this tax, as applied to all fuel withdrawn from storage for consumption in an interstate vehicle, does not place an unconstitutional burden on interstate commerce. Further, we decline to hold that Edelman has outlived its usefulness. We must concede that for a long time this area of state tax law has been cloudy and complicated, primarily because the varied nature of interstate activities makes line drawing difficult. This Court has established some precedents, however, and Edelman and Nashville remain useful guidelines.

The line drawn between an impermissible tax on mere consumption of fuel, as in Helson, and a permissible tax on storage of fuel before loading, as in Edelman and Nashville, continues to serve rational purposes. Retaining the line at this point minimizes the danger of double taxation and yet provides a source of revenue having a relation to the event taxed. Double taxation is minimized because the fuel cannot be taxed by States through which it is transported, under Michigan-Wiscousin Pipe Line Co. v. Calvert, 347 U. S. 157 (1954), nor by the State in which it is merely consumed, under Helson. A fair result is achieved because a State in which preload-ing storage facilities are maintained is likely to provide substantial services to those facilities, including police protection and the maintenance of public access roads.

Since no persuasive reason has been advanced for changing the established rule, we reaffirm Edelman and Nashville as precedents.

II

United contended in state court that the Illinois temporary-storage exemption should be interpreted, as a matter of state law, to encompass the “burn off” rule which, as noted above, had received administrative sanction for eight years. 49 Ill. 2d, at 49, 273 N. E. 2d, at 587. Two justices of the Illinois court deemed themselves bound under Helson to regard the “burn off” rule as invalid under the Federal Constitution. 49 Ill. 2d, at 50, 273 N. E. 2d, at 587. This basis for construing a state statute creates a federal question. Red Cross Line v. Atlantic Fruit Co., 264 U. S. 109, 120 (1924). The possibility that the state court might have reached the same conclusion if it had decided the question purely as a matter of state law does not create an adequate and independent state ground that relieves this Court of the necessity of considering the federal question. Beecher v. Alabama, 389 U. S. 35, 37 n. 3 (1967); see C. Wright, Federal Courts § 107, p. 488 (2d ed. 1970). Since the other justices of the Illinois court divided three to two on the state law issue, the votes of the two who felt bound by Helson could be determinative of the state issue. Under these circumstances, we proceed to consider the validity of the “burn off” rule in the light of Helson, as United has urged us to do. See Perkins v. Benguet Mining Co., 342 U. S. 437, 441-443 (1952).

The facts in Helson are different from the facts here. In Helson, the operators of the interstate ferry boat purchased and took delivery of fuel in Illinois. The office, the place of business, and the situs of all the taxpayer’s property were in Illinois. The boat crossed the Ohio River into Kentucky on regular runs, and Kentucky sought to impose a tax on the use of gasoline consumed in Kentucky. The Court invalidated the tax “computed and imposed upon the use of the gasoline thus consumed.” 279 U. S., at 248.

In the present case, Illinois is the State of storage of United’s fuel before loading. If Illinois imposed a tax on the basis of that storage but measured the tax only by the fuel consumed over Illinois, a lower tax would result. The dangers of multiple taxation and possible tax windfalls, already suggested as justifying the Helson decision, would not be present if the tax were imposed on storage prior to loading but were measured by consumption. Multiple taxation and tax windfalls are avoided because only one State — the State of storage before loading — has a local event upon which a tax is imposed. Under Helson, States over which the planes fly will be unable to impose a tax on mere consumption.

The use of a method of tax measurement that is intimately related to interstate commerce is not automatically unconstitutional. Tolls on the use of facilities that aid interstate commerce have been upheld even when measured by passengers or by mileage traveled on the highways of a State. Evansville-Vanderburgh Airport Authority District v. Delta Airlines, 405 U. S. 707 (1972); Interstate Busses Corp. v. Blodgett, 276 U. S. 245 (1928). Upon the facts before us, we see no constitutional barrier to the use of the “burn off” rule by Illinois to measure the tax imposed for storage before loading.

Since we now determine that the federal compulsion felt by two justices of the Illinois court is not warranted, we remand the case to avoid the risk of “an affirmance of a decision which might have been decided differently if the court below had felt free, under our decisions, to do so.” Perkins v. Benguet Mining Co., 342 U. S., at 443. We, of course, express no opinion on the construction of the temporary-storage provision under state law.

The judgment of the Supreme Court of Illinois is vacated and the case is remanded to that court for further proceedings.

T. ■ , , It is so ordered.

Mr. Justice Douglas,

with whom Mr. Justice Stewart and Mr. Justice White concur, dissenting.

The Court today makes a break with the history of the Commerce Clause that has been largely responsible for creating in this Nation a great common market. One protective device this Court has used to keep the national channels of commerce open against hostile state legislation has been the constitutional ban on state taxation levied on interstate activities. In 1873, in Case of State Freight Tax, 15 Wall. 232, we held unconstitutional a state tax “so far as it applies to articles . . . taken up in the State and carried out of it . . . .” Id., at 282. While there are ways in which interstate commerce can be required to pay its way, we have not until today abandoned the basic principle that a State may not tax interstate activities. That is what is done here, for the Illinois tax is levied on filling the fuel tanks of airplanes taking off for interstate or foreign journeys. If Illinois can tax that segment of the interstate activity, there is no reason why she may not tax the takeoff itself. The filling of fuel tanks to make an interstate or foreign journey is as indispensable a part and parcel of the interstate or foreign journey as using the runways for that purpose.

The Supreme Court of Illinois sustained the Illinois Use Tax on all aviation fuel loaded aboard United’s interstate and foreign flights departing from Chicago. United purchases fuel outside Illinois and stores it in Illinois temporarily for its interstate and foreign operations. The use tax exempts from the tax property purchased outside Illinois, temporarily stored in the State, and used solely outside the State.

Until 1963 the temporary storage exception was construed by the Illinois Department of Revenue so as to subject to the use tax only that fuel loaded on departing flights that was actually burned over Illinois. In 1963 the Department changed its prior ruling and announced:

“[Tjemporary storage ends and a taxable use occurs when the fuel is taken out of storage facilities and is placed into the tank of the airplane, railroad engine or truck. At this point, the fuel is converted into its ultimate use, and, therefore, a taxable use occurs in Illinois.”

The Supreme Court of Illinois upheld that construction and application of the use tax against the claim that it violates the Commerce Clause, saying that United’s storage becomes something more than temporary storage for safekeeping “prior to its use solely outside of Illinois.” 49 Ill. 2d 45, 55, 273 N. E. 2d 585, 590.

The taxable event is the act of loading the fuel aboard United’s aircraft in Illinois preparatory to their interstate or foreign journey. The majority states that the Supreme Court of Illinois concluded that either the storage of the gasoline itself or the withdrawal therefrom is a use which may be taxed without offending the Federal Constitution. But that statement of the Supreme Court of Illinois was made in its discussion of the exemption from the use tax which, as relevant here, provides: “[T]he temporary storage, in this State, of tangible personal property which is acquired outside this State and which, subsequent to being brought into this State and stored here temporarily, is used solely outside this State.” Ill. Rev. Stat., c. 120, § 439.3 (1971). That means that the temporary-storage exemption would extend, not merely to storage on the ground, but also to its loading aboard the transportation vehicles, such as trucks or railroad cars, and to its transportation from the State. It is thus obvious that, unless the means of removing the property from the State is included in the scope of the temporary storage, it would be a nullity, as appellant maintains. Since in this case, there is no tax if fuel is withdrawn from storage and taken from the State by other means, it is clear that neither the storage nor the removal from storage is what makes the fuel taxable. The majority properly notes that, as a matter of state law and the Illinois court’s interpretation thereof, it is the “consumption’’ wholly without the State that makes the exception operable. Conversely, I read the Illinois opinion to mean that, as a matter of state law, it is at least partial consumption within the State that brings the tax on all the fuel into play. That is so even if only a small portion of the fuel is consumed within the State, while the remainder is consumed out of State during an interstate or foreign flight. The inescapable conclusion from the state court’s interpretation of this state law is that the act of loading the fuel into the fuel tanks of the interstate aircraft solely for use as the motive power is the taxable event.

If that event were used to tax fuel used on an intrastate flight, no problem under the Commerce Clause would arise. But loading is part of the interstate activity when planes prepare for an interstate journey, just as loading is a part of the shipment of goods by rail or water interstate (Puget Sound Stevedoring Co. v. Tax Comm’n, 302 U. S. 90, 92-94; Joseph v. Carter & Weekes Stevedoring Co., 330 U. S. 422, 427, 433-434) and just as local pickups of parcels and local delivery of parcels in interstate movement are not permissible grounds “for a state license, privilege or occupation tax.” Railway Express Agency v. Virginia, 347 U. S. 359, 368.

In Richfield Oil Corp. v. State Board, 329 U. S. 69, we held invalid a state sales tax levied on the delivery of fuel oil into a ship for overseas carriage. We said “[t]he incident which gave rise to the accrual of the tax was a step in the export process.” Id., at 84. A like result was reached in Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U. S. 157, where a State sought to impose a severance tax on the transfer of gas from a refinery pipeline to an interstate pipeline. We noted that the “taxable incidence” was the taking of gas from a local plant “for the purpose of immediate interstate transmission.” Id., at 161. We, therefore, held it unconstitutional, since it was a tax “on the exit of the gas from the State.” Id., at 167.

The present tax is analogous to the tax on the privilege of carrying on an exclusively interstate business which we struck down in Spector Motor Service v. O’Con-nor, 340 U. S. 602, 608. A tax upon an integral part of interstate commerce is a tax that no State by reason of the Commerce Clause is empowered to impose, unless authorized by Congress. Id., at 608.

