source: Caselaw Access Project

author: Mr. Justice White Mr. Justice Stewart,

license: Public Domain

text:
    CITY OF PHOENIX et al. v. KOLODZIEJSKI
    No. 1066.
    Argued March 31, 1970
    Decided June 23, 1970

      Rex E. Lee argued the cause for appellants. With him on the brief were Robert J. Backstein and Alan K. Polley.

      Fred H. Rosenfeld argued the cause for appellee. With him on the brief was Ivan Robinette.

    Briefs of amici curiae were filed by Jack P. F. Gre-million, Attorney General, Edward Donald Moseley, Harold B. Judell, and James Hugh Martin for the State of Louisiana; by Phillip H. Holm for the Parish School Board of Caddo Parish; by John F. Ward, Jr., Fred G. Benton, Jr., and Fred G. Benton, Sr., for the Louisiana School Boards Association; by Myles P. Tallmadge for Poudre School District R-l of Larimer County, Colorado; and by Richard H. Frank for Elizabeth M. Axtell et al.
   Mr. Justice White

delivered the opinion of the Court.

In Kramer v. Union Free School District, 395 U. S. 621 (1969), this Court held that a State could not restrict the vote in school district elections to owners and lessees of real property and parents of school children because the exclusion of otherwise qualified voters was not shown to be necessary to promote a compelling state interest. This ruling, by its terms applicable to elections of public officials, was extended to elections for the approval of revenue bonds to finance local improvements in Cipriano v. City of Houma, 395 U. S. 701 (1969). Our decision in Cipriano did not, however, reach the question now presented for decision: Does the Federal Constitution permit a State to restrict to real property taxpayers the vote in elections to approve the issuance of general obligation bonds?

This question arises in the following factual setting: On June 10, 1969, the City of Phoenix, Arizona, held an election to authorize the issuance of $60,450,000 in general obligation bonds as well as certain revenue bonds. Under Arizona law, property taxes were to be levied to service this indebtedness, although the city was legally privileged to use other revenues for this purpose. The general obligation bonds were to be issued to finance various municipal improvements, with the largest amounts to go for the city sewer system, parks and playgrounds, police and public safety buildings, and libraries. Pursuant to Arizona constitutional and statutory provisions, only otherwise qualified voters who were also real property taxpayers were permitted to vote on these bond issues. All of the bond issues submitted to the voters were approved by a majority of those voting.

On June 16, 1969, six days after the election in Phoenix, this Court held in Cipriano v. City of Houma, supra, that restricting the franchise to property taxpayers in elections on revenue bonds violated the Equal Protection Clause of the Fourteenth Amendment. That ruling was applied to the case before the Court in which under local law the authorization of the revenue bonds was not yet final when the challenge to the election was raised in the District Court. On August 1, 1969, ap-pellee Kolodziejski, a Phoenix resident who was otherwise qualified to vote but who owned no real property, filed her complaint in the United States District Court for the District of Arizona challenging the constitutionality of the restriction on the franchise in Arizona bond elections and attacking the validity of the June 1969 election approving the Phoenix bond issues. A District Court of three judges was convened. In the District Court, appellants conceded that, under this Court’s decisions in Cipriano and Kramer, supra, the bond election was invalid with regard to the revenue bonds that had been approved. The District Court perceived no significant difference between revenue bonds and general obligation bonds and therefore held that the exclusion of nonproperty-owning voters from the election on the general obligation bonds was unconstitutional under Cipriano and Kramer. Because the authorization of the Phoenix general obligation bonds was not final on the date of the Cipriano decision, the court held the Cipriano rule applicable and declared the June 10, 1969, bond election invalid. The appellants were enjoined from taking further action to issue the bonds approved in that election. The City of Phoenix and the members of the City Council appealed from the judgment of the District Court with respect to the general obligation bonds. We noted probable jurisdiction, 397 U. S. 903 (1970). We affirm the judgment of the District Court but do not agree that the ruling in this case should be retroactive to the date of the Cipriano decision.

I

In Cipriano v. City of Houma, supra, the denial of the franchise to nonproperty owners in elections on revenue bonds was held to be a denial of the Fourteenth Amendment rights of the nonproperty owners since they, as well as property owners, are substantially affected by the issuance of revenue bonds to finance municipal utilities. It is now argued that the rationale of Cipriano does not render unconstitutional the exclusion of non-property owners from voting in elections on general obligation bonds.

The argument proceeds on two related fronts. First, it is said that the Arizona statutes require that property taxes be levied in an amount sufficient to service the general obligation bonds, the law thus expressly placing a special burden on property owners for the benefit of the entire community. Second, and more generally, whereas revenue bonds are secured by the revenues from the operation of particular facilities and these revenues may be earned from both property owners and non-property owners, general obligation bonds are secured by the general taxing power of the issuing municipality. Since most municipalities rely to a substantial extent on property tax revenues which will be used to make debt service payments if other revenue sources prove insufficient, general obligation bonds are in effect a lien on the real property subject to taxation by the issuing municipality. Whatever revenues are actually used to service the bonds, an unavoidable potential tax burden is imposed only on those who own realty since that property cannot be moved beyond the reach of the municipality's taxing power. Hence, according to appellants, the State is justified in recognizing the unique interests of real property owners by allowing only property taxpayers to participate in elections to approve the issuance of general obligation bonds.

Concededly, the case of elections to approve general obligation bonds was not decided in Cipriano v. City of Houma, supra. But we have concluded that the principles of that case, and of Kramer v. Union Free School District, supra, dictate a like result where a State excludes nonproperty taxpayers from voting in elections for the approval of general obligation bonds. The differences between the interests of property owners and the interests of nonproperty owners are not sufficiently substantial to justify excluding the latter from the franchise. This is so for several reasons.

