text:
    No. 1037,
    Misc.
    Mahoney v. LaVallee, Warden.

      Gretchen White Oberman and Leon B. Polsky for petitioner.

      Louis J. Lefkowitz, Attorney General of New York, Samuel A. Hirshowitz, First Assistant Attorney General, and Brenda Soloff, Assistant Attorney General, for respondent.
   C. A. 2d Cir. Certiorari denied.

Mr. Justice Douglas and Mr. Justice White are of the opinion that certiorari should be granted.


source: Caselaw Access Project

license: Public Domain

text:
    No. 1097,
    Misc.
    Harris v. Illinois.

      John J. Cleary for petitioner.

      William J. Scott, Attorney General of Illinois, and James R. Thompson, Joel M. Flaum, James B. Zagel, and Thomas J. Immel, Assistant Attorneys General, for respondent.
   App. Ct. Ill., 1st Dist. Certiorari denied.

Mr. Justice White is of the opinion that certiorari should be granted.


text:
    No. 1104,
    Misc.
    Jacques v. New Jersey.

      Leo Kaplowitz for respondent.
   Sup. Ct. N. J. Certiorari denied.

Mr. Justice Douglas is of the opinion that certiorari should be granted.

Mr. Justice Harlan dissents for the reasons stated in his separate opinion in North Carolina v. Pearce, ante, p. 744.


text:
    No. 550,
    Misc.
    Jamison v. United States.

      Solicitor General Griswold for the United States.
   C. A. 2d Cir. Certiorari denied.

Mr. Justice Harlan and Mr. Justice White are of the opinion that certiorari should be granted.


text:
    No. 1440,
    Misc.
    Gonsior v. California.

      Thomas C. Lynch, Attorney General of California, Doris H. Maier, Assistant Attorney General, and Edsel W. Haws, Deputy Attorney General, for respondent.
   Ct. App. Cal., 3d App. Dist. Certiorari denied.

The Chief Justice and Mr. Justice Marshall are of the opinion that certiorari should be granted.


text:
    No. 1824,
    Misc.
    Byrnes v. United States.

      Solicitor General Griswold, Assistant Attorney General Wilson, and Beatrice Rosenberg for the United States.
   C. A. 9th Cir. Certiorari denied.

Mr. Justice Marshall took no part in the consideration or decision of this petition.


text:
    No. 1868,
    Misc.
    Neal et al. v. Saga Shipping Co., S. A., et al.

      Arthur J. Mandell for petitioners.

      E. D. Vickery for Saga Shipping Co., S. A., and Robert Eikel for Strachan Shipping Co., respondents.
   C. A. 5th Cir. Certiorari denied.

Mr. Justice Black and Mr. Justice Douglas are of the opinion that certiorari should be granted.


text:
    No. 1941,
    Misc.
    Richards v. United States.

      Albert Datz for petitioner.

      Solicitor General Griswold, Assistant Attorney General Wilson, Beatrice Rosenberg, and Roger A. Pauley for the United States.
   C. A. 5th Cir. Certiorari denied.

The Chief Justice, Mr. Justice Brennan, and Mr. Justice Stewart are of the opinion that certiorari should be granted.


text:
    No. 1945,
    Misc.
    Hernandez v. Texas.

      Clyde W. Woody and Marian S. Rosen for petitioner.

      Crawford C. Martin, Attorney General of Texas, for respondent.
   Ct. Crim. App. Tex. Certiorari denied.

The Chief Justice and Mr. Justice Marshall are of the opinion that certiorari should be granted.


text:
    No. 297.
    No. 1113.
    No. 1191.
    No. 1235.
    No. 1257.
    No. 1769,
    Misc.
    No. 1795,
    Misc.
    No. 1930,
    Misc.
    Immigration and Naturalization Service v. Stanisic, Telephone Users Association, Inc. v. Public Service Commission of the District of Columbia et al., Morgan v. Nelson et al., Hubbard et al. v. Kiefel, Lopo v. Saks Fifth Avenue, Goff v. Veterans Administration, Bernstein v. Catherwood, Industrial Commissioner of New York, Smiley v. California et al.,
   ante, p. 62;

ante, p. 910;

ante, p. 911;

ante, p. 908;

ante, p. 211;

ante, p. 927;

ante, p. 928; and ante, p. 919. Petitions for rehearing denied.


text:
    No. 1670,
    Misc.
    Moye v. Sioux City & New Orleans Barge Lines, Inc.,

      Raymond H. Kierr and Eldon E. Fallon on the motion.
   ante, p. 913. Motion of American Trial Lawyers Association, Admiralty Section, for leave to file a brief as amicus curiae denied. Petition for rehearing denied.


author: Per Curiam.

text:
    RISTUCCIA et ux. v. ADAMS et al.
    No. 191.
    Decided October 13, 1969
   Per Curiam.

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


text:
    HAGAN et al. v. REAGAN, GOVERNOR OF CALIFORNIA, et al.
    No. 279.
    Decided October 13, 1969
   Per Curiam.

The judgment is affirmed. Williams v. Virginia State Board of Elections, 393 U. S. 320.


text:
    SPALDING LAUNDRY & DRY CLEANING CO. v. DEPARTMENT OF REVENUE OF KENTUCKY
    No. 123.
    Decided October 13, 1969

      T. Kennedy Helm, Jr., for appellant.

      William S. Riley, Assistant Attorney General of Kentucky, for appellee.
   Per Curiam.

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


text:
    DUFFY STORAGE & MOVING CO. et al. v. CITY AND COUNTY OF DENVER et al.
    No. 132.
    Decided October 13, 1969

      George Louis Creamer for appellants.

      Max P. Zall for appellees.
   Per Curiam.

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


text:
    GETTIG EQUIPMENT CORP. et al. v. BOARD OF ZONING APPEALS OF CLEVELAND et al.
    No. 136.
    Decided October 13, 1969

      Walter L. Greene for appellants.

      William, T. McKnight for appellees.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    FURMAN v. CITY OF NEW YORK et al.
    No. 142.
    Decided October 13, 1969

      Louis B. Scheinman for appellant.

      J. Lee Rankin, Stanley Buchsbaum, and Theodore R. Lee for appellees.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    IMPERIAL REFINERIES OF MINNESOTA, INC. v. CITY OF ROCHESTER
    No. 171.
    Decided October 13, 1969

      Marshall S. Snyder for appellant.
   Per Curiam.

The appeal is dismissed for want of a substantial federal question.

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


text:
    WHEELER v. VERMONT
    No. 199.
    Decided October 13, 1969

      James C. Cleveland for appellant.

      Jerome R. Heller stein for appellee.
   Per Curiam.

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


text:
    JORDAN v. ARIZONA ex rel. NELSON, ATTORNEY GENERAL
    No. 204.
    Decided October 13, 1969

      Stewart L. Udall for appellant.

      Gary K. Nelson, Attorney General of Arizona, appellee, pro se.

   Per Curiam.

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


text:
    SHAPIRO, COMMISSIONER OF WELFARE OF CONNECTICUT v. SOLMAN et al.
    No. 215.
    Decided October 13, 1969

      Robert K. Killian, Attorney General of Connecticut, and Francis J. MacGregor, Assistant Attorney General, for appellant.

      Francis X. Dineen for appellees.
   Per Curiam.

The motion to affirm is granted and the judgment is affirmed. See King v. Smith, 392 U. S. 309.


text:
    BRADESKU v. BRADESKU
    No. 238.
    Decided October 13, 1969

      A. Albert Perelman for appellant.
   Per Curiam.

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


text:
    MAINE et al. v. SHONE
    No. 261.
    Decided October 13, 1969

      James S. Erwin, Attorney General of Maine, and John W. Benoit, Jr., Assistant Attorney General, for appellants.
   Per Curiam.

The motion of the appellee for leave to proceed in forma pauperis is granted. The judgments of the United States Court of Appeals for the First Circuit and the United States District Court for the District of Maine are vacated and the case is remanded to said United States District Court with directions to dismiss the case as moot.


text:
    INTERCO INC. v. RHODEN, CHAIRMAN, MISSISSIPPI TAX COMMISSION
    No. 306.
    Decided October 13, 1969

      James Leon Young for appellant.

      John E. Stone for appellee.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed.


text:
    KELLAR v. NEAL et ux.
    No. 308.
    Decided October 13, 1969
   Per Curiam.

The motion to dispense with printing the jurisdictional statement is granted. The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    HIYANE et al. v. HOUSE OF VISION, INC.
    No. 320.
    Decided October 13, 1969

      Leonard Rose for appellants.

      Lawrence 3. West and Leo Spira for appellee.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    SHIKARA v. MARYLAND CASUALTY CO.
    No. 324.
    Decided October 13, 1969
   Per Curiam.

The motion to dispense with printing the jurisdictional statement is granted. The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    BERNARD v. NEW YORK CITY EMPLOYEES’ RETIREMENT SYSTEM et al.
    No. 177,
    Misc.
    Decided October 13, 1969

      J. Lee Rankin and Stanley Buchsbaum for New York City Employees’ Retirement System, and George N. Kanoff for Lipori, appellees.
   Per Curiam.

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


text:
    SELLERS v. UNITED STATES
    No. 264,
    Misc.
    Decided October 13, 1969

      Howard Moore, Jr., for petitioner.