The fuel .in United’s planes propels the interstate flights; because it is the source of the motive power, it is essential to the interstate journey. It is, therefore, indisputably a part and parcel of the interstate movement. McCarroll v. Dixie Greyhound Lines, 309 U. S. 176, involved an Arkansas statute which prohibited any truck or automobile from entering the State with more than 20 gallons of gasoline in its tank unless an excise tax were paid on the gasoline. The Court held the tax unconstitutional because it imposed a tax on “gasoline to be immediately transported over the roads of Arkansas for consumption beyond.” Id., at 180 (emphasis added). Similarly, Illinois imposes its tax on all of the fuel loaded into airplane tanks, whether or not that fuel is consumed out of State. In Helson v. Kentucky, 279 U. S. 245, on which the Illinois Supreme Court relied in disapproving the earlier construction of the statute, a ferry boat operated between Illinois and Kentucky, having its office in Illinois and buying all its fuel there. Kentucky sought to tax that portion of the fuel used in Kentucky. This Court invalidated the tax, saying it was “exacted as the price of the privilege of using an instrumentality of interstate commerce.” Id., at 252. If that tax is invalid, it follows a fortiori that Illinois may not tax the movement of airplanes from Illinois to California, from Illinois to Europe, or from Illinois to any other out-of-state point.

It is now well settled that interstate commerce can be required to pay its way, Illinois Central R. Co. v. Minnesota, 309 U. S. 157; Western Live Stock v. Bureau of Revenue, 303 U. S. 250; Greyhound Lines v. Mealey, 334 U. S. 653; Northwestern Cement Co. v. Minnesota, 358 U. S. 450, a result commonly reached by formulae which allocate to the taxing State business derived from operations within the State. Railway Express Agency v. Virginia, 358 U. S. 434. Yet, when pieces or segments of an interstate business are taxed, our cases reveal discrimination in approving or disapproving taxes that may be imposed. A State may not exact a license tax for the privilege of carrying on interstate commerce. McGoldrick v. Berwind-White Co., 309 U. S. 33, 56-58; Murdock v. Pennsylvania, 319 U. S. 105, 112-113. As stated in Berwind-White, taxes “which are aimed at or discriminate against [interstate] commerce or impose a levy for the privilege of doing it, or tax interstate transportation or communication or their gross earnings, or levy an exaction on merchandise in the course of its interstate journey” are within the ban, since they may “so readily be made the instrument of impeding or destroying interstate commerce.” 309 U. S., at 48.

Sales within the State, however, are taxable, though the goods have reached the market by interstate channels. Magnano Co. v. Hamilton, 292 U. S. 40, 43; McGoldrick v. Berwind-White Co., supra, at 58. The sales tax in Berwind-White was on the “transfer of title or possession, or both,” id., at 43. And we sustained the tax because of “a local activity” which we described as “delivery of goods within the state upon their purchase for consumption,” id., at 58. As a consequence, an out-of-state buyer who purchases goods in New York City and takes them with him pays the tax, while if he has them shipped to him, he pays no sales tax.

Although “delivery of goods” within the State may be taxed, “solicitation” within the State for out-of-state confirmation and shipment into the State may not be. Nippert v. Richmond, 327 U. S. 416, 422; West Point Grocery Co. v. Opelika, 354 U. S. 390. In Dunbar-Stanley Studios v. Alabama, 393 U. S. 537, a tax was sustained on out-of-state photographers, since their activities were not soliciting orders for an out-of-state house but taking photographs within the State.

The use tax came into being to complement the sales tax, i. e., to fill in gaps where the States could not constitutionally tax interstate arrivals or departures. Seo Henneford v. Silas Mason Co., 300 U. S. 577, 581. Thus, goods may be taxed at the end of their interstate journey, where the tax does not discriminate against interstate commerce. Id., at 582-583; Felt & Tarrant Co. v. Gallagher, 306 U. S. 62 (use tax on storage, use, or other consumption); Southern Pacific Co. v. Gallagher, 306 U. S. 167 (storage and use). Use taxes imposed on storage or withdrawal from storage have consistently been sustained. Eastern Air Transport v. Tax Comm’n, 285 U. S. 147; Gregg Dyeing Co. v. Query, 286 U. S. 472; Nashville, Chattanooga & St. Louis R. Co. v. Wallace, 288 U. S. 249; McGoldrick v. Berwind-White Co., supra, at 49.

Nice distinctions are often necessary because, although all taxes on interstate carriers “in an ultimate sense, come out of interstate commerce” (Freeman v. Hewit, 329 U. S. 249, 256), the constitutional ban relates only to “a direct imposition on that very freedom of commercial flow which for more than a hundred and fifty years has been the ward of the Commerce Clause.” Id., at 256.

For Illinois to tax the storage of fuel within its borders is, of course, constitutionally permissible, even though in time the fuel may be used in interstate or foreign commerce. In Edelman v. Boeing Air Transport, 289 U. S. 249, 251, the use tax was “not levied upon the consumption of gasoline in furnishing motive power for respondent’s interstate planes.” The tax was “applied to the stored gasoline as it is withdrawn from the storage tanks at the airport and placed in the planes.” Ibid. “It is at the time of withdrawal alone that 'use’ is measured for the purposes of the tax.” Id., at 252. (Italics added.) At that time, the gasoline was not irrevocably committed to interstate commerce, for it might be diverted to planes on intrastate journeys.

By contrast, the taxable event on which Illinois levies her tax is not storage for future use, or withdrawal from storage, but only loading in the tanks of planes preparing for interstate or foreign journeys. It is, therefore, inescapably a tax on the actual motive power for an interstate or foreign journey. Taxing the fuel loaded in a plane destined for an interstate or foreign journey is, in other words, taxing the privilege of using a facility in commerce, because the motive power represented by the fuel has become part and parcel of the facility. The decision today marks a break with our constitutional tradition, which, absent an Act of Congress, has led this Court consistently to hold that the free flow of interstate commerce is a ward of the Commerce Clause. Without that free flow of commerce we would not have the great common market we enjoy today.

I would reverse the judgment of the Supreme Court of Illinois.

Mr. Justice White,

dissenting.

The Illinois statute in question, Ill. Rev. Stat., c. 120, § 439.3 (1971), taxes the use of tangible personal property in Illinois, and “use” is defined as being the “exercise . . . of any right or power over tangible personal property incident to the ownership of that property . . . Id., § 439.2. The Illinois Supreme Court held that as applied in this case the statute taxed either the storage or the withdrawal therefrom of aviation fuel. But the statute itself goes on to exempt from tax property temporarily stored in the State, withdrawn from storage, loaded on transportation facilities and transported for use solely outside the State. Id., §439.3 (d). For the tax to apply, the property must not only be stored and subsequently withdrawn, but must also be further used or consumed in the State. It is this actual use or consumption in the State after storage and withdrawal that triggers the tax. Thus it was enough here to invoke the tax that the fuel was temporarily stored, withdrawn, loaded on interstate aircraft, and then partially used within the State. But Helson v. Kentucky, 279 U. S. 245 (1929), forbids taxing the use of gasoline consumed within the State on an interstate trip. And as for that portion of the fuel withdrawn from storage, loaded on an aircraft and consumed in another State, the exemption in the statute would seemingly cover it; but if the exemption itself is not to apply, Hel-son, a fortiori, bars the tax. Moreover, under the Due Process Clause of the Fourteenth Amendment, Illinois has no jurisdiction to tax the use of property occurring in another State. Norfolk & W. R. Co. v. Missouri State Tax Comm’n, 390 U. S. 317, 324-325 (1968), and cases there cited.

       Turbine (jet) fuel for use at O’Hare is shipped by common carrier pipeline from the supplier’s Indiana terminals to a 15-million-gallon storage facility at Des Plaines, Illinois. App. 168-169. Normally, three deliveries are made each month to this facility. App. 129. Smaller quantities of fuel are transferred by pipeline to facilities maintained by United at O’Hare.
      Turbine fuel for use at Midway and aviation gasoline for both airports is transported from Indiana by common carrier tank truck to airport storage facilities. App. 159.

       The parties have stipulated that the period of storage ranges from two to 12 days. App. 38. The Des Plaines storage facilities are not owned by United; it and another airline jointly lease the facilities. United shares in the cost of repairs, the risk of loss, and the employment of a managing agent. App. 132, 168.

       App. 173-174. United uses fuel from the storage facilities for its intrastate training flights and for the intrastate leg of flights that stop at both Chicago and Moline, Illinois. 49 Ill. 2d 45, 47-48, 273 N. E. 2d 585, 586. United also engages in interstate charter flights. App. 37 n. 6.

       The temporary-storage provision excepts
      “(d) the temporary storage, in this State, of tangible personal property which is acquired outside this State and which, subsequent to being brought into this State and stored here temporarily, is used solely outside this State or physically attached to or incorporated into other tangible personal property that is used solely outside this State.” § 439.3.

       The Illinois court’s interpretation of the temporary-storage provision makes it clear that loading into the tanks of the airplane is a relevant event but is not the taxable event. The court indicated that the temporary storage exemption suspended the effect of otherwise taxable events:
      “To put it another way, the legislature has stated that the temporary storage and the withdrawal therefrom are not taxable uses, if the property in question is to be used solely outside the State. It is clear that if United was to withdraw its fuel from storage at Des Plaines and the airports and transport it outside the State for use elsewhere, as for example at an airport in nearby Wisconsin, the exemption would apply and neither the storage, nor the withdrawal, nor the transportation of the fuel outside the State would be uses subject to the tax.” 49 Ill. 2d, at 55, 273 N. E. 2d, at 590.
      Under this view, all the fuel is “used” and subject to Illinois tax when it is temporarily stored or withdrawn from storage. The taxable event is nullified, however, if the fuel is transported from the State for consumption elsewhere.
      Although this use of a subsequent event to define the effect of a prior event may appear somewhat unusual, the result may be said to be compelled since fuel in transit may not be constitutionally taxed. See Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U. S. 157 (1954). A similar exemption for gasoline “exported or sold for exportation from the State” was present in the Wyoming statute challenged in Edelman v. Boeing Air Transport, 289 U. S. 249, 250 (1933).

         Amici have urged reconsideration of Edelman, arguing that it represents “a high-water mark in the Court’s search in the early thirties for formulas that would assist states in finding additional sources of revenue.” Brief for American Airlines et al. 13.

       Although this is a general state tax, rather than a toll on commerce, this Court has recognized that interstate commerce can be “required to pay a nondiscriminatory share of the tax burden.” Braniff Airways v. Nebraska State Board of Equalization, 347 U. S. 590, 598 (1954). In Helson v. Kentucky, 279 U. S. 245 (1929), in contrast, the ferry boat was asked to bear more than its “nondiscriminatory share” when it was taxed only for passing through Kentucky waters.

       Those justices of the Illinois court who relied on Helson did not consider, apparently, any interpretation of Helson that would prevent multistate taxation. They suggested that an adoption of the “burn off” rule would allow taxation by every State over which United’s planes fly. 49 Ill. 2d, at 51, 273 N. E. 2d, at 588.

       United successfully calculated and paid the state tax under the “bum off” interpretation for eight years. App. 41. No suggestion has been made that the recordkeeping procedures were an intolerable burden on commerce or that special equipment must be installed to measure fuel consumption.

       Ill. Rev. Stat., c. 120, § 439.1 et seq.

        Id., §439.3.

        Edelman was distinguished in Southern Pacific Co. v. Gallagher, 306 U. S. 167, as involving a tax “upon events prior to the commerce,” id., at 176, the Court going on to say: “The principle illustrated by the Helson case forbids a tax upon commerce or consumption in commerce.” Ibid.


source: Caselaw Access Project

author: Mr. Justice Blackmun Mr. Justice Douglas,

license: Public Domain

text:
    OHIO v. KENTUCKY
    No. 27,
    Orig.
    Argued January 10, 1973
    Decided March 5, 1973
    Blackmun, J., delivered the opinion of the Court, in which BurgeR, C. J., and BkeNNAN, Stewart, White, Marshall, Powell, and Rehnquist, JJ., joined. Douglas, J., filed a dissenting opinion, post, p. 652.

      Joseph M. Howard argued the cause for plaintiff on exceptions to the Report of the Special Master. With him on the brief was William J. Brown, Attorney General of Ohio.

      John M. Famularo, Assistant Attorney General of Kentucky, argued the cause for defendant pro hac vice in answer to exceptions to the Report of the Special Master. With him on the brief were Ed W. Hancock,
      Attorney General, and James M. Bingo, Assistant Attorney General.
   Mr. Justice Blackmun

delivered the opinion: of the Court.

Almost seven years ago, in March 1966, the State of Ohio instituted this original action against the Commonwealth of Kentucky. By its prayer for relief in its proposed bill of complaint, Ohio asked only that the Court declare and establish:

“1. The boundary line between the State of Ohio and the State of Kentucky as being the low water mark on the northerly side of the Ohio River in the year 1792 ....
“2. The State of Ohio and the State of Kentucky have equal and concurrent jurisdiction over and on all of the Ohio River from the northerly shore to the Southerly shore, except jurisdiction incidental to the sovereignty of the soil under the river and structures permanently attached thereto.”

In its complaint Ohio alleged:

“4. The State of Ohio was established from the land ceded by legislative act of the Commonwealth of Virginia to the United States on the 1st day of March, 1784, which act is known as the Cession of Virginia.
“5. The State of Kentucky was established by the separation of the District of Kentucky from the jurisdiction of the Commonwealth of Virginia pursuant to that certain act of the Virginia Legislature entitled 'An Act concerning the erection of the district of Kentucky into an independent state/ passed on the 18th day of December, 1789, which act is known as the Virginia-Kentucky Compact.
“6. The northern boundary line of the State of Kentucky was established from the Cession of Virginia and the Virginia-Kentucky Compact as the low water mark on the northerly side of the Ohio River as it existed in the year 1792.”

Ohio went on to allege: From 1910 to 1929, the United States erected dams in the Ohio River for navigational purposes. Since 1955, it has been replacing the earlier dams with higher ones. This has caused the waters of the river to rise and permanently inundate various areas of both Ohio and Kentucky. "As a result, the shores or banks of the Ohio River have been moved farther northerly and southerly as the water levels have increased by the damming of the river.” The north low water mark of 1792 “has been obscured by the increased elevation of the water levels.” Kentucky has claimed that the line between the two States is “along the present northerly shore line of the Ohio River rather than the 1792 northerly low water mark which is located to the south of the present north shore line.” Ohio “does now and has always claimed . . . that the boundary between it and Kentucky is the 1792 northerly low water mark.”

Leave to file the bill of complaint was granted. 384 U. S. 982 (1966). Kentucky by its answer admitted the allegations of the above-quoted numbered paragraphs of Ohio’s complaint. The Court then appointed the Honorable Phillip Forman as Special Master in the case. 385 U. S. 803 (1966).

Five years later, in August 1971, Ohio moved for leave to file an amended complaint. By this amendment Ohio would assert that the boundary between it and Kentucky is the middle of the Ohio River, or, only alternatively, is the 1792 low water mark on the northerly shore. We referred the motion to the Special Master. 404 U. S. 933 (1971). He held a hearing and in due course filed his report. 406 U. S. 915 (1972). The Master recommended that this Court enter its order denying Ohio’s petition for leave to amend. His conclusion rested on the ground “that the proposed amendment, in any view of its factual allegations, fails as a matter of law to state a cause of action.” Report 16. Upon the filing of Ohio’s exceptions and Kentucky’s reply, we set the matter for argument. 409 U. S. 974 (1972).

I

Accepted procedures for an ordinary case in this posture would probably lead us to conclude that the motion for leave to file should be granted, and the case would then proceed to trial or judgment on the pleadings. This, however, is not an ordinary case. It is one within the original and exclusive jurisdiction of the Court. Const., Art. Ill, §2; 28 U. S. C. § 1251 (a). Procedures governing the exercise of our original jurisdiction are not invariably governed by common-law precedent or by current rules of civil procedure. See United States Supreme Court Rule 9; Rhode Island v. Massachusetts, 14 Pet. 210 (1840). Under our rules, the requirement of a motion for leave to file a complaint, and the requirement of a brief in opposition, permit and enable us to dispose of matters at a preliminary stage. See, for example, Alabama v. Texas, 347 U. S. 272 (1954); California v. Washington, 358 U. S. 64 (1958); Virginia v. West Virginia, 234 U. S. 117, 121 (1914). Our object in original cases is to have the parties, as promptly as possible, reach and argue the merits of the controversy presented. To this end, where feasible, we dispose of issues that would only serve to delay adjudication on the merits and needlessly add to the expense that the litigants must bear.

This case is peculiarly susceptible to treatment of that kind. The allegations in Ohio’s proposed amendment are not as yet formally controverted by Kentucky. We, therefore, treat the new material as admitted. Kentucky asserts, however, that, even assuming the new allegations to be true, no cause of action is stated, for the subject matter of Ohio’s proposed amendment is barred as a matter of law.

I — I

In Handly s Lessee v. Anthony, 5 Wheat. 374 (1820), this Court stated that the boundary between Indiana and Kentucky was the low water mark on the western or northwestern side of the Ohio River. Handly was an action for ejectment brought by a plaintiff claiming under a grant from Kentucky against defendants claiming under a grant “from the United States, as being part of Indiana.” Id., at 375. The disputed land was a neck south of a channel, or bayou, that had formed north of the main river. When the river was high, the channel filled and cut off the land to the north. When the river was low, the channel was dry in part and the separation did not exist. The resolution of the case turned on whether the land was in Indiana or in Kentucky. Indiana, like Ohio, received its territory from the United States. The Court in Handly observed that the question “depends chiefly on the land, law of Virginia, and on the cession made by that State to the United States,” id., at 376, and concluded that the United States acquired title from Virginia when negotiations during the period from 1781-1784 resulted in Virginia’s ceding its lands north and west of the Ohio River to the Federal Government. Kentucky was received as a State of the Union in 1792 out of territory Virginia purported to retain at the time of the 1784 cession. The Court concluded, on the basis of this history, that Kentucky, through Virginia, extended up to the low water mark on the northern, or far, side of the Ohio River. Mr. Chief Justice Marshall enunciated the following, now familiar, principle:

“When a great river is the boundary between two nations or states, if the original property is in neither, and there be no convention respecting it, each holds to the middle of the stream. But when, as in this case, one State is the original proprietor, and grants the territory on one side only, it retains the river within its own domain, and the newly-created State extends to the river only. The river, however, is its boundary.” 5 Wheat., at 379.

The rule of the Handly case, as well as its specific application to the Kentucky-Indiana border, has been consistently adhered .to in subsequent decisions of this Court. Indiana v. Kentucky, 136 U. S. 479 (1890) (despite Indiana’s argument, id., at 486-493, that its boundary was the middle of the river); Henderson Bridge Co. v. Henderson City, 173 U. S. 592 (1899); Nicoulin v. O’Brien, 248 U. S. 113 (1918). It has been explicitly recognized by the Supreme Court of Ohio in Booth v. Shepherd, 8 Ohio St. 243, 247-248 (1858), where it was stated with far greater precision than the mere assumption the dissent suggests, post, at 654-655, that:

“The construction given to the Virginia deed of cession by the supreme court of the United States, having been thus acquiesced in and acted on by the courts, both of Virginia and Ohio, may be regarded as decisive of the question.”