      Solicitor General Griswold for the United States.
   Per Curiam.

Upon consideration of the suggestion of the Solicitor General and an examination of the entire record, the motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the United States District Court for the Northern District of Georgia for further consideration in light of Alderman v. United States, 394 U. S. 165.


text:
    WHITLEY v. NEW YORK
    No. 268,
    Misc.
    Decided October 13, 1969

      Henry B. Rothblatt and Emma A. Rothblatt for appellant.
   Per Curiam.

The appeal is dismissed for want of a substantial federal question.


text:
    STOECKLE v. WISCONSIN
    No. 272,
    Misc.
    Decided October 13, 1969
   Per Curiam.

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


text:
    PURYEAR v. HOGAN, DISTRICT ATTORNEY OF NEW YORK COUNTY, et al.
    No. 336,
    Misc.
    Decided October 13, 1969

      Frank S. Hogan, pro se, and Michael R. Juviler for Hogan, and Louis J. Lejkowitz, Attorney General of New York, pro se, Samuel A. Hirshowitz, First Assistant Attorney General, and Maria L. Marcus, Assistant Attorney General, for Lefkowitz, appellees.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    BEACHAM v. BRATERMAN et al.
    No. 404.
    Decided October 20, 1969

      Bruce S. Rogow for appellant.

      Earl Faircloth, Attorney General of Florida, and T. T. Turnbull and James McGuirk, Assistant Attorneys General, for appellees.
   Per Curiam.

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

Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted.


text:
    WHIDDON v. UNITED STATES
    No. 267,
    Misc.
    Decided October 20, 1969

      Solicitor General Griswold for the United States.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the United States District Court for the Eastern District of Texas for resentencing. Prince v. United States, 352 U. S. 322, and Heflin v. United States, 358 U. S. 415.


author:
Per Curiam.
      Mr. Justice Black,

text:
    SIMPSON v. UNION OIL CO. OF CALIFORNIA
    No. 419.
    Decided October 27, 1969

      Maxwell Keith for petitioner.

      Moses Lasky for respondent.
   Per Curiam.

This case represents the aftermath of our decision in Simpson v. Union Oil Co., 377 U. S. 13, where we held that a “consignment” agreement for the sale of gasoline, required by Union Oil of lessees of its retail outlets, violated the Sherman Act, 26 Stat. 209, 15 U. S. C. § 1 et seq. The case was remanded for a hearing on other issues and for a determination of damages. The last sentence of the Court’s opinion stated:

“We reserve the question whether, when all the facts are known, there may be any equities that would warrant only prospective application in damage suits of the rule governing price fixing by the ‘consignment’ device which we announce today.” Id., at 24-25.

On remand, the District Court interpreted this sentence as an invitation to determine if any “equities” were present which would warrant precluding the imposition of damages on Union Oil. Its finding was that an application of the rule announced by this Court to the damages action would be unfair, on the ground that the decision in United States v. General Electric Co., 272 U. S. 476, gave Union Oil a reasonable basis for believing that its actions were entirely lawful. The Court of Appeals affirmed.

The petition for certiorari presents the question whether in this case the principles we announced in Simpson v. Union Oil Co. should be made prospective in the present litigation. We grant the petition on that question and deny it on the other questions tendered; and we reverse the judgment below.

We held when the case was here before that on the facts of record the use of the “consignment” device was within the prohibited ban of price fixing for nonpatented articles, 377 U. S., at 16-24, and that “on the issue of resale price maintenance under the Sherman Act there is nothing left to try, for there was an agreement for resale price maintenance, coercively employed.” Id., at 24.

The question we reserved was not an invitation to deny the fruits of successful litigation to this petitioner. Congress has determined the causes of action that arise from antitrust violations; and there has been an adjudication that a cause of action against respondent has been established. Formulation of a rule of law in an Article III case or controversy which is prospective as to the parties involved in the immediate litigation would be most unusual, especially where the rule announced was not innovative. Since parties in other cases might be shown to have structured product distribution on quite different considerations, we reserved the question whether in some of those other situations equity might warrant the conclusion that prospective application was the only fair course.

Reversed.

Mr. Justice Black,

concurring in part and dissenting in part.

I wholeheartedly concur with the decision of the Court that both courts below were in error in holding that petitioner was not entitled to any damages in this case. I dissent, however, from the Court’s denial of cer-tiorari on another question that petitioner raises, the effect of which is to leave standing that part of the District Court’s judgment setting aside petitioner’s jury verdict as excessive and granting respondent a new trial on the issue of damages.

The District Court’s grant of a new trial did not rest upon a finding that any of the evidence on the issue of damages was improperly admitted or that the instructions to the jury were erroneous. The judge granted the new trial on the ground that the $160,000 verdict “is against the weight of the evidence, shocks the conscience, is grossly and monstrously excessive, is the result either of passion and prejudice or of consideration by the jury of factors irrelevant to the litigation, is speculative, conjectural and a miscarriage of justice.” Civil No. 37,344 (D. C. N. D. Cal., filed May 23, 1967).

I do not agree that under the facts of this case the verdict should have shocked the court’s conscience. Certainly the $160,000 award does not shock my conscience, nor does it seem to me monstrous or the result of passion and prejudice on the part of the jury. Petitioner’s growing filling station business was destroyed by respondent through conduct that this Court held to be in violation of the antitrust laws. See Simpson v. Union Oil Co., 377 U. S. 13 (1964). At the time the cause of action arose petitioner’s life expectancy was about 25 years. The jury had a right to believe that his business would have grown through those 25 years, and no one can say with any absolute assurance that the jury verdict was in excess of the immediate and long-term returns he might have realized from his business during that period.

Antitrust damages such as those involved here are bound to be “speculative” and “conjectural” to some extent. When a person wrongfully takes government bonds worth $10,000 on the market, the damages can be precisely measured. But when as here a young man’s business is wiped out root and branch by a wrongdoer, the measurement of the victim’s damages is not so simple a matter. This is true because no one can infallibly predict how long that business would have continued to grow and flourish or precisely how much the business would have been worth to him in 25 years. But certainly a fair and just legal system is not required by difficulties of proof to throw up its hands in despair and leave the sufferer’s damage to be borne by him while the person who did the wrong goes scot free. This Court has refused under such circumstances to hold that our system of justice is so helpless to do justice. In this very antitrust field our Court has specifically and pointedly refused to permit antitrust violators to escape liability for their wrongs on the argument that damages must not be awarded because they are uncertain and speculative. The Court in a ringing opinion by Mr. Chief Justice Stone in Bigelow v. RKO Radio Pictures, 327 U. S. 251 (1946), emphatically declined to acknowledge such judicial helplessness. There we held that the award of damages for the victim of an antitrust violation must not be denied on the spurious argument that they cannot be proved with the certainty of the value of stolen bonds. In that case this Court said:

“[I]n the absence of more precise proof, the jury could conclude as a matter of just and reasonable inference from the proof of defendants’ wrongful acts and their tendency to injure plaintiffs’ business, and from the evidence of the decline in prices, profits and values, not shown to be attributable to other causes, that defendants’ wrongful acts had caused damage to the plaintiffs.” Id., at 264.
“The most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty which his own wrong has created.” Id., at 265.

Bigelow and other cases clearly establish the rule that the existence of damages in antitrust actions is a question for the jury and that the inherent uncertainty in the amount of damages is to be resolved against the wrongdoer. In my opinion the jury below did exactly what we said it was entitled to do in Bigelow. I would therefore require that the jury verdict be reinstated without further ado.

Mr. Justice Stewart would deny the petition for certiorari.

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

        Perkins v. Standard Oil Co. of California, 395 U. S. 642 (1969) ; Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U. S. 690 (1962).


text:
    WASHUM, dba LOS ANGELES-YUMA FREIGHT LINES, et al. v. UNITED STATES et al.
    No. 374.
    Decided October 27, 1969

      James W. Wrape and Robert E. Joyner for appellants.

      Solicitor General Griswold, Assistant Attorney General McLaren, Robert W. Ginnane, and Nahum Litt for the United States et al., and Robert F. Schureman for Consolidated Copperstate Lines et al., appellees.
   Per Curiam.

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


text:
    COX, GUARDIAN v. TENNESSEE, BY AND THROUGH ITS ATTORNEY GENERAL, et al.
    No. 430.
    Decided October 27, 1969

      Thomas F. Turley, Jr., for appellant.

      Thomas E. Fox, Deputy Attorney General of Tennessee, and C. Hayes Cooney, Assistant Attorney General, for appellees.
   Per Curiam.

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


text:
    ALEXANDER et al. v. HOLMES COUNTY BOARD OF EDUCATION et al.
    No. 632.
    Argued October 23, 1969
    Decided October 29, 1969

      Jack Greenberg argued the cause for petitioners. With him on the brief were James M. Nabrit III, Norman C. Amaker, Melvyn Zarr, and Charles L. Black, Jr.

      Assistant Attorney General Leonard argued the cause for the United States. With him on the memorandum was Solicitor General Griswold. A. F. Summer, Attorney General of Mississippi, and John C. Satterfield argued the cause and filed a brief for respondents other than the United States.