See also Lessee of McCullock v. Aten, 2 Ohio 307, 310 (1826); Lessee of Blanchard v. Porter, 11 Ohio 138, 142 (1841). See Commonwealth v. Garner, 3 Gratt. 655 (Gen. Court of Va. 1846).

In order to counter this history, Ohio argues that, as it was not a party to the Handly case, or to any of the later cases in this Court that reaffirmed Handly, it is not bound by the rule there established, which it characterizes as dictum. In particular, Ohio contends that it is free to challenge the conclusion that Virginia, prior to ceding the land that now encompasses both Indiana and Ohio, held good title to that land.

Handly and the later decisions to which Ohio was not a party of course do not foreclose Ohio’s claim in a res judicata sense. But proceedings under this Court’s original jurisdiction are basically equitable in nature, Rhode Island v. Massachusetts, 14 Pet. 210 (1840), and a claim not technically precluded nonetheless may be foreclosed by acquiescence. Indiana v. Kentucky, 136 U. S., at 510, 518. We turn to that aspect of the present case.

Ill

By its amended complaint Ohio seeks to re-examine an accepted premise of the Handly decision and, in the process of doing so, to alter legal rights that, as a practical matter, have long been settled. By presently claiming ownership of half the Ohio River, Ohio does not assert that when Virginia ceded the lands northwest of the river, it intended to establish the river’s center as the line between Ohio and Kentucky, but, at the same time and thus inconsistently, to establish its northern edge as the line between Indiana and Kentucky. Rather, Ohio challenges the very postulate underlying the Handly decision, which must be taken, in practical effect, as establishing the entire northern boundary of Kentucky including its contact with Ohio. Ohio’s new theory is that Virginia did not have title to the lands north of the Ohio River in 1784 when Virginia surrendered its claim to the United States. Virginia’s claim, it is said, was baseless. Indeed, Ohio argues that title to these lands was hotly contested, with Virginia, New York, Massachusetts, Connecticut, and the United States all laying claim to the territory north of the river. The Continental Congress, fearing the threat this controversy posed for the youthful Nation, refused to resolve the disputed claims, and, instead, prevailed upon each of the claimants to forgo its claim in favor of the United States for the common good. Accordingly, Ohio contends, the premise of Handly — that Virginia had title to the northwest territory prior to ceding it to the United States, or, to say it another way, that it was the common proprietor of lands on both sides of the river — is historically invalid.

We need intimate no view on the merits of Ohio’s historical analysis, for the State’s long acquiescence in the location of its southern border at the northern edge of the Ohio River, and its persistent failure to assert a claim to the northern half of the river, convince us that it may not raise the middle-of-the-river issue at this very late date. The 1820 decision in Handly necessarily placed Ohio on notice that any claim it might assert to half the river would be precluded by the reasoning of that opinion. The Court in Handly concluded that the entire border between Indiana and Kentucky was the river’s northern edge. Virginia’s claim to the territory that is now Indiana arose from the same source as its claim to what is now Ohio. The lands to which Virginia purportedly surrendered title to the United States in 1784 encompassed both Ohio and Indiana. Ohio could not reasonably have believed, after Handly, that its claim over the northern half of the Ohio River rested on a footing different from that of Indiana.

Indeed, Ohio consistently has recognized that Handly and the cases that followed it foreclosed any claim that its border was located in the middle of the river. Even its original 1966 bill of complaint and supporting brief in this case so state. The decisions of Ohio’s highest court are to the same effect. And Ohio for over 150 years has failed to assert, through proceedings available in this Court, the claim it now would raise in the face of Kentucky’s legislative and judicial assertions of sovereignty over the river.

Ohio does not say that its failure to assert its claim over the past century and a half is due to any excusable neglect. The implications of Handly and later decisions of this Court are too clear to support that claim. Ohio recognized this in its initial brief here. Nor, in the light of the longstanding and unequivocal claims of Kentucky over the river, and Ohio’s failure to oppose those claims, may Ohio credibly suggest that it has not acquiesced. “The rule, long-settled and never doubted by this court, is that long acquiescence by one state in the possession of territory by another and in the exercise of sovereignty and dominion over it is conclusive of the latter’s title and rightful authority.” Michigan v. Wisconsin, 270 U. S. 295, 308 (1926). To like effect are Vermont v. New Hampshire, 289 U. S. 593, 613 (1933); Maryland v. West Virginia, 217 U. S. 1, 42-44 (1910); Louisiana v. Mississippi, 202 U. S. 1, 53-54 (1906); Virginia v. Tennessee, 148 U. S. 503, 523 (1893); Indiana v. Kentucky, 136 U. S., at 509-510, 518; Rhode Island v. Massachusetts, 4 How. 591, 639 (1846).

Here we have not only long acquiescence by Ohio in Kentucky’s open claims over the river, but also lines of cases by this Court and the courts of both Ohio and Kentucky that, for more than 150 years, placed Ohio on consistent notice of the inadequacy of the claim it now asserts. We find ourselves in agreement with the Special Master that Ohio is foreclosed from claiming that its boundary with Kentucky lies in the middle of the Ohio River.

The Special Master’s recommendation is adopted and Ohio’s motion for leave to amend its bill of complaint is denied. The case is remanded to the Special Master for further proceedings.

It is so ordered.

Mr. Justice Douglas,

dissenting.

The State of Ohio instituted this original action to locate the boundary between it and the Commonwealth of Kentucky on the Ohio River. The initial complaint recognized Kentucky’s northern boundary as following “the low water mark on the northerly side of the Ohio River as it existed in the year 1792,” but asserted that subsequent events had altered the location of the low-water mark. Today the Court denies Ohio’s request that it be permitted to amend its complaint to plead an alternative boundary theory: that the true boundary between the States is in the middle of the Ohio River.

Basic concepts of pleading preclude determination of factual issues in testing the sufficiency of a claim. The appropriate question for the Court at this stage of the proceedings, therefore, is whether if the facts as stated by Ohio are true, a valid legal issue is tendered. Ohio asserts that Virginia, Kentucky’s predecessor in title, never held ownership rights to both banks of the Ohio River and that, accordingly, Kentucky’s current claim to land underlying the northern side of the Ohio River is invalid. The question before us is equivalent to that posed by a demurrer. The majority’s conclusion of insufficiency is, therefore, not sustainable.

The Court’s decision is a determination upon the merits of Ohio’s proffered allegations and should be made only after all the evidence is before it. The Master concludes, and the Court agrees, that Ohio has acquiesced to Kentucky’s ownership of the northern half of the Ohio River as established by adjudications in this Court. Although I find such consideration of the merits to be premature, the Court’s reasoning prompts me to review the case law upon which estoppel is urged.

The Ohio River serves as the boundary between the States of Kentucky and Indiana as well as the boundary between the parties to this suit, Kentucky and Ohio. During the 19th century, this Court dealt with the nature of the Kentucky-Indiana boundary in two cases. Handly’s Lessee v. Anthony, 5 Wheat. 374 (1820), and Indiana v. Kentucky, 136 U. S. 479 (1890). Later cases dealt with issues that turned upon the boundary determination of Handly’s Lessee. Based upon a historical analysis that Ohio here contests, the Court held in the Handly case that the Kentucky-Indiana boundary coincides with the northern low-water mark of the Ohio River. Ohio, of course, was not involved in that litigation. Yet, the Master’s recommendation that is now adopted would bind Ohio today to a determination made in 1820 in a case to which it was not a party. And, since the doctrine of res judicata does not reach so far, reliance is placed upon an estoppel theory. Simply stated, Kentucky contends that Ohio has lost whatever rights it may once have had to challenge the Kentucky claim to land underlying the northern half of the Ohio River by failing to object earlier and by recognizing the boundary rationale that was applied to Indiana in cases tried in Ohio courts since 1820. Ohio disputes the suggestion.

First, Ohio notes that the argument it wishes to present to substantiate a claim to the center of the river has not been considered by this Court. The early cases turned instead on the assumption that Virginia’s prior title, upon which Kentucky’s claims are predicated, was valid as to the land involved. Ohio additionally points out that the three Ohio cases proffered as evidence of Ohio’s recognition of Kentucky’s claim to the northern half of the river concerned private disputes that hinged upon location of the river’s edge, rather than a determination as to the boundary between the States. That the further determination was not required is made clear by the language of those cases. The most recent of the three, indeed, states quite explicitly:

“It does not become necessary, in this case, to determine whether-the middle of the Ohio River . . . does or does not constitute the boundary line between the states of Virginia and Ohio. For all the purposes of this case, it may be assumed that Virginia was the original, undisputed owner of the territory on both sides of the river, and still retains all that she did not part with by her deed of cession in 1784.”

Ohio now wishes to question precisely that assumption. In prematurely judging the issues and pretermitting briefing and argument of Ohio’s attack on the validity of Virginia’s title, the Court does disservice both to the adjudication of this dispute and to the procedural contours of original actions. I would allow Ohio to amend its complaint so that the merits might be reached in due course.

       1792 is the year Kentucky became a State. 1 Stat. 189.