      Louis F. Oberdorfer argued the cause for the Lawyers’ Committee for Civil Rights Under Law as amicus curiae urging reversal. With him on the brief were John W. Douglas, Bethuel M. Webster, Cyrus R. Vance, Asa Sokolow, John Schafer, John Door, Richard C. Dinkel-spiel, Arthur II. Dean, Lloyd N. Cutler, Bruce Bromley, Berl I. Bernhard, Timothy B. Dyk, and Michael R. Klein.

      Richard B. Sobol and David Rubin filed a brief for the National Education Association as amicus curiae urging reversal. The Tennessee Federation for Constitutional Government filed a brief as amicus curiae.

   Per Curiam.

This case comes to the Court on a petition for cer-tiorari to the Court of Appeals for the Fifth Circuit. The petition was granted on October 9, 1969, and the case set down for early argument. The question presented is one of paramount importance, involving as it does the denial of fundamental rights to many thousands of school children, who are presently attending Mississippi schools under segregated conditions contrary to the applicable decisions of this Court. Against this background the Court of Appeals should have denied all motions for additional time because continued operation of segregated schools under a standard of allowing “all deliberate speed” for desegregation is no longer constitutionally permissible. Under explicit holdings of this Court the obligation of every school district is to terminate dual school systems at once and to operate now and hereafter only unitary schools. Griffin v. School Board, 377 U. S. 218, 234 (1964); Green v. County School Board of New Kent County, 391 U. S. 430, 438-439, 442 (1968). Accordingly,

It is hereby adjudged, ordered, and decreed:

1. The Court of Appeals’ order of August 28, 1969, is vacated, and the case is remanded to that court to issue its decree and order, effective immediately, declaring that each of the school districts here involved may no longer operate a dual school system based on race or color, and directing that they begin immediately to operate as unitary school systems within which no person is to be effectively excluded from any school because of race or color.

2. The Court of Appeals may in its discretion direct the schools here involved to accept all or any part of the August 11, 1969, recommendations of the Department of Health, Education, and Welfare, with any modifications which that court deems proper insofar as those recommendations insure a totally unitary school system for all eligible pupils without regard to race or color.

The Court of Appeals may make its determination and enter its order without further arguments or submissions.

3. While each of these school systems is being operated as a unitary system under the order of the Court of Appeals, the District Court may hear and consider objections thereto or proposed amendments thereof, provided, however, that the Court of Appeals’ order shall be complied with in all respects while the District Court considers such objections or amendments, if any are made. No amendment shall become effective before being passed upon by the Court of Appeals.

4. The Court of Appeals shall retain jurisdiction to insure prompt and faithful compliance with its order, and may modify or amend the same as may be deemed necessary or desirable for the operation of a unitary school system.

5. The order of the Court of Appeals dated August 28, 1969, having been vacated and the case remanded for proceedings in conformity with this order, the judgment shall issue forthwith and the Court of Appeals is requested to give priority to the execution of this judgment as far as possible and necessary.


text:
    JOHNSON v. STATE BAR OF CALIFORNIA et al.
    No. 434.
    Decided November 10, 1969
   Per Curiam.

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


text:
    TRANSPORTATION UNLIMITED OF CALIFORNIA, INC. v. UNITED STATES et al.
    No. 451.
    Decided November 10, 1969

      Samuel B. Picone for appellant.

      Solicitor General Griswold, Assistant Attorney General McLaren, Robert W. Ginnane, and Raymond M. Zimmet for the United States et al., Francis W. Mclnerny for Midwest Coast Transport, Inc., et al., and David Axelrod for Little Audrey's Transportation Co., Inc., et al., appellees.
   Per Curiam.

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


text:
    NATIONAL LABOR RELATIONS BOARD v. CLARK’S GAMBLE CORP., dba CLARK’S DISCOUNT DEPARTMENT STORE, et al.
    No. 439.
    Decided November 10, 1969

      Solicitor General Griswold, Arnold Ordman, Dominick L. Manoli, Norton J. Come, and Leonard M. Wagman for petitioner.

      Earle K. Shawe for respondent M. N. Landau Stores, Inc.
   Per Curiam.

The petition for a writ of certiorari is granted, the judgment is vacated, and the case is remanded to the United States Court of Appeals for the Sixth Circuit for further consideration in light of NLRB v. Gissel Packing Co., 395 U. S. 575.

Mr. Justice Douglas dissents.


text:
    CLINTON v. CALIFORNIA
    No. 632,
    Misc.
    Decided November 10, 1969
   Per Curiam.

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


text:
    JOLLY v. MORGAN COUNTY JUNIOR COLLEGE DISTRICT et al.
    No. 453.
    Decided November 10, 1969

      Albert W. Gebauer for appellant.

      Duke W. Dunbar, Attorney General of Colorado, and John E. Bush, Assistant Attorney General, for appellees.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed.


text:
    KRAFFT v. NEW YORK
    No. 474.
    Decided November 10, 1969

      Sidney Greenberg for appellant.
   Per Curiam.

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


text:
    MARYLAND NATIONAL INSURANCE CO. et al. v. SEVENTH JUDICIAL DISTRICT COURT OF OKLAHOMA COUNTY et al.
    No. 482.
    Decided November 10, 1969

      O. B. Martin for appellants.
   Per Curiam.

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


text:
    STEIN v. ILLINOIS et al.
    No. 502.
    Decided November 10, 1969

      Yale Stein, appellant, pro se.

      Elmer C. Kissane for appellees.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    KING v. GREENBLATT et al.
    No. 615,
    Misc.
    Decided November 10, 1969

      Robert H. Quinn, Attorney General of Massachusetts, and John Wall and Edward W. Hanley III, Assistant Attorneys General, for appellees.
   Per Curiam.

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


text:
    ZWICKER v. WISCONSIN
    No. 686,
    Misc.
    Decided November 10, 1969

      Anthony G. Amsterdam, Michael Meltsner, and Melvyn Zarr for appellant.

      Robert W. Warren, Attorney General of Wisconsin, and William A. Platz, Sverre O. Tinglum, and William F. Eich, Assistant Attorneys General, for appellee.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed.

Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted.


text:
    BOSTON & MAINE RAILROAD et al. v. UNITED STATES et al.
    No. 343.
    Decided November 10, 1969

      Carl E. Newton and M. Lauck Walton for appellants in No. 343. Lee Johnson, Attorney General of Oregon, Richard W. Sabin, Assistant Attorney General, and Clarence A. H. Meyer, Attorney General of Nebraska, for appellants in No. 480. Howard J. Trienens, Martin M. Lucente, George L. Saunders, Jr., R. Ames, W. W. Dalton, K. A. Dobbins, J. H. Durkin, N. Melvin, T. A. Miller, A. B. Russ, Jr., R. D. Sickler, E. L. Van Dellen, R. W. Yost, and S. R. Brittingham, Jr., for appellants in No. 497.

      Solicitor General Griswold, Assistant Attorney General McLaren, Howard E. Shapiro, Fritz R. Kahn, and Jerome Nelson for the United States et al. in all cases. Hugh B. Cox and William H. Allen for railroad appellees in all cases.

      Together with No. 480, Arizona Corporation Commission et al. v. United States et al., and No. 497, Union Pacific Railroad Co. et al. v. United States et al., on appeal from the United States District Court for the District of Nebraska.

   Per Curiam.

The motions to affirm are granted and the judgments are affirmed.


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

text:
    DeBACKER v. BRAINARD, SHERIFF
    No. 15.
    Argued October 13-14, 1969
    Decided November 12, 1969

      William G. Line, by appointment of the Court, 394 U. S. 914, argued the cause and filed briefs for appellant.

      Richard L. Kuhlman argued the cause for appellee. With him on the brief was Melvin Kent Kammerlohr, Assistant Attorney General of Nebraska.

      Alfred L. Scanlan, by special leave of Court, argued the cause and filed a brief for the National Council of Juvenile Court Judges as amicus curiae.

      Thomas C. Lynch, Attorney General, Albert W. Harris, Jr., Assistant Attorney General, and Deraid E. Gran-berg and Gloria F. DeHart, Deputy Attorneys General, filed a brief for the State of California as amicus curiae.

   Per Curiam.

After a hearing before a juvenile court judge, appellant DeBacker was found to be a “delinquent child” and ordered committed to the Boys’ Training School at Kearney, Nebraska. DeBacker did not seek direct review of his commitment, but instead sought state habeas corpus. The Nebraska District Court dismissed appellant’s petition, a divided Nebraska Supreme Court affirmed, and last Term we noted probable jurisdiction over the present appeal, 393 U. S. 1076. Because we find that resolution of the constitutional issues presented by appellant would not be appropriate in the circumstances of this case, the appeal is dismissed. See Rescue Army v. Municipal Court, 331 U. S. 549.

1. Appellant asks this Court to decide whether the Fourteenth and Sixth Amendments, in light of this Court’s decisions in Duncan v. Louisiana, 391 U. S. 145; Bloom v. Illinois, 391 U. S. 194; and In re Gault, 387 U. S. 1, require a trial by jury in a state juvenile court proceeding based on an alleged act of the juvenile which, if committed by an adult, would, under the Duncan and Bloom cases, require a jury trial if requested. In DeStefano v. Woods, 392 U. S. 631, we held that Duncan and Bloom “should receive only prospective application” and stated that we would “not reverse state convictions for failure to grant jury trial where trials began prior to May 20, 1968, the date of this Court’s decisions in Duncan v. Louisiana and Bloom v. Illinois.” 392 U. S., at 633, 635. Because appellant’s juvenile court hearing was held on March 28, 1968 — prior to the date of the decisions in Duncan and Bloom — appellant would have had no constitutional right to a trial by jury if he had been tried as an adult in a criminal proceeding. It thus seems manifest that this case is not. an appropriate one for considering whether the Nebraska statute which provides that juvenile hearings be “without a jury,” Neb. Rev. Stat. § 43-206.03 (2), is constitutionally invalid in light of Duncan and Bloom

2. Appellant next asks this Court to decide whether the preponderance-of-the-evidence standard for burden of proof in juvenile court proceedings, required by Neb. Rev. Stat. § 43-206.03 (3), satisfies the Due Process Clause of the Fourteenth Amendment. However, at the appellant’s juvenile court hearing, his counsel neither objected to the preponderance-of-the-evidence standard, nor asked the judge to make a ruling based on proof beyond a reasonable doubt. In explaining why he did not seek a direct appeal from the juvenile court’s determination that appellant had committed the act upon which rested the delinquent child finding, appellant’s counsel stated at oral argument before this Court:

“[I]t has been pointed out that I did not attack the sufficiency of the evidence.
“Of course, the reason for that is obvious. The evidence is more than sufficient to sustain a conviction of what he did. An appeal on the sufficiency of the evidence would have been close to frivolous.” (Tr. 41-^2.)

Later in oral argument counsel acknowledged that “[n]o matter what the standard was . . . [o]ur evidence just isn’t insufficient.” (Tr. 47.) And when specifically asked whether “[t]he evidence was sufficient even under a reasonable doubt standard,” counsel responded: “Even under a reasonable doubt standard . . . .” (Tr. 47.)

Given this commendably forthright explanation by appellant’s counsel, this case is not an appropriate vehicle for consideration of the standard of proof in juvenile proceedings.

3. Appellant finally asks us to decide whether due process is denied because, as it is claimed, the Nebraska prosecutor had unreviewable discretion whether he would proceed against appellant in juvenile court rather than in ordinary criminal proceedings. The record shows (1) that appellant did not make this contention before the juvenile court judge; (2) that appellant raised the issue in his habeas corpus petition but that it was not passed on by the Nebraska District Court; (3) that appellant did not press the District Court’s failure to consider this issue in his appeal to the Nebraska Supreme Court, and made only passing reference to the issue in his brief to that court; and (4) that the opinions of the Nebraska Supreme Court did not pass on the issue, or even refer to the contention. Given the barrenness of the record on this issue, in the exercise of our discretion, we decline to pass on it. So far as we have been made aware, this issue does not draw into question the validity of any Nebraska statute. Therefore, it could not, standing alone, be subject to review in this Court by way of an appeal. See 28 U. S. C. § 1257 (2). “[IJnsofar as notation of probable jurisdiction may be regarded as a grant of the certiorari writ” as to this issue, we dismiss such writ as improvidently granted. Mishkin v. New York, 383 U. S. 502, 513.

For the foregoing reasons this appeal is

Dismissed.

Mr. Justice Black,

dissenting.

For the reasons set forth herein and in the dissenting opinion of my Brother Douglas, I dissent and would reverse the judgment below.

In February 1968 appellant, who was then 17 years old, was charged under the laws of Nebraska with being a “delinquent child” because he had a forged bank check which he intended to use for his own purposes. At the hearing on this charge he asked for a jury trial, arguing that this was a right guaranteed him by the Sixth Amendment to the Constitution and that a statute prohibiting juries in “delinquency” proceedings was therefore unconstitutional.

This Court in In re Gault, 387 U. S. 1 (1967), held that juveniles charged with being “delinquents” as a result of committing a criminal act were entitled to certain constitutional safeguards — namely, notice of the issues involved, benefit of counsel, protection against compulsory self-incrimination, and confrontation of the witnesses against them. I can see no basis whatsoever in the language of the Constitution for allowing persons like appellant the benefit of those rights and yet denying them a jury trial, a right which is surely one of the fundamental aspects of criminal justice in the English-speaking world.

The Court here decides that it would not be “appropriate” to decide this issue in light of DeStefano v. Woods, 392 U. S. 631 (1968). That case held that the Sixth Amendment right to a jury trial- — made applicable to the States in Duncan v. Louisiana, 391 U. S. 145 (1968) — did not apply in state proceedings held prior to May 20, 1968. Mr. Justice Douglas and I dissented in that case as we have in every case holding that constitutional decisions would take effect only from the day they were announced. I think this doctrine of prospective-only application is nothing less than judicial amendment of the Constitution, since it results in the Constitution’s meaning one thing the day prior to a particular decision and something entirely different the next day even though the language remains the same. Under our system of government such amendments cannot constitutionally be made by judges but only by the action of Congress and the people. Depriving defendants of jury trials prior to Duncan violated the Constitution just as much as would similar deprivations after that decision, yet this Court treats these equal deprivations with clearly unequal justice. I cannot agree to such refusals to apply what appear to me to be the clear commands of the Constitution.

Mr. Justice Douglas,

dissenting.

In DeStefano v. Woods, 392 U. S. 631, 635, I stated my view that the decisions in Duncan v. Louisiana, 391 U. S. 145, and Bloom v. Illinois, 391 U. S. 194, which guaranteed to adults in serious criminal cases and con-tempts the right to a trial by jury, should be given retroactive effect. In light of this view, I am unable to join the Court’s per curiam opinion in this case, holding that because appellant’s juvenile court hearing was held prior to the date of the decisions in Duncan and Bloom the Court is precluded from deciding appellant’s right to a jury trial.

I would reach the merits and hold that the Sixth and Fourteenth Amendments require a jury trial as a matter of right where the delinquency charged is an offense that, if the person were an adult, would be a crime triable by jury. Such is this case, for behind the fagade of delinquency is the crime of forgery.

As originally conceived, the juvenile court was to be a clinic, not a court; the judge and all of the attendants were visualized as white-coated experts there to supervise, enlighten, and cure — not to punish.

These white-coated people were surrogates, so to speak, of the natural parent. As stated in one of the leading cases:

“To save a child from becoming a criminal, or from continuing in a career of crime, to end in maturer years in public punishment and disgrace, the legislature surely may provide for the salvation of such a child, if its parents or guardian be unable or unwilling to do so, by bringing it into one of the courts of the state without any process at all, for the purpose of subjecting it to the state’s guardianship and protection. The natural parent needs no process to temporarily deprive his child of its liberty by confining it in his own home, to save it and to shield it from the consequences of persistence in a career of waywardness, nor is the state, when compelled, as parens patriae, to take the place of the father for the same purpose, required to adopt any process as a means of placing its hands upon the child to lead it into one of its courts. When the child gets there and the court, with the power to save it, determines on its salvation, and not its punishment, it is immaterial how it got there. The act simply provides how children who ought to be saved may reach the court to be saved.” Commonwealth v. Fisher, 213 Pa. 48, 53, 62 A. 198, 200 (1905).

This new agency — which stood in the shoes of the parent or guardian — was to draw on all the medical, psychological, and psychiatric knowledge of the day and transform the delinquent. These experts motivated by love were to transform troubled children into normal ones, saving them from criminal careers.

Many things happened that prevented this dream from becoming a widespread reality. First, municipal budgets were not equal to the task of enticing experts to enter this field in large numbers. Second, such experts as we had, notably the psychiatrists and analysts, were drawn away by the handsome fees they could receive for rehabilitating the rich. Third, the love and tenderness alone, possessed by the white-coated judge and attendants, were not sufficient to untangle the web of subconscious influences that possessed the troubled youngster. Fourth, correctional institutions designed to care for these delinquents often became miniature prisons with many of the same vicious aspects as the adult models. Fifth, the secrecy of the juvenile proceedings led to some overreaching and arbitrary actions.

As Mr. Justice Fortas stated in Kent v. United States, 383 U. S. 541, 556: “There is evidence, in fact, that there may be grounds for concern that the child receives the worst of both worlds: that he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.”

In Kent, the Court held that a valid waiver of the “exclusive” jurisdiction of the Juvenile Court of the District of Columbia required “a hearing, including access by . . . counsel to the social records and probation or similar reports which presumably are considered by the court, and ... a statement of reasons for the Juvenile Court’s decision.” Id., at 557. Although the opinion in that case emphasized that “the basic requirements of due process and fairness” be satisfied in such proceedings, id., at 553, the decision itself turned on the language of a federal statute.

The first expansive treatment of the constitutional requirements of due process in juvenile court proceedings was undertaken in In re Gault, 387 U. S. 1. That case involved a 15-year-old boy who had been committed by an Arizona juvenile court to the State Industrial School “for the period of his minority, unless sooner discharged by due process of law” for allegedly making lewd telephone calls. The Court in Gault abandoned the view that due process was a concept alien to the philosophy and work of the juvenile courts. Mr. Justice Fortas, speaking for the Court, stated: “Under our Constitution, the condition of being a boy does not justify a kangaroo court.” Id., at 28. The Court held that a juvenile is entitled to adequate and timely notice of the charges against him, the right to counsel, the right to confront and cross-examine witnesses, and the privilege against self-incrimination.