       Recommendation of the Continental Congress, September 6, 1780, 10 W. Hening, Laws of Virginia 562 (1822); Resolution of the General Assembly of Virginia, January 2, 1781, conditioned, among other things, upon ratification of the Articles of Confederation and upon like cessions by other States, id., at 564, 567; Act of the Continental Congress, September 13, 1783, 25 J. of the Cont. Cong. 1774-1789, p. 559 (1922); Act of Confirmation, October 20, 1783, 11 W. Hening, Laws of Virginia 326 (1823); Act of the Continental Congress, March 1, 1784, 1 Laws of the United States 472 (B. & D. ed. 1815).
      The 1781 Virginia resolution recited that the Commonwealth “will yield to the congress of the United States ... all right, title, and claim that the said commonwealth hath to the lands northwest of the river Ohio.” 10 W. Hening, Laws of Virginia 564 (1822). Among the proposed conditions was also a guarantee by the United States to Virginia of “all the remaining territory of Virginia included between the Atlantic Ocean and the south east side of the river Ohio.” Id., at 566. This latter condition was not agreed to by the Congress by its Act of 1783. 25 J. of the Cont. Cong. 1774-1789, p. 563 (1922).
      The 1783 Act referred to territory “to the north-west of the river Ohio.” 11 W. Hening, Laws of Virginia 327. So, too, did the deed of March 1, 1784, from Virginia to the United States accepted by Congress on the same day. 1 Laws of the United States, supra, at 474.

       “Upon this question of boundary nothing can be added to what was said in the eases cited; and it must be assumed as indisputable that the boundary of Kentucky extends to low-water mark on the western and northwestern banks of the Ohio River.” Henderson Bridge Co. v. Henderson City, 173 U. S. 592, 613 (1899).

       There is a possible intimation to the contrary in the bridge tax case of Covington á Cincinnati Bridge Co. v. Mayer, 31 Ohio St. 317, 327, 329 (1877). The case appears, however, to have been resolved on the content of the bridge company’s Ohio charter granting permission for the erection of the bridge. See Sebastian v. Covington & Cincinnati Bridge Co., 21 Ohio St. 451 (1871).

       See Indiana v. Kentucky, 136 U. S. 479, 505 (1890). See also the deed of March 1, 1784, referred to in n. 2, supra, from Virginia to the United States. On August 7, 1789, Congress passed “An Act to provide for the Government of the Territory Northwest of the river Ohio.” 1 Stat. 50. In 1800, this territory was divided into two separate governments. 2 Stat. 58. And on April 30, 1802, the enabling Act for the admission of Ohio was passed. 2 Stat. 173. The State was formed out of the eastern half of the theretofore divided territory and was “bounded ... on the south by the Ohio river,” ibid.; the land in the eastern division not included within the boundaries described for Ohio “is hereby attached to, and made a part of the Indiana territory.” Id., at 174.

       “The State of Ohio does now, and has always claimed and maintained that the boundary between it and the State of Kentucky is the northerly low water mark of the Ohio River, as that mark existed in the year 1792 when Kentucky became a state.” Brief in support of motion for leave to file complaint 8. (Emphasis in original.)

       In 1810, a decade before the Handly decision, the Kentucky Legislature enacted the following statute:
      “Sec. 1 Be it enacted by the General Assembly, That each county of this commonwealth, calling for the river Ohio, as the boundary line, shall be considered as bounded in that particular by the state line on the north west side of said river, and the bed of the river and the islands, therefore shall be within the respective counties, holding the main land opposite thereto, within this state, and the several county tribunals, shall hold jurisdiction accordingly.” Acts of Kentucky, 1809, p. 100 (1810); 1 Statute Laws of Kentucky 268 (1834).
      See also 2 Ky. Rev. Stat., Tit. 1, c. 1, p. 2 (1971).

        Commonwealth v. Henderson County, 371 S. W. 2d 27, 29-30 (1963); Louisville Sand & Gravel Co. v. Ralston, 266 S. W. 2d 119, 121-122 (1954); Shannon v. Streckfus Steamers, Inc., 279 Ky. 649, 653, 131 S. W. 2d 833, 835 (1939); McFarland v. McKnight, 45 Ky. 500, 510 (1846); Church v. Chambers, 3 Dana 274, 278-279 (Ct. App. Ky. 1835); Fleming v. Kenney, 27 Ky. 155, 158 (1830); McFall v. Commonwealth, 2 Metc. 394, 396 (Ky. 1859).

       “Like Ohio, the State of Indiana was formed from the land ceded by Virginia; therefore, it has for its southern boundary the Ohio River. See 3 Stat. 289 (1816), and 3 Stat. 399 (1816). Thus, a determination of the boundary between the states of Indiana and Kentucky would control the determination of the boundary between the states of Ohio and Kentucky.” Brief in support of motion for leave to file complaint 10.

       The situation, of course, is otherwise when the States’ boundary dispute has been open, continuous and of long standing. See, for example, New Jersey v. Delaware, 291 U. S. 361, 376-377 (1934); Oklahoma v. Texas, 272 U. S. 21, 46-47 (1926); Arkansas v. Tennessee, 246 U. S. 158, 172 (1918).

       Complaint ¶ 6.

       Amended complaint ¶¶ 1-3.

       F. James, Civil Procedure §4.1, p. 127; Conley v. Gibson, 355 U. S. 41, 45-46.

       Virginia’s claim of title rests upon the charter granted by King James I to the London Company in 1609. Ohio argues that later events, including the revocation of the charter in 1624 when Virginia became a Crown colony, 1 J. Marshall, The Life of George Washington 69; 2 W. Hening’s Stat. at Large 525-526; 1 Laws of the United States 465 (B. & D. ed. 1815) (hereinafter Laws), and the ceding by the French to the British of the Eastern Mississippi Valley north of the Ohio River under the Treaty of Paris in 1763, 1 Laws 441-442; A. Shortt & A. Doughty, Documents Relating to the Constitutional History of Canada, 1759-1791, pp. 113, 116, sharply curtailed Virginia’s reach and that the middle of the river was intended as the boundary between old and new States by the United States following the Revolution. It seeks to substantiate this final point by references to various laws that prescribe the boundaries of new States, 1 Laws 475, 480, provide for navigational rights, id., at 479-480, and speak in general terms of Virginia, Kentucky, and Tennessee as the lands south, or south and east, of the Ohio River, and of Ohio, Indiana, and Illinois as the lands to the north, or the north and west, 2 Laws 14, 104, 138, 179, 311, 421, 533; 3 Laws 367, 385, 396, 596, 612.

        Henderson Bridge Co. v. Henderson City, 173 U. S. 592 (1899); Wedding v. Meyler, 192 U. S. 573 (1904); Nicoulin v. O’Brien, 248 U. S. 113 (1918).

        Handly’s Lessee v. Anthony, 5 Wheat. 374, 377, 379.

       See ibid.; Indiana v. Kentucky, 136 U. S. 479, 503-504.

        Lessee of McCullock v. Aten, 2 Ohio 307 (1826); Lessee of Blanchard v. Porter, 11 Ohio 138 (1841); Booth v. Shepherd, 8 Ohio St. 243 (1858).

       2 Ohio, at 310 (discussing only ownership of the land above the water line but below the bank); 11 Ohio, at 139-140 (“The defendant’s deed conveys the soil to the top of the river bank, and reserves the ‘break and slope,’ between that point and the river”).

       S Ohio St., at 245-246 (noting that “In the case of Handly’s Lessee v. Anthony, the supreme court of the United States, pro-eeed[ed] on the assumption that Virginia was the original proprietor of both sides of the river . . .” (emphasis added)).


author:
Per Curiam. Mr. Justice Stewart Mr. Justice Douglas, Mr. Justice Brennan,
      Mr. Justice Marshall,

text:
    ORTWEIN et al. v. SCHWAB et al.
    No. 72-5431.
    Decided March 5, 1973
   Per Curiam.

Appellants contend that Oregon’s $25 appellate court filing fee, as applied in this case, violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment and, also, the First Amendment as incorporated into the Fourteenth. The Supreme Court of Oregon decided otherwise. 262 Ore. 375, 498 P. 2d 757 (1972). We affirm that decision for reasons we found persuasive in United States v. Kras, 409 U. S. 434 (1973).

Appellant Ortwein (who also was receiving social security and an urban renewal allowance) sustained a reduction of approximately $39 per month in his Oregon old-age assistance when his county welfare agency determined that he shared shelter and expenses with another person in a manner that relieved him of some of the costs upon which his original award had been based. Ortwein appealed to the Oregon Public Welfare Division. The Division conducted a hearing and upheld the county agency’s decision.

Appellant Faubion claimed that certain expenses related to work training under a federal program should have been deducted in calculating her income. Most of these deductions were disallowed, after hearing, by the Public Welfare Division. The disallowance resulted in smaller welfare payments to Faubion over a five-month period.

Judicial review of these agency decisions is authorized under state law. Ore. Rev. Stat. § 183.480 (1971). In cases that are contested, as these were, jurisdiction for judicial review is conferred upon the Oregon Court of Appeals. § 183.480 (2). All appellants in civil cases in Oregon pay a $25 filing fee in appellate courts. §§ 21.010 and 21.040 (1971). Each of the present appellants alleged that he was an indigent unable to pay the filing fee; each moved to proceed in forma pauperis in the Oregon Court of Appeals. The motions were denied without opinions. Appellants then petitioned the Supreme Court of Oregon for an alternative writ of mandamus ordering the Court of Appeals to accept appellants’ cases without payment of fees. The Supreme Court of Oregon requested supplemental briefs and then issued its opinion denying the petition for mandamus. 262 Ore. 375, 498 P. 2d 757 (1972). From this denial the present appeal is taken.