Since the decision in Gault, lower courts have divided on the question whether there is a right to jury trial in juvenile proceedings. Those courts which have granted the right felt that it was implicit in Gault. Nieves v. United States, 280 F. Supp. 994 (D. C. S. D. N. Y. 1968); Peyton v. Nord, 78 N. M. 717, 437 P. 2d 716 (1968) ; In re Rindell, 2 BNA Cr. L. 3121 (Providence, R. I., Fam. Ct., Jan. 1968). Those who have denied the right have reasoned either that jury trial is not a fundamental right applicable to the States or that it is not consistent with the concept of a juvenile court. People v. Anonymous, 56 Misc. 2d 725, 289 N. Y. S. 2d 782 (Sup. Ct. 1968); Commonwealth v. Johnson, 211 Pa. Super. 62, 234 A. 2d 9 (1967). Duncan and Bloom have negated the former reason. Whether a jury trial is in conflict with the juvenile court’s underlying philosophy is irrelevant, for the Constitution is the Supreme Law of the land.

Given the fundamental nature of the right to jury trial as expressed in Duncan and Bloom, there is, as I see it, no constitutionally sufficient reason to deprive the juvenile of this right. The balancing of the rehabilitative purpose of the juvenile proceeding with the due process requirement of a jury trial is a matter for a future Constitutional Convention.

The idea of a juvenile court certainly was not the development of a juvenile criminal court. It was to have a healthy specialized clinic, not to conduct criminal trials in evasion of the Constitution and Bill of Rights. Where there is a criminal trial charging a criminal offense, whether in conventional terms or in the language of delinquency, all of the procedural requirements of the Constitution and Bill of Rights come into play.

I would reverse this judgment.

       “Delinquent child shall mean any child under the age of eighteen years who has violated any law of the state or any city or village ordinance.” Neb. Rev. Stat. §43-201 (4). Appellant was charged with having a forged check in his possession with the intent to utter it as genuine, an act which for an adult would be forgery under Neb. Rev. Stat. §28-601 (2).

       Appellant was 17 when committed, and it appears that under Nebraska law he could be kept in the training school until his 21st birthday.

       Four of the seven justices of the Nebraska Supreme Court thought the Nebraska statutory provisions which require that juvenile hearings be without a jury, Neb. Rev. Stat. §43-206.03 (2), and be based on the preponderance of the evidence, Neb. Rev. Stat. §43-206.03 (3), were unconstitutional. The Nebraska Constitution provides, however, that: “No legislative act shall be held unconstitutional except by the concurrence of five judges.” Neb. Const., Art. V, §2.

       Although a comment made by appellant’s counsel at oral argument before this Court (in response to a question) suggests reliance also on the Equal Protection Clause for the claim that a jury trial was constitutionally required (Tr. 5), an examination of the record clearly reveals that this was not any part of the basis on which probable jurisdiction was noted here. Appellant made no equal protection claim before the juvenile court, in his petition for habeas corpus to the state courts, or in his jurisdictional statement or brief in this Court. The Sixth Amendment as reflected in the Fourteenth was the exclusive basis for appellant’s claim that he had a right to a jury trial. (See “Questions Presented” in Jurisdictional Statement 3-4, and Appellant’s Brief 2.) Nor has any of the Nebraska courts below passed on any equal protection claim.

       This Court has recently noted probable jurisdiction to consider this issue in In re Winship (No. 85, Misc.), probable jurisdiction noted, post, p. 885.

       In his petition for state habeas corpus, appellant did not allege as to this issue that any Nebraska statutory provision was invalid. Instead he claimed: “Petitioner is deprived of his liberty under the Fourteenth Amendment of the Constitution of the United States when his right to a jury trial and the protective procedures of the criminal code are left to depend on the uncontrolled discretion of the prosecutor as to whether petitioner should be proceeded against in juvenile court or should be informed against in District Court under the provisions of the code of criminal procedure.” If it can be fairly said that the prosecutor’s discretion under Nebraska law is “uncontrolled,” or not subject to review, this is not because of any explicit statutory provision making it such, cf. Neb. Rev. Stat. § 43-205.04, but because of language in Nebraska case law. See State v. McCoy, 145 Neb. 750, 18 N. W. 2d 101 (1945); Fugate v. Bonin, 167 Neb. 70, 75, 91 N. W. 2d 240, 243-244 (1958).

       Neb. Rev. Stat. §43-201 (4) provides that: “Delinquent child shall mean any child under the age of eighteen years who has violated any law of the state or any city or village ordinance.”

       The State charged that appellant “unlawfully, feloniously and knowingly [had] in his possession and custody a certain false, forged and counterfeited bank check . . . with the intent ... to utter and publish said false, forged and counterfeited bank check as true and genuine, knowing the same to be a false, forged and counterfeited bank check, and with the intent then and there and thereby to prejudice, damage and defraud . . . , well knowing the same to be falsely made, forged and counterfeited, contrary to the form of the Statutes in such cases made and provided, and against the peace and dignity of the State of Nebraska.” App. 1-2. It is undisputed that such acts constitute the crime of forgery under state law. Neb. Rev. Stat. §28-601 (2).

       Neb. Rev. Stat. § 43-206.03 (2) provides that juvenile hearings “shall be conducted by the judge without a jury in an informal manner . . . .”

         Linkletter v. Walker, 381 U. S. 618, 640 (1965) (dissenting opinion); Johnson v. New Jersey, 384 U. S. 719, 736 (1966) (dissenting opinion); Stovall v. Denno, 388 U. S. 293, 302, 303 (1967) (dissenting opinions); DeStefano v. Woods, 392 U. S. 631, 635 (1968) (dissenting opinion); Holliday v. United States, 394 U. S. 831, 835 (1969) (dissenting opinion); see also Desist v. United States, 394 U. S. 244, 254 (1969) (concurring in judgment).

      This has been my position with respect to all comparable constitutional decisions. See, e. g., Desist v. United States, 394 U. S. 244, 255-256 (dissenting opinion); DeStefano v. Woods, 392 U. S. 631, 635 (dissenting opinion); and cases cited therein.


text:
    LAWRENCE et al. v. CITY OF CHICAGO
    No. 509.
    Decided November 17, 1969

      John M. Bowlus for appellants.

      Raymond F. Simon, Marvin E. Aspen, and John J. George for appellee.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.

Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted.


text:
    O’LEARY et al. v. KENTUCKY
    No. 526.
    Decided November 17, 1969

      Robert Allen Sedler for appellants.

      John B. Breckinridge, Attorney General of Kentucky, and George F. Rabe, Assistant Attorney General, for appellee.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.

Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted.


text:
    BROCKINGTON v. RHODES, GOVERNOR OF OHIO, et al.
    No. 31.
    Argued October 22, 1969
    Decided November 24, 1969

      Benjamin B. Sheerer argued the cause for appellant. With him on the briefs was Ralph Rudd.

      Robert D. Macklin, Assistant Attorney General of Ohio, argued the cause for appellees. On the brief were Paul W. Brown, Attorney General, Charles S. Lopeman, First Assistant Attorney General, and Julius J. Nemeth, Assistant Attorney General. John T. Corrigan and John L. Dowling filed a brief for appellees Cipollone et al.
   Per Curiam.

The appellant sought to run in the November 1968 election as an independent candidate for the United States House of Representatives from the Twenty-first Congressional District of Ohio. His nominating petition bore the signatures of 899 voters in the congressional district, a little over 1% of those in the district who had voted in the gubernatorial contest at the last election. The Board of Elections ruled that the appellant’s petition was insufficient to put his name on the November ballot, because it did not contain the signatures of 7% of the qualified voters, as Ohio law then required. The appellant petitioned the Court of Common Pleas for a writ of mandamus, challenging the 7% requirement as “unreasonably high and excessive, . . . disproportionate when compared to the 100 signatures required for party candidates,. . . arbitrary and capricious, . . . [and] an invidious discrimination without any relationship to constitutionally justified ends . . . .” He urged as the proper standard for determining the sufficiency of his nominating petition the 1% requirement that had prevailed for over 60 years until the enactment of the 7% rule in 1952. He prayed for an immediate order restraining the Board of Elections from printing the election ballots; also for a writ of mandamus commanding the Board “to certify the sufficiency of relator’s nominating petition” and directing the appellees “to do all things necessary to place relator’s name upon the ballot as an independent candidate for United States House of Representatives from the Ohio Twenty-First Congressional District in the November 5, 1968, general election . . . .” His suit did not purport to be a class action, and he sought no declaratory relief.

On August 22, 1968, the Court of Common Pleas denied the writ of mandamus. On October 1 the Court of Appeals for the Eighth Judicial District affirmed that judgment, and on October 23 the Supreme Court of Ohio dismissed the appeal for want of a substantial constitutional question. The appellant then appealed to this Court pursuant to 28 U. S. C. § 1257, and we noted probable jurisdiction, 393 U. S. 1078. While the appeal was pending here, Ohio amended the controlling statute, effective October 30, 1969, reducing the signature requirement from 7% to 4%.

We do not think the recent statutory amendment has rendered this case moot. For the appellant has consistently urged the unconstitutionality of any percentage requirement in excess of the 1 % that Ohio imposed prior to 1952, and he obtained the signatures of only about 1% of the voters in his district. He thus could not have won a place on the ballot even under the statute as currently written. Cf. Hall v. Beals, post, p. 45.

Rather, in view of the limited nature of the relief sought, we think the case is moot because the congressional election is over. The appellant did not allege that he intended to run for office in any future election. He did not attempt to maintain a class action on behalf of himself and other putative independent candidates, present or future. He did not sue for himself and others similarly situated as independent voters, as he might have under Ohio law. Ohio Rev. Code Ann. § 2307.21 (1953). He did not seek a declaratory judgment, although that avenue too was open to him. Ohio Rev. Code Ann. §§2721.01-2721.15 (1953).

Instead, he sought only a writ of mandamus to compel the appellees to place his name on the ballot as a candidate for a particular office in a particular election on November 5, 1968. In Ohio mandamus is an extraordinary remedy, available to a petitioner only on a showing of clear legal right. State ex rel. Gerspacher v. Coffinberry, 157 Ohio St. 32, 104 N. E. 2d 1; State ex rel. Stanley v. Cook, 146 Ohio St. 348, 66 N. E. 2d 207. The writ does not lie to review the determination by a Board of Elections that a candidate is ineligible to assume the office he seeks or that his petition is invalid, in the absence of allegations of fraud, corruption, abuse of discretion, or a clear disregard of statutes or applicable legal principles. State ex rel. Flynn v. Board of Elections, 164 Ohio St. 193, 129 N. E. 2d 623; cf. State ex rel. Hanna v. Milburn, 170 Ohio St. 9, 11, 161 N. E. 2d 891, 893. In the instant suit the Court of Common Pleas ruled that the appellant “must not only establish that the act which he seeks to compel respondents to perform is one that they are constitutionally bound to perform by virtue of their offices, but also that he, the relator, has a clear right to have the duty enforced.” The court, without passing on the merits of the legal issues raised by the parties, found that the appellant had not established a clear legal right to the writ on the basis of all the evidence.

It is now impossible to grant the appellant the limited, extraordinary relief he sought in the Ohio courts. Accordingly, the judgment of the Supreme Court of Ohio must be vacated, without costs in this Court, and the cause remanded for such proceedings as that court may deem appropriate.

It is so ordered.

       Ohio Rev. Code Ann. § 3613.257 (Supp. 1968) provided in pertinent part:
      “The nominating petition of an independent candidate for the office of . . . district representative to congress, shall be signed by not less than seven per cent of the number of electors who voted for governor at the next preceding regular state election for the office of governor in the district.”

       Under Ohio law a candidate for the nomination of a political party to the office of United States Representative must, in order to enter the party primary, obtain from the party membership within the congressional district the signatures of either 100 voters or 5% of those who voted in the last gubernatorial election, whichever is less. Ohio Rev. Code Ann. §3513.05 (Supp. 1968).


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

text:
    HALL et ux. v. BEALS, CLERK AND RECORDER OF EL PASO COUNTY, et al.
    No. 39.
    Argued October 14, 1969
    Decided November 24, 1969

      Richard Hall argued the cause pro se and for other appellant.

      Bernard R. Baker argued the cause for appellees. With him on the brief were Carroll E. Multz and Robert L. Russel.

    Briefs of amici curiae urging reversal were filed by Solicitor General Griswold, Assistant Attorney General Leonard, Louis F. Claiborne, and Francis X. Beytagh, Jr.,
      for the United States; by William F. Reynard, Melvin L. Wulf, and Eleanor Holmes Norton for the American Civil Liberties Union et al.; by Joseph L. Rauh, Jr., John Silard, and Elliott C. Lichtman for the Bipartisan Committee on Absentee Voting; and by Harvey M. Burg.

      Louis J. Lefkowits, Attorney General, Samuel A. Hirshowitz, First Assistant Attorney General, and Brenda Soloff, Assistant Attorney General, filed a brief for the State of New York as amicus curiae urging affirmance.
   Per Curiam.

The appellants moved from California to Colorado in June 1968. They sought to register to vote in the ensuing November presidential election, but were refused permission because they would not on election day have satisfied the six-month residency requirement that Colorado then imposed for eligibility to vote in such an election. The appellants then commenced the present class action against the appellees, electoral officials of El Paso County, Colorado. Their complaint challenged the six-month residency requirement as a violation of the Equal Protection, Due Process, and Privilege and Immunities Clauses of the Constitution. For relief they sought (1) a writ of mandamus compelling the appellees to register them for the upcoming presidential election; (2) an injunction restraining the enforcement and operation of the Colorado residency laws insofar as they applied to the presidential election; and (3) a direction that the appellees register the appellants and allow them to vote “on a conditional basis, so that should either party choose to appeal to the Supreme Court of the United States and such appeal should run past the time of the National Election on November 5, 1968, . . . the relief sought by [the appellants will] not become moot.”

On October 30 the three-judge District Court entered judgment for the appellees and dismissed the complaint, holding that the six-month requirement was not unconstitutional. Hall v. Beals, 292 F. Supp. 610 (D. C. Colo.). As a result the appellants did not vote in the 1968 presidential election. They took a direct appeal to this Court pursuant to 28 U. S. C. § 1253, and we noted probable jurisdiction, 394 U. S. 1011. Thereafter the Colorado Legislature reduced the residency requirement for a presidential election from six months to two months.

The 1968 election is history, and it is now impossible to grant the appellants the relief they sought in the District Court. Further, the appellants have now satisfied the six-month residency requirement of which they complained. But apart from these considerations, the recent amendatory action of the Colorado Legislature has surely operated to render this case moot. We review the judgment below in light of the Colorado statute as it now stands, not as it once did. Thorpe v. Housing Authority, 393 U. S. 268, 281-282; United States v. Alabama, 362 U. S. 602, 604; Hines v. Davidowitz, 312 U. S. 52, 60; Carpenter v. Wabash R. Co., 309 U. S. 23, 26-27; United States v. Schooner Peggy, 1 Cranch 103, 110. And under the statute as currently written, the appellants could have voted in the 1968 presidential election. The case has therefore lost its character as a present, live controversy of the kind that must exist if we are to avoid advisory opinions on abstract propositions of law. Golden v. Zwickler, 394 U. S. 103, 110; Baker v. Carr, 369 U. S. 186, 204; Mills v. Green, 159 U. S. 651, 653.

The appellants object now to the two-month residency requirement as vigorously as they did to the six-month rule in effect when they brought suit. They say that such statutes, in Colorado and elsewhere, continue to have an adverse effect upon millions of voters throughout the Nation. But the appellants' opposition to residency requirements in general cannot alter the fact that so far as they are concerned nothing in the Colorado legislative scheme as now written adversely affects either their present interests, or their interests at the time this litigation was commenced. Nor does the result differ because the appellants denominated their suit a class action on behalf of disenfranchised voters. The appellants “cannot represent a class of [which] they are not a part,” Bailey v. Patterson, 369 U. S. 31, 32-33 — that is, the class of voters disqualified in Colorado by virtue of the new two-month requirement, a class of which the appellants have never been members.

Nothing in Moore v. Ogilvie, 394 U. S. 814, is to the contrary. There we invalidated an Illinois statute requiring that independent candidates for presidential elector obtain signatures on their nominating petitions from voters distributed through the State. We noted that even though the 1968 election was over, “the burden . . . placed on the nomination of candidates for statewide offices remains and controls future elections, as long as Illinois maintains her present system as she has done since 1935.” 394 U. S., at 816. The problem before us was “ ‘capable of repetition, yet evading review/ ” not only because the same restriction on Moore’s candidacy that had adversely affected him in 1968 could do so again in 1972, but because Illinois, far from having altered its statutory scheme for the future benefit of those situated similarly to Moore, had adhered for over 30 years to the same electoral policy with no indication of change.

Here, by contrast, the appellants will face disenfranchisement in Colorado in 1972 only in the unlikely event that they first move out of the State and then re-establish residence there within two months of the presidential election in that year. Or they may take up residence in some other State, and in 1972 face disqualification under that State’s law. But such speculative contingencies afford no basis for our passing on the substantive issues the appellants would have us decide with respect to the now-amended law of Colorado. Golden v. Zwickler, supra.

The judgment of the District Court is vacated and the case is remanded with directions to dismiss the cause as moot.

It is so ordered.

Mr. Justice Brennan,

dissenting.