I

Relying on this Court’s opinion in Boddie v. Connecticut, 401 U. S. 371 (1971), and on the remand-for-reconsideration order in Frederick v. Schwartz, 402 U. S. 937 (1971), appellants contend that the Oregon appellate filing fee, when applied to indigents seeking to appeal an adverse welfare decision, violates the Due Process Clause of the Fourteenth Amendment. In United States v. Kras, 409 U. S. 434 (1973), this Court upheld statutorily imposed bankruptcy filing fees against a constitutional challenge based on Boddie. We emphasized the special nature of the marital relationship and its concomitant associational interests, and noted that they were not affected in that case and that the objective sought by appellant Kras could be obtained through alternative means that did not require a fee. Boddie, of course, was not concerned with post-hearing review. We now conclude that Kras, rather than Boddie, governs the present appeal, and we emphasize that Frederick was remanded, and not summarily reversed.

A. In Kras, we observed that one’s interest in a bankruptcy discharge “does not rise to the same constitutional level” as one’s inability to dissolve his marriage except through the courts. 409 U. S., at 445. In this case, appellants seek increased welfare payments. This interest, like that of Kras, has far less constitutional significance than the interest of the Boddie appellants. Compare Dandridge v. Williams, 397 U. S. 471 (1970), and Richardson v. Belcher, 404 U. S. 78 (1971), with Loving v. Virginia, 388 U. S. 1 (1967); Skinner v. Oklahoma, 316 U. S. 535 (1942); Griswold v. Connecticut, 381 U. S. 479 (1965), and Eisenstadt v. Baird, 405 U. S. 438 (1972). Each of the present appellants has received an agency hearing at which it was determined that the minimum level of payments authorized by law was being provided. As in Kras, we see “no fundamental interest that is gained or lost depending on the availability” of the relief sought by appellants. 409 U. S., at 445.

B. In Kras, the Court also stressed the existence of alternatives, not conditioned on the payment of the fees, to the judicial remedy. Id., at 446. The Court has held that procedural due process requires that a welfare recipient be given a pretermination evidentiary hearing. Goldberg v. Kelly, 397 U. S. 254, 264, 266-271 (1970). These appellants have had hearings. The hearings provide a procedure, not conditioned on payment of any fee, through which appellants have been able to seek redress. This Court has long recognized that, even in criminal cases, due process does not require a State to provide an appellate system. McKane v. Durston, 153 U. S. 684, 687 (1894); see Griffin v. Illinois, 351 U. S. 12, 18 (1956); District of Columbia v. Clawans, 300 U. S. 617, 627 (1937); Lindsey v. Normet, 405 U. S. 56, 77 (1972). Under the facts of this case, appellants were not denied due process.

II

Appellants urge that the filing fee violates the Equal Protection Clause by unconstitutionally discriminating against the poor. As in Kras, this litigation, which deals with welfare payments, “is in the area of economics and social welfare.” 409 U. S., at 446; see Dandridge v. Williams, 397 U. S., at 485-486. No suspect classification, such as race, nationality, or alienage, is present. See Graham v. Richardson, 403 U. S. 365, 372 (1971). The applicable standard is that of rational justification. United States v. Kras, supra.

The purpose of the filing fee, as with the bankruptcy fees in Kras, is apparent. The Oregon court system incurs operating costs, and the fee produces some small revenue to assist in offsetting those expenses. Cf. Ore. Rev. Stat. § 21.590 (1971). Appellants do not contend that the fee is disproportionate or that it is not an effective means to accomplish the State’s goal. The requirement of rationality is met.

III

Relying on Lindsey v. Normet, supra, appellants contend that the fee is not required of certain classes of litigants, and that an appeal is thus “capriciously and arbitrarily denied” to other appellants, such as themselves, also in violation of the Equal Protection Clause. See 405 U. S., at 77. They assert that criminal appeals, habeas corpus petitions from state institutions or civil commitment proceedings, and appeals from terminations of parental rights may be filed in forma pauperis in the Oregon Court of Appeals. Jurisdictional Statement 23. We are not told just why these filings are permitted, but the opinion of the Supreme Court of Oregon makes it clear that in forma pauperis appeals are allowed only if supervening law requires a right to a free appeal. 262 Ore., at 384, 498 P. 2d, at 761-762.

If the Oregon courts have interpreted the applicable law to give special rights in the criminal area, in civil cases that result in loss of liberty, and in cases terminating parental rights, we cannot say that this categorization is capricious or arbitrary.

A ,7 Affirmed.

Mr. Justice Stewart

dissents, believing that the doctrine of Boddie v. Connecticut, 401 U. S. 371 (1971), requires reversal of this judgment. See United States v. Kras, 409 U. S. 434, 451 (1973) (dissenting opinion). He is convinced, however, that the Court is so resolutely firm in its contrary view that it would serve no useful purpose to set this case for oral argument.

Mr. Justice Douglas,

dissenting.

The majority today broadens and fortifies the “private preserve for the affluent.” Meltzer v. C. Buck Le Craw & Co., 402 U. S. 954, 961 (opinion of Douglas, J.). The Court upholds a scheme of judicial review whereby justice remains a luxury for the wealthy.

I

Appellants, welfare recipients whose benefits were reduced after adverse determinations by the Oregon Public Welfare Division, were denied access to the Oregon courts for review of those decisions solely on the grounds that they were unable to pay a $25 filing fee. Judicial review of administrative decisions is not otherwise available under Oregon law. I continue to believe that this invidious discrimination against the poverty-stricken — a classification based upon wealth — is proscribed by the Equal Protection Clause of the Fourteenth Amendment. Meltzer, supra; Boddie v. Connecticut, 401 U. S. 371, 383 (Douglas, J., concurring in result); cf. United States v. Kras, 409 U. S. 434, 457 (opinion of Douglas and Brennan, JJ.).

There is an additional consideration relevant here. The majority properly notes that “[t]his Court has long recognized that, even in criminal cases, due process does not require a State to provide an appellate system.” We are concerned in this case not with appellate review of a judicial determination, but with initial access to the courts for review of an adverse administrative determination. By analogizing these two situations, the majority sub silentio answers a question this Court studiously has avoided — whether there is a due process right to judicial review. See 4 K. Davis, Administrative Law Treatise § 28.18. Access to the courts before a person is deprived of valuable interests, at least with respect to questions of law, seems to me to be the essence of due process. Cf. Lindsey v. Normet, 405 U. S. 56, 84 (Douglas, J., dissenting in part). We have recognized that token access cannot satisfy the requirements of due process. See, e. g., Mullane v. Central Hanover Trust Co., 339 U. S. 306. Certainly, no access at all cannot stand in better stead. Appellant Ortwein contends that the order of the Public Welfare Division is not supported by substantial evidence; appellant Faubion contends that the order applicable to her conflicts with federal provisions. Moreover, each contends that the administrative hearing was deficient under Goldberg v. Kelly, 397 U. S. 254, because questions of law were not considered. The majority affirms the judgment without discussing its bearing on appellants’ contention that the Oregon scheme of judicial review discriminates against the poor with respect to an exercise of a fundamental right.

Accordingly, I cannot agree that a “rational justification” will support the Oregon statute as it affects the poor. The primary justification by the State and fixed upon by the majority is the State’s interest in offsetting the expenses of its court system. This interest falls far short of the “compelling interest” required to justify a suspect classification or discrimination which infringes on fundamental rights. See Boddie v. Connecticut, supra, at 382; Shapiro v. Thompson, 394 U. S. 618, 633.

II

The majority affirms the judgment below without the benefit of briefs or argument, relying on United States v. Kras, supra. Although I did not join the Court’s opinion in Boddie v. Connecticut, supra, I am compelled to comment on the propriety of disposing of this case summarily in view of the decision in that case. However one views the merits of Kras, it seems to me that this case falls far closer to Boddie than Kras.

The majority distinguished Kras from Boddie on three grounds. It is only proper that this case be compared on the same basis.

(1) The majority in Kras concluded that a debtor's desire to obtain a discharge in bankruptcy does not implicate a “fundamental interest.” While it is true that our decisions attach less constitutional significance to welfare payments than the interests of the Boddie appellants, we have never decided that there is no constitutional right to judicial review of an adverse administrative determination. The majority also noted in Kras that “[gjaining or not gaining a discharge [in bankruptcy] will effect no change with respect to basic necessities.” 409 U. S., at 445. It is clear in this case, however, that appellants suffered an inroad on their ability to subsist.

(2) Unlike Kras, who had a theoretical opportunity to seek relief from his creditors in a non judicial accommodation, appellants' only avenue of relief lies in the courts.

(3) Unlike Kras, who was afforded the opportunity to pay the bankruptcy filing fee in installments over six months, appellants must file their fee in a lump sum.

Mr. Justice Brennan,

dissenting.

Although I am in substantial agreement with my Brothers Douglas and Marshall that this case is distinguishable from our recent decision in United States v. Kras, 409 U. S. 434 (1973), I see no reason to set this case for argument in light of the majority's firmly held view that Kras is controlling. On the merits, I would reverse for the reasons stated in my separate opinion in Boddie v. Connecticut, 401 U. S. 371, 386 (1971) (concurring in part). See also United States v. Kras, supra, at 457 (opinion of Douglas and Brennan, JJ.).

Mr. Justice Marshall,

dissenting.

I adhere to my dissenting opinion in United States v. Kras, 409 U. S. 434, 458 (1973), and would reverse the judgment on that basis. But even were I to accept the majority position in Kras, there are still important differences between that case and this one which, in my judgment, require that this case be set for argument.

In Kras, the majority correctly noted that “[t]here is no constitutional right to obtain a discharge of one’s debts in bankruptcy.” Id., at 446. Therefore, the only issue in the case was whether the Government could, on the basis of a de jacto wealth classification, limit access to a remedy which it could concededly deny altogether.