I dissent from the direction to dismiss this case as moot. Moore v. Ogilvie, 394 U. S. 814 (1969), involved a challenge to the constitutionality of a statute which had been invoked to deny the appellants a place on the 1968 ballot. We were not persuaded in that case by the argument that the appeal should be dismissed since the 1968 election had been held and there was no possibility of granting any relief to appellants. Even though appellants did not allege they would seek a place on the ballot at future elections, we held that the constitutional question was one “capable of repetition, yet evading review,” Southern Pacific Terminal Co. v. ICC, 219 U. S. 498, 515 (1911), and, therefore, that mootness would not prevent our decision of its merits. In my view the present case is an even stronger one for application of that principle. At stake here is the fundamental right to vote — the right “preservative of other basic civil and political rights,” Reynolds v. Sims, 377 U. S. 533, 562 (1964); see also Harper v. Virginia Board of Elections, 383 U. S. 663, 670 (1966), and the constitutional challenge of the amended Colorado statute is peculiarly evasive of review. This is because ordinarily a person’s standing to make that challenge would not mature unless he had become a Colorado resident within two months prior to a presidential election. Barring resort to extraordinary expedients, that interval is obviously too short for the exhaustion of state administrative remedies and the completion of a lawsuit through filing of the complaint in a federal district court, convening of a three-judge court, trial, and review by this Court. True, today’s virtual foreclosure of any opportunity for definitive judicial review may in some measure be prevented by resort to waiver of the requirement of exhaustion of administrative remedies, preferred calendar position, or even relaxation of the rules of ripeness to permit a person not yet a resident to challenge the statute on a showing of reasonable certainty that he would be moving to the State within the two-month period. But the difficulties which attend these expedients only buttress my conclusion that if mootness did not bar decision of the constitutional question in Moore v. Ogilvie, there is even more reason to hold that mootness does not bar decision of the constitutional question presented here.

Reaching the merits, I would reverse for the reasons stated by Mr. Justice Marshall in his dissenting opinion, which I join.

Mr. Justice Marshall,

whom Mr. Justice Brennan joins, dissenting.

I agree with my Brother Brennan that this case is not moot. It involves one of those problems “ 'capable of repetition, yet evading review,’ ” that call for relaxation of traditional concepts of mootness so that appellate review of important constitutional decisions not be permanently frustrated. Moore v. Ogilvie, 394 U. S. 814, 816 (1969).

Indeed, one of the unfortunate consequences of a rigid view of mootness in cases such as this is that the state and lower federal courts may well be left as the courts of last resort for challenge^ of relatively short state residency requirements. Those courts may, as the District Court apparently did in this case, consider themselves bound by this Court’s summary per curiam affirmance in Drueding v. Devlin, 380 U. S. 125 (1965), aff’g 234 F. Supp. 721 (D. C. Md. 1964), which upheld a one-year residency requirement for voting in a presidential election. It seems to me clear that Drueding is not good law today. The difficulties of achieving review in this Court in cases of this sort, combined with this misleading precedent, lead me to indicate briefly my view of the merits of the case before us.

In Drueding, the District Court tested the residency requirement there challenged by the equal-protection standard applied to ordinary state regulations: that is, restrictions need bear only some rational relationship to a legitimate end. 234 F. Supp., at 724-725, citing McGowan v. Maryland, 366 U. S. 420, 425 (1961). But if it was not clear in 1965 it is clear now that once a State has determined that a decision is to be made by popular vote, it may exclude persons from the franchise only upon a showing of a compelling interest, and even then only when the exclusion is the least restrictive method of achieving the desired purpose. Harper v. Virginia Board of Elections, 383 U. S. 663, 667 (1966); Kramer v. Union School District, 395 U. S. 621, 626-628 (1969). Close scrutiny is thus demanded of Colorado’s requirement that in order to vote for President and Vice President, one must not only be a resident of that State, but one must have been a resident for a certain time before the election — six months when this suit was brought; now, two months.

In support of this requirement, it is urged that the electoral college system as embodied in the Constitution contemplates the election of the President and Vice President, not by the Nation as such, but rather by the individual States, each acting as a community. Hence, the argument goes, each State may legislate to ensure that those voting for its presidential electors are truly members of the state community.

The argument is surely correct as far as it goes, and this Court has often reaffirmed the power of the States to require their voters to be bona fide residents. Carrington v. Rash, 380 U. S. 89, 93-94 (1965); Kramer v. Union School District, supra, at 625. But this does not justify or explain the exclusion from the franchise of persons, not because their bona fide residency is questioned, but because they are recent rather than longtime residents.

Nor is it a justification to say that the State has certain parochial interests at stake in the election of a President, and that it may require of its voters a period of residency sufficiently lengthy to impress upon them the local viewpoint. This is precisely the sort of argument that this Court, in Carrington v. Rash, supra, found insufficient to justify Texas’ exclusion from voting in state elections of servicemen who had acquired Texas residency after they had entered the service. The State argued that military men newly moved to Texas might not have local interests sufficiently at heart. This Court replied:

“But if they are in fact residents, with the intention of making Texas their home indefinitely, they, as all other qualified residents, have a right to an equal opportunity for political representation. . . . ‘Fencing out’ from the franchise a sector of the population because of the way they may vote is constitutionally impermissible.” 380 U. S., at 94.

Similarly here, the fact that newly arrived Coloradans may have a more national outlook than longtime residents, or even may retain a viewpoint characteristic of the region from which they have come, is a constitutionally impermissible reason for depriving them of their chance to influence the electoral vote of their new home State.

Nor does it suffice to argue that a durational residency requirement ensures that voters have had the time to gain knowledge of local issues, as distinguished from indoctrination in local attitudes. Even if it can be assumed that new residents know less about local issues than old residents, issues of this sort play so small a part in the election of the President and Vice President today that this can hardly be considered a compelling interest sufficient to justify entirely depriving millions of Americans of any opportunity to vote for their most important leaders. Cf. Kramer v. Union School District, supra, at 633.

The appellees argue that the State’s durational residency requirement is necessary to ensure the purity of its elections. The impurities feared (“dual voting” and “colonization”) all involve the same evil — voting by nonresidents, either singly or in blocks. But it is difficult to see how the durational residency requirement in any way protects against nonresident voting. The qualifications of the would-be voter in Colorado are determined when he registers to vote, which he may do until 20 days before the election. Colo. Rev. Stat. Ann. §49-4-2 (1) (Supp. 1965). At that time, he establishes his qualifications, including durational residence, by oath. Colo. Rev. Stat. Ann. § 49-4-17 (Supp. 1965.) The nonresident, seeking to vote, can as easily falsely swear that he has been a resident for a certain time, as he could falsely swear that he is presently a resident. The requirement of the additional element to be sworn — the duration of residency — adds no discernible protection against “dual voting” or “colonization” by voters willing to lie. Insofar as appears from the Colorado election laws, and from the record in this case, the State makes no independent attempt to go behind the voter’s oath to determine his qualifications. See Colo. Rev. Stat. Ann. § 49-13 (Supp. 1965).

Moreover, even if an enforcement effort were made to prevent nonresident voting, and the exclusion of those taking up residency within two months of the election were used as a method of eliminating cases on the borderline between new residents and mere visitors, such an approach would be constitutionally overbroad. In Carrington v. Rash, supra, the State similarly argued that it was in many instances difficult to tell whether persons moving to Texas while they were in the service had the genuine intent to remain that establishes residency. Thus, the argument went, the administrative convenience of avoiding difficult factual determinations justified a blanket exclusion of all those in the doubtful category. The Court rejected such a “conclusive presumption” approach, noting that “States may not casually deprive a class of individuals of the vote because of some remote administrative benefit to the State.” 380 U. S., at 96. Cf. Harman v. Forssenius, 380 U. S. 528, 542-543 (1965).

Similarly here, a conclusive presumption that a recently established resident is not a resident at all for voting purposes is simply an overbroad burden upon the right to vote. In most cases, it is no more difficult to determine whether one recently arrived in the community has sufficient intent to remain to qualify as a resident than it is to make a similar determination for an older inhabitant. That there are borderline cases among the new arrivals is not a constitutionally sufficient reason for denying the vote to those who have settled in good faith.

Finally, appellees argue that the logistics of preparing for an election require that there be some time between the close of registration and the election itself. This period serves as a kind of residency requirement, in that persons establishing residency after the voting lists are closed are barred from voting. Yet this requirement is justified by compelling administrative needs. And, it is argued, once some period of this sort is conceded to be required, it is arbitrary for the courts to determine as a matter of constitutional law how long it may be.

But this argument is unconvincing here. Colorado has apparently judged that administrative needs require 20 days between the close of registration and election day. Colo. Rev. Stat. Ann. § 49-A-2 (2) (Supp. 1965). Appellants have not challenged this statute. What they have challenged is the separate and additional requirement that voters, all of whom register before the 20-day cutoff date, also must have been residents of the State at least six months — by recent amendment two months — before the election. Colo. Rev. Stat. Ann. §49-24-1 (1963). For the argument from logistical need to save the dura-tional residency requirement, the State would have to show some additional administrative need for this further burden on the right to vote. No such showing has been made. In my view the Colorado durational residency requirement for voters for President and Vice President violates the Equal Protection Clause, and appellants are entitled to reversal of the District Court judgment that upheld that requirement.

       Colo. Rev. Stat. Ann. §49-24r-l (1963) provided:

        “Eligibility of new resident to vote. — Any citizen of the United States who shall have attained the age of twenty-one years, shall have resided in this state not less than six months next preceding the election at which he offers to vote, in the county or city and county not less than ninety days, and in the precinct not less than fifteen days, and shall have been duly registered as required by the provisions of this article, shall have the right to vote as a new resident for presidential and vice-presidential electors.”
      The appellant Richard Hall went to the office of the appellee Beals on or about August 1, 1968, to request that his wife and he be allowed to vote in the presidential election. Upon denial of his application, he wrote to the Colorado Secretary of State to ask that his wife and he be allowed to vote despite the six-month residency requirement. On September 6 the State Election Office informed the appellants they would not be permitted to vote.
      Apart from the special provision relating to the eligibility of new residents to vote in a presidential election, Colorado requires that persons desiring to vote in general, primary, and special elections must have resided in the State for one year. Colo. Rev. Stat. Ann. §49-3-1 (1) (c) (1963).