The question here is quite different. Appellants seek a judicial remedy for the action of an administrative agency which deprived them of a pre-existing right. As my Brother Douglas demonstrates, it is at very least doubtful that the Due Process Clause permits a State to shield an administrative agency from all judicial review when that agency acts to revoke a benefit previously granted. I share the view of Mr. Justice Brandéis that “[t]he supremacy of law demands that there shall be opportunity to have some court decide whether an erroneous rule of law was applied; and whether the proceeding in.which facts were adjudicated was conducted regularly.” St. Joseph Stock Yards Co. v. United States, 298 U. S. 38, 84 (1936) (concurring opinion). Cf. Yakus v. United States, 321 U. S. 414 (1944); Crowell v. Benson, 285 U. S. 22 (1932).

That opportunity was denied in this case, and important benefits were thereby taken from appellants without affording them a chance to contest the legality of the taking in a court of law. Cf. Fuentes v. Shevin, 407 U. S. 67 (1972).

The extent to which the State may commit to administrative agencies the unreviewable authority to restrict pre-existing rights is one of the great questions of constitutional law about which courts and commentators have debated for generations. See generally Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362 (1953); 4 K. Davis, Administrative Law Treatise § 28.18 (1958). Because I am not ready to decide that question summarily, sub silentio, and without the benefit of full briefing and oral argument, I must dissent from the Court’s decision.

       The Division found that the county agency “acted within its discretion by determining that the claimant’s living arrangement represented a living situation in which shelter and expenses are shared.” The agency’s order explained that that reduction in the room and board allowance was proper because “[t]he eligibility of recipients who share shelter with non-recipients, and do not pay for room and board, shall be determined on a share/fraction basis at [Public Welfare Division] standards.” Record 9. In his petition for review, Ortwein contended that the order was not supported by “reliable, probative and substantial evidence in the whole record.”

       Faubion received an incentive training allowance of $120 per month for approximately five months from a program under the Manpower Development and Training Act of 1962, as amended, 76 Stat. 23, 42 U. S. C. §§ 2571-2574. Record 12. Faubion also was receiving over $210 per month through a state-administered AFDC program. Jurisdictional Statement 4; Record 11. States, in making their income calculations under AFDC, deduct from gross income all expenses “reasonably attributable” to the earning of the income. 42 U. S. C. §602 (a) (7); 45 CFR § 233.20 (a) (3) (iv) (Sept. 1972). Faubion claimed that she had work-training expenses of $20 per month for essential clothing and grooming, of $20 per month for lunches on the job, of $30 per month for convenience foods for family use made necessary because of her job, of $5 per month for oil, tuneups and repairs, and of $5 per month for miscellaneous school supplies. Record 13. Although the Division allowed some deductions, it determined that the remaining expenses were not “reasonably attributable” to the training program. Record 12. On appeal, Faubion sought to challenge this finding.

       See also Huffman v. Boersen, 406 U. S. 337 (1972).

       These evidentiary hearings, of course, must meet the minimal requirements of due process. Goldberg v. Kelly, 397 U. S. 254, 266-271 (1970). Appellants have alleged that the hearings were deficient in several ways, Jurisdictional Statement 9-10, but neither the record nor the opinion of the Oregon court provides support for these contentions.

       Appellants also claim a violation of their First Amendment right to petition for redress. Our discussion of the Due Process Clause, however, demonstrates that appellants’ rights under the First Amendment have been fully satisfied.

      The majority’s statement that “[t]his Court has long recognized that, even in criminal cases, due process does not require a State to provide an appellate system,” ante, at 660, is thus true, but irrelevant and misleading. The cases cited by the majority all involve efforts to secure appellate review of a decision by a lower court. Here, in contrast, no court has ever examined appellants’ claims on the merits. Appellants assert only that they must have some access to some court to contest the legality of administrative action adversely affecting them.


author: Per Curiam. Mr. Chief Justice Burger, Mr. Justice Rehnquist,

text:
    PAPISH v. BOARD OF CURATORS OF THE UNIVERSITY OF MISSOURI et al.
    No. 72-794.
    Decided March 19, 1973
   Per Curiam.

Petitioner, a graduate student in the University of Missouri School of Journalism, was expelled for distributing on campus a newspaper “containing forms of indecent speech” in violation of a bylaw of the Board of Curators. The newspaper, the Free Press Underground, had been sold on this state university campus for more than four years pursuant to an authorization obtained from the University Business Office. The particular newspaper issue in question was found to be unacceptable for two reasons. First, on the front cover the publishers had reproduced a political cartoon previously printed in another newspaper depicting policemen raping the Statue of Liberty and the Goddess of Justice. The caption under the cartoon read; . . With Liberty and Justice for All.” Secondly, the issue contained an article entitled “M f Acquitted,” which discussed the trial and acquittal on an assault charge of a New York City youth who was a member of an organization known as “Up Against the Wall, M- — f-—.”

Following a hearing, the Student Conduct Committee found that petitioner had violated Par. B of Art. Y of the General Standards of Student Conduct which requires students “to observe generally accepted standards of conduct” and specifically prohibits “indecent conduct or speech.” Her expulsion, after affirmance first by the Chancellor of the University and then by its Board of Curators, was made effective in the middle of the spring semester. Although she was then permitted to remain on campus until the end of the semester, she was not given credit for the one course in which she made a passing grade.

After exhausting her administrative review alternatives within the University, petitioner brought an action for declaratory and injunctive relief pursuant to 42 U. S. C. § 1983 in the United States District Court for the Western District of Missouri. She claimed that her expulsion was improperly premised on activities protected ' by the First Amendment. The District Court denied relief, 331 F. Supp. 1321, and the Court of Appeals affirmed, one judge dissenting. 464 F. 2d 136. Rehearing en banc was denied by an equally divided vote of all the judges in the Eighth Circuit.

The District Court's opinion rests, in part, on the conclusion that the banned issue of the newspaper was obscene. The Court of Appeals found it unnecessary to decide that question. Instead, assuming that the newspaper was not obscene and that its distribution in the community at large would be protected by the First Amendment, the court held that on a university campus “freedom of expression” could properly be “subordinated to other interests such as, for example, the conventions of decency in the use and display of language and pictures.” Id., at 145. The court concluded that “[t]he Constitution does not compel the University ... [to allow] such publications as the one in litigation to be publicly sold or distributed on its open campus.” Ibid.

This case was decided several days before we handed down Heady v. James, 408 U. S. 169 (1972), in which, while recognizing a state university’s undoubted prerogative to enforce reasonable rules governing student conduct, we reaffirmed that “state colleges and universities are not enclaves immune from the sweep of the First Amendment.” Id., at 180. See Tinker v. Des Moines Independent School District, 393 U. S. 503 (1969). We think Healy makes it clear that the mere dissemination of ideas — no matter how offensive to good taste — on a state university campus may not be shut off in the name alone of “conventions of decency.” Other recent precedents of this Court make it equally clear that neither the political cartoon nor the headline story involved in this case can be labeled as constitutionally obscene or otherwise unprotected. E. g., Kois v. Wisconsin, 408 U. S. 229 (1972); Gooding v. Wilson, 405 U. S. 518 (1972); Cohen v. California, 403 U. S. 15 (1971). There is language in the opinions below which suggests that the University’s action here could be viewed as an exercise of its legitimate authority to enforce reasonable regulations as to the time, place, and manner of speech and its dissemination. While we have repeatedly approved such regulatory authority, e. g., Healy v. James, 408 U. S., at 192-193, the facts set forth in the opinions below show clearly that petitioner was expelled because of the disapproved content of the newspaper rather than the time, place, or manner of its distribution.

Since the First Amendment leaves no room for the operation of a dual standard in the academic community with respect to the content of speech, and because the state University’s-action here cannot be justified as a nondiscriminatory application of reasonable rules governing conduct, the judgments of the courts below must be reversed. Accordingly the petition for a writ of certiorari is granted, the case is remanded to the District Court, and that court is instructed to order the University to restore to petitioner any course credits she earned for the semester in question and, unless she is barred from reinstatement for valid academic reasons, to reinstate her as a student in the graduate program.

Reversed and remanded.

Mr. Chief Justice Burger,

dissenting.

I join the dissent of Justice Rehnquist which follows and add a few observations.

The present case is clearly distinguishable from the Court’s prior holdings in Cohen, Gooding, and Rosenfeld, as erroneous as those holdings are. Cohen, Gooding, and Rosenfeld dealt with prosecutions under criminal statutes which allowed the imposition of severe penalties. Unlike such traditional First Amendment cases, we deal here with rules which govern conduct on the campus of a state university.

In theory, at least, a university is not merely an arena for the discussion of ideas by students and faculty; it is also an institution where individuals learn to express themselves in acceptable, civil terms. We provide that environment to the end that students may learn the self-restraint necessary to the functioning of a civilized society and understand the need for those external restraints to which we must all submit if group existence is to be tolerable.

I find it a curious — even bizarre — extension of Cohen, Gooding, and Rosenfeld to say that a state university is impotent to deal with conduct such as that of the petitioner. Students are, of course, free to criticize the university, its faculty, or the Government in vigorous, or even harsh, terms. But it is not unreasonable or violative of the Constitution to subject to disciplinary action those individuals who distribute publications which are at the same time obscene and infantile. To preclude a state university or college from regulating the distribution of such obscene materials does not protect the values inherent in the First Amendment; rather, it demeans those values. The anomaly of the Court's holding today is suggested by its use of the now familiar “code” abbreviation for the petitioner’s foul language.

The judgment of the Court of Appeals was eminently correct. It should be affirmed.

Mr. Justice Rehnquist,

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

dissenting.

We held in Healy v. James, 408 U. S. 169, 180 (1972), that “state colleges and universities are not enclaves immune from the sweep of the First Amendment.” But that general proposition does not decide the concrete case now before us. Healy held that the public university there involved had not afforded adequate notice and hearing of the action it proposed to take with respect to the students involved. Here the Court of Appeals found, and that finding is not questioned in this Court’s opinion, that “the issue arises in the context of a student dismissal, after service of written charges and after a full and fair hearing, for violation of a University rule of conduct.” 464 F. 2d 136, 138.

Both because I do not believe proper exercise of our jurisdiction warrants summary reversal in a case dependent in part on assessment of the record and not squarely governed by one of our decisions, and because I have serious reservations about the result reached by the Court, I dissent from the summary disposition of this case.

I

Petitioner Papish has for many years been a graduate student at the University of Missouri. Judge Stephenson, writing for the Court of Appeals in this case, summarized her record in these words:

“Miss Papish’s academic record reveals that she was in no rush to complete the requirements for her graduate degree in Journalism. She possesses a 1958 academic degree from the University of Connecticut; she was admitted to graduate school at the University of Missouri in September in 1963; and although she attended school through the fall, winter, and summer semesters, she was, after 6 years of work, making little, if any, significant progress toward the achievement of her stated academic objective. At the time of her dismissal, Miss Papish was enrolled in a one-hour course entitled ‘Research Journalism’ and in a three-hour course entitled ‘Ceramics 4.’ In the semester immediately preceding her dismissal, she was enrolled only in ‘Ceramics 3.’ ” 464 F. 2d, at 138 n. 2.

Whatever may have been her lack of ability or motivation in the academic area, petitioner had been active on other fronts. In the words of the Court of Appeals:

“3. On November 1, 1967, the Faculty Committee on Student Conduct, after notice of charges and a hearing, placed Miss Papish on disciplinary probation for the remainder of her student status at the University. The basis for her probation was her violation of the general standard of student conduct.... This action arose out of events which took place on October 14, 1967 at a time when the University was hosting high school seniors and their parents for the purpose of acquainting them with its educational programs and other aspects of campus life. She specifically was charged, inter alia, with openly distributing, on University grounds, without the permission of appropriate University personnel, two non-University publications of the Students for Democratic Society (SDS). It was alleged in the notice of charges, and apparently established at the ensuing hearing, that one of these publications, the New Left Notes, contained ‘pornographic, indecent and obscene words, “f — ,” “bull s — ,” and “sh--s.” ’ The notice of charges also recites that the other publication, The CIA at College: Into Twilight and Back, contained ‘a pornographic and indecent picture depicting two rats apparently fornicating on its cover . . .
“4. Some two weeks prior to the incident causing her dismissal, Miss Papish was placed on academic probation because of prolonged submarginal academic progress. It was a condition of this probation that she pursue satisfactory work on her thesis, and that such work be evidenced by the completion and presentation of several completed chapters to her thesis advisor by the end of the semester. By letter dated January 31, 1969, Miss Papish was notified that her failure to comply with this special condition within the time specified would result in the termination of her candidacy for a graduate degree.” Id., at 138-139, nn. 3, 4.

It was in the light of this background that respondents finally expelled petitioner for the incident described in the Court’s opinion. The Court fails to note, however, two findings made by the District Court with respect to the circumstances under which petitioner hawked her newspaper near the memorial tower of the University:

“The Memorial Tower is the central unit of integrated structures dedicated to the memory of those students who died in the Armed Services in World Wars I and II. Other adjacent units include the Student Union and a Non-Sectarian chapel for prayer and meditation. Through the Memorial Arch pass parents of students, guests of the University, students, including many persons under 18 years of age and high school students.” 331 F. Supp. 1321, 1325 n. 4.
“The plaintiff knowingly and intentionally participated in distributing the publication to provoke a confrontation with the authorities by pandering the publication with crude, puerile, vulgar obscenities.” Id., at 1325.

II

I continue to adhere to the dissenting views expressed in Rosenfeld v. New Jersey, 408 U. S. 901 (1972), that the public use of the word “M-f-” is “lewd and obscene” as those terms were used by the Court in Chaplinsky v. New Hampshire, 315 U. S. 568 (1942). There the Court said:

“There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Id., at 571-572.

But even were I convinced of the correctness of the Court’s disposition of Rosenfeld, I would not think it should control the outcome of this case. It simply does not follow under any of our decisions or from the language of the First Amendment itself that because petitioner could not be criminally prosecuted by the Missouri state courts for the conduct in question, she may not therefore be expelled from the University of Missouri for the same conduct. A state university is an establishment for the purpose of educating the State’s young people, supported by the tax revenues of the State’s citizens. The notion that the officials lawfully charged with the governance of the university have so little control over the environment for which they are responsible that they may not prevent the public distribution of a newspaper on campus which contained the language described in the Court’s opinion is quite unacceptable to me, and I would suspect would have been equally unacceptable to the Framers of the First Amendment. This is indeed a case where the observation of a unanimous Court in Chaplinsky that "such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality” applies with compelling force.

Ill

The Court cautions that “disenchantment with Miss Papish’s performance, understandable as it may have been, is no justification for denial of constitutional rights.” Quite so. But a wooden insistence on equating, for constitutional purposes, the authority of the State to criminally punish with its authority to exercise even a modicum of control over the university which it operates, serves neither the Constitution nor public education well. There is reason to think that the “disenchantment” of which the Court speaks may, after this decision, become widespread among taxpayers and legislators. The system of tax-supported public universities which has grown up in this country is one of its truly great accomplishments; if they are to continue to grow and thrive to serve an expanding population, they must have something more than the grudging support of taxpayers and legislators. But one can scarcely blame the latter if, told by the Court that their only function is to supply tax money for the operation of the university, the “disenchantment” may reach such a point that they doubt the game is worth the candle.

       This charge was contained in a letter from the University’s Dean of Students, which is reprinted in the Court of Appeals’ opinion. 464 F. 2d 136, 139 (CA8 1972).

       In pertinent part, the bylaw states:
      ''Students enrolling in the University assume an obligation and are expected by the University to conduct themselves in a manner compatible with the University's functions and missions as an educational institution. For that purpose students are required to observe generally accepted standards of conduct. . . . [I]ndecent conduct or speech . . . are examples of conduct which would contravene this standard. . . .” 464 F. 2d, at 138.

       Miss Papish, a 32-year-old graduate student, was admitted to the graduate school of the University in September 1963. Five and one-half years later, when the episode under consideration occurred, she was still pursuing her graduate degree. She was on "academic probation” because of “prolonged submarginal academic progress,” and since November 1, 1967, she also had been on disciplinary probation for disseminating Students for a Democratic Society literature found at a university hearing to have contained “pornographic, indecent and obscene words.” This dissemination had occurred at a time when the University was host to high school seniors and their parents. 464 F. 2d, at 139 nn. 3 and 4. But disenchantment with Miss Papish's performance, understandable as it may have been, is no justification for denial of constitutional rights.

       Prefatorily, the District Court held that petitioner, who was a nonresident of Missouri, was powerless to complain of her dismissal because she enjoyed no “federally protected or other right to attend a state university of a state of which she is not a domiciled resident.” 331 F. Supp. 1321, 1326. The Court of Appeals, because it affirmed on a different ground, deemed it “unnecessary to comment” upon this rationale. 464 F. 2d, at 141 n. 9. The District Court’s reasoning is directly inconsistent with a long line of controlling decisions of this Court. See Perry v. Sindermann, 408 U. S. 593, 596-598 (1972), and the cases cited therein.

       Under the authority of Gooding and Cohen, we have reversed or vacated and remanded a number of cases involving the same expletive used in this newspaper headline. Cason v. City of Columbus, 409 U. S. 1053 (1972); Rosenfeld v. New Jersey, 408 U. S. 901 (1972); Lewis v. City of New Orleans, 408 U. S. 913 (1972); Brown v. Oklahoma, 408 U. S. 914 (1972). Cf. Keefe v. Geanakos, 418 F. 2d 359, 361 and n. 7 (CA1 1969).

       It is true, as Mr. Justice Rehnquist’s dissent indicates, that the District Court emphasized that the newspaper was distributed near the University’s memorial tower and concluded that petitioner was engaged in “pandering.” The opinion makes clear, however, that the reference to "pandering” was addressed to the content of the newspaper and to the organization on the front page of the cartoon and the headline, rather than to the manner in which the newspaper was disseminated. 331 F. Supp., at 1325, 1328, 1329, 1330, 1332. As the Court of Appeals opinion states, “[t]he facts are not in dispute.” 464 F. 2d, at 138. The charge against petitioner was quite unrelated to either the place or manner of distribution. The Dean’s charge stated that the “forms of speech” contained in the newspaper were “improper on the University campus.” Id., at 139. Moreover, the majority below quoted without disapproval petitioner’s verified affidavit stating that “no disruption of the University’s functions occurred in connection with the distribution.” Id., at 139-140. Likewise, both the dissenting opinion in the Court of Appeals and the District Court opinion refer to this same uncontroverted fact. Id., at 145; 331 F. Supp., at 1328. Thus, in the absence of any disruption of campus order or interference with the rights of others, the sole issue was whether a state university could proscribe this form of expression.

        Cohen v. California, 403 U. S. 15, 27 (1971) (Blackmun, J., with whom Burger, C. J., and Black, J., joined, dissenting); Gooding v. Wilson, 405 U. S. 518, 528 (1972) (Burger, C. J., dissenting), 534 (Blackmun, J., dissenting); Rosenfeld v. New Jersey, 408 U. S. 901, 902 (1972) (Burger, C. J., dissenting), 903 (Powell, J., dissenting), 909 (Rehnquist, J., dissenting).