       The request for relief continued:
      “Should Plaintiffs win an eventual appeal, the Defendant Election Officials shall be directed to count Plaintiffs’ votes as normally cast and valid ballots; should Plaintiffs lose on final appeal to the Supreme Court of the United States, Defendant Election Officials shall destroy Plaintiffs’ ballots as if they had never been cast. This conditional registration is the only way Plaintiffs’ sought-for relief can be preserved should an appeal by either party run past the date of the National Election in question.”

       The opinion of the District Court was issued on November 29, 1968.

       The proceedings would probably require even more time if the plaintiff sued in state court, for review in this Court would come only after one or more levels of state appellate review.

        Pope v. Williams, 193 U. S. 621 (1904), upheld a one-year residency requirement for voting in state elections. The Court specifically reserved the question of durational residency requirements as applied to voting in presidential elections. Id., at 633. In any case, Pope was decided long before application of the “compelling interest” test to restrictions on the franchise.

       For instance, the appellants in this case, before applying for their ballots, had bought a home in Colorado Springs, registered their car with the Colorado Department of Motor Vehicles, acquired Colorado drivers’ licenses, and registered their eldest child in a private nursery school; further, Mr. Hall had taken permanent employment with a law firm in Colorado Springs.


author: Mr. Justice Douglas

text:
    ANDERSON’S-BLACK ROCK, INC. v. PAVEMENT SALVAGE CO., INC.
    No. 45.
    Argued November 10, 1969
    Decided December 8, 1969

      Alan W. Borst argued the cause for petitioner. With him on the brief was Nathaniel L. Leek.

      Walter J. Blenko, Jr., argued the cause and filed a brief for respondent.
   Mr. Justice Douglas

delivered the opinion of the Court.

Respondent brought this action against petitioner for infringement of United States Patent No. 3,055,280 covering “Means for Treating Bituminous Pavement.” The patent was assigned to respondent by one Neville.

Bituminous concrete — commonly called asphalt or “blacktop” — is often laid in strips. The first strip laid usually has cooled by the time the adjoining strip is to be laid, creating what is known as a cold joint. Because bituminous concrete is pliable and capable of being shaped only at temperatures of 250° to 290° F., the cold joint results in a poor bonding between the strips. Water and dirt enter between the strips, causing deterioration of the pavement.

Respondent’s patent sought to solve the problem of the cold joint by combining on one chassis (1) a radiant-heat burner for heating the exposed edge of the cold strip of pavement; (2) a spreader for placing bituminous material against that strip; and (3) a tamper and screed, for shaping the newly placed material to the desired contour and surface.

The standard paving machine in use prior to respondent’s claimed invention combined on one chassis the equipment for spreading and shaping the asphalt, and it is unquestioned that this combination alone does not result in a patentable invention. Petitioner’s alleged infringement resulted from its placing of a radiant-heat burner on the front of a standard paving machine, thus allowing its machine to perform the same functions with the same basic elements as those described in respondent’s patent.

The use of a radiant-heat burner in working asphalt pavement dates back to a patent issued in 1905 to one Morcom, United States Patent No. 799,014. The value of such a heater lies in the fact that it softens the asphalt without burning the surface. The radiant-heat burner on respondent’s claimed invention is essentially the same as that disclosed in a patent issued in 1956 to one Schwank, United States Patent No. 2,775,294. Thus the burner, by itself, is also not patentable.

The placement of the radiant-heat burner upon the side of a standard bituminous paver is the central feature of respondent’s patent. The heater is used in this way for continuous paving along a strip to prevent a cold joint, whereas previously radiant-heat burners had been used merely for patching limited areas of asphalt. The operation of the heater is, however, in no way dependent on the operation of the other equipment on the paving machine. It is hung on the paver merely because that is a convenient place for it when heating the longitudinal joint of the pavement. A separate heater can also be used in conjunction with a standard paving machine to eliminate the cold joint, and in fact is so used for heating the transverse joints of the pavement.

Respondent claims that its patent involves a combination of prior art which produces the new and useful result of eliminating the cold joint. Its claim of unobviousness is based largely on the testimony of two individuals who are knowledgeable in the field of asphalt paving, expressing their doubts to the inventor Neville that radiant heat would solve the problem of cold joints. The District Court rejected respondent’s claim of infringement, finding the patent invalid. The Court of Appeals, by a divided vote, reversed. For reasons that follow, we reverse the judgment of the Court of Appeals.

Each of the elements combined in the patent was known in the prior art. It is urged that the distinctive feature of the patent was the element of a radiant-heat burner. But it seems to be conceded that the burner, by itself, was not patentable. And so we reach the question whether the combination of the old elements created a valid combination patent.

The District Court said: “All that plaintiff [respondent] has done is to construct four elements known in the prior art on one chassis.” That is relevant to commercial success, not to invention. The experts tendered by respondent testified that they had been doubtful that radiant heat would solve the problem of the cold joint. But radiant heat was old in the art. The question of invention must turn on whether the combination supplied the key requirement. We conclude that the combination was reasonably obvious to one with ordinary skill in the art.

There is uncontested evidence that the presence of the radiant-heat burner in the same machine with the other elements is not critical or essential to the functioning of the radiant-heat burner in curing the problem of the cold joint. For it appears that a radiant-heat burner operating in a tandem fashion would work as well. The combination of putting the burner together with the other elements in one machine, though perhaps a matter of great convenience, did not produce a “new or different function,” Lincoln Co. v. Stewart-Warner Corp., 303 U. S. 545, 549, within the test of validity of combination patents.

A combination of elements may result in an effect greater than the sum of the several effects taken separately. No such synergistic result is argued here. It is, however, fervently argued that the combination filled a long felt want and has enjoyed commercial success. But those matters “without invention will not make patent-ability.” A. & P. Tea Co. v. Supermarket Corp., 340 U. S. 147, 153.

The patent standard is basically constitutional, Article I, § 8, of the Constitution authorizing Congress “’[t]o promote the Progress of . . . useful Arts” by allowing inventors monopolies for limited times. We stated in Graham v. John Deere Co., 383 U. S. 1, 6, that under that power Congress may not “enlarge the patent monopoly without regard to the innovation, advancement or social benefit gained thereby. Moreover, Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available. Innovation, advancement, and things which add to the sum of useful knowledge are inherent requisites in a patent system which by constitutional command must ‘promote the Progress of . . . useful Arts.’ This is the standard expressed in the Constitution and it may not be ignored.”

In this case the question of patentability of the combination turns on the meaning of 35 U. S. C. § 103 which the Court reviewed in the Graham case, supra, at 13-17. We said:

“We believe that this legislative history, as well as other sources, shows that the revision was not intended by Congress to change the general level of patentable invention. We conclude that the section was intended merely as a codification of judicial precedents embracing the Hotchkiss condition, with congressional directions that inquiries into the obviousness of the subject matter sought to be patented are a prerequisite to patentability.” Id., at 17.

Obviousness, as an issue, is resolved as follows:

“Under § 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved.” Ibid.

We admonished that “strict observance” of those requirements is necessary. Id., at 18.

We conclude that while the combination of old elements performed a useful function, it added nothing to the nature and quality of the radiant-heat burner already patented. We conclude further that to those skilled in the art the use of the old elements in combination was not an invention by the obvious-nonobvious standard. Use of the radiant-heat burner in this important field marked a successful venture. But as noted, more than that is needed for invention.

Reversed.

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

       Mr. Francis C. Witkoski, an engineer, met the inventor, Charles Neville, between 1955 and 1960 while Witkoski was Director of Research for the Pennsylvania Department of Highways. Neville told Witkoski that he had invented a piece of equipment that would heat but not burn asphalt, and would thus eliminate cold joints. Witkoski replied that he did not believe that Neville had such a piece of equipment. Subsequently, Witkoski ordered from Neville some of the separate burner units and tested them. Thus the dialogue between Witkoski and Neville focused exclusively on the properties of the radiant-heat burner.
      Mr. Leslie B. Crowley, also an engineer, met Neville prior to 1954. Crowley was at that time the Chief of the Pavements and Railroads Section, Director of Installations, Headquarters, United States Air Force. Neville explained the advantages of using an “infra-red” heater for the maintenance and repair of asphalt pavements. Crowley testified that his interest was insufficient at that time to motivate him to take any action with regard to the device because he did not believe it would “do the job.” Thus the Crowley-Neville discussion also focused entirely on the radiant-heat burner, and not on the combination of the burner with the other elements of a bituminous paver.

       35 U. S. C. § 103 provides:

        “A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.”

        Hotchkiss v. Greenwood, 11 How. 248.

       35 U.S. C.§101 provides:
      “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.”
      Absent here is the element “new.” For as we have said, the combination patent added nothing to the inherent characteristics or function of the radiant-heat burner.