First, it is unquestioned that all residents of Phoenix, property owners and nonproperty owners alike, have a substantial interest in the public facilities and the services available in the city and will be substantially affected by the ultimate outcome of the bond election at issue in this case. Presumptively, when all citizens are affected in important ways by a governmental decision subject to a referendum, the Constitution does not permit weighted voting or the exclusion of otherwise qualified citizens from the franchise. Arizona nevertheless excludes nonproperty owners from participating in bond elections and vests in the majority of individual property owners voting in the election the power to approve or disapprove facilities that the municipal government has determined should be financed by issuing general obligation bonds. Placing such power in property owners alone can be justified only by some overriding interest of those owners that the State is entitled to recognize.

Second, although Arizona law ostensibly calls for the levy of real property taxes to service general obligation bonds, other revenues are legally available for this purpose. According to the parties’ stipulation in this case, it is anticipated with respect to the instant bonds, as has been true in the past, that more than half of the debt service requirements will be satisfied not from real property taxes but from revenues from other local taxes paid by nonproperty owners as ■well as those who own real property. Not only do those persons excluded from the franchise have a great interest in approving or disapproving municipal improvements, but they will also contribute, as directly as property owners, to the servicing of the bonds by the payment of taxes to be used for this purpose.

Third, the justification for restricting the franchise to the property owners would seem to be strongest in the case of a municipality which, unlike Phoenix, looks only to property tax revenues for servicing general obligation bonds. But even in such a case the justification would be insufficient. Property taxes may be paid initially by property owners, but a significant part of the ultimate burden of each year’s tax on rental property will very likely be borne by the tenant rather than the landlord since, as the parties also stipulated in this case, the landlord will treat the property tax as a business expense and normally will be able to pass all or a large part of this cost on to the tenants in the form of higher rent. Since most city residents not owning their own homes are lessees of dwelling units, virtually all residents share the burden of property taxes imposed and used to service general obligation bonds. Moreover, property taxes on commercial property, much of which is owned by corporations having no vote, will be treated as a cost of doing business and will normally be reflected in the prices of goods and services purchased by nonproperty owners and property owners alike.

While in theory the expected future income from real property, and hence property values in a municipality, may depend in part on the predicted future levels of property taxes, the actual impact of an increase in property taxes is problematical. Moreover, to the extent that property values are directly affected by the additional potential tax burden entailed in the bond issue, any adverse effect would normally be offset at least in substantial part by the favorable effects on property values of the improvements to be financed by the bond issue.

It is true that a general obligation bond may be loosely described as a “lien” on the property within the jurisdiction of the municipality in the sense that the issuer undertakes to levy sufficient taxes to service the bond. In theory, if the economy of the issuing city were to collapse, the levy of sufficiently high property taxes on property producing little or no income might result in some cases in defaults, foreclosures, and tax sales. Nothing before us, however, indicates that the possibility of future foreclosures to meet bond obligations significantly affects current real estate values or the ability of the concerned property owner to liquidate his holdings to avoid the risk of those future difficulties; the price of real estate appears to be more a function of the health of the local economy than a reflection of the level of property taxes imposed to finance municipal improvements. In any event, we are not convinced that the risk of future economic collapse that might result in bond obligations becoming an unshiftable, unsharable burden on property owners is sufficiently real or substantial to justify denying the vote in a current bond election to all those nonproperty owners who have a significant interest in the facilities to be financed, who are now indirectly sharing the property tax burden, and who will be paying other taxes used by the municipality to service its general obligation bonds.

We thus conclude that, although owners of real property have interests somewhat different from the interests of nonproperty owners in the issuance of general obligation bonds, there is no basis for concluding that non-property owners are substantially less interested in the issuance of these securities than are property owners. That there is no adequate reason to restrict the franchise on the issuance of general obligation bonds to property owners is further evidenced by the fact that only 14 States now restrict the franchise in this way; most States find it possible to protect property owners from excessive property tax burdens by means other than restricting the franchise to property owners. The States now allowing all qualified voters to vote in general obligation bond elections do not appear to have been significantly less successful in protecting property values and in soundly financing their municipal improvements. Nor have we been shown that the 14 States now restricting the franchise have unique problems that make it necessary to limit the vote to property owners. We must therefore affirm the District Court’s declaratory judgment that the challenged provisions of the Arizona Constitution and statutes, as applied to exclude nonproperty owners from elections for the approval of the issuance of general obligation bonds, violate the Equal Protection Clause of the United States Constitution.

II

In view of the fact that over the years many general obligation bonds have been issued on the good-faith assumption that restriction of the franchise in bond elections was not prohibited by the Federal Constitution, it would be unjustifiably disruptive to give our decision in this case full retroactive effect. We therefore adopt a rule similar to that employed with respect to the applicability of the Cipriano decision: our decision in this case will apply only to authorizations for general obligation bonds that are not final as of June 23, 1970, the date of this decision. In the case of States authorizing challenges to bond elections within a definite period, all elections held prior to the date of this decision will not be affected by this decision unless a challenge on the grounds sustained by this decision has been or is brought within the period specified by state law. In the case of States, including apparently Arizona, that do not have a well-defined period for bringing challenges to bond elections, all elections held prior to the date of this decision that have not yet been challenged on the grounds sustained in this decision prior to the date of this decision will not be open to challenge on the basis of our ruling in this case. In addition, in States with no definite challenge period, the validity of general obligation bonds that have been issued before this decision and prior to the commencement of an action challenging the issuance on the grounds sustained by this decision will not be affected by the decision in this case. Since ap-pellee in this case brought her constitutional challenge to the Phoenix election prior to the date of our decision in this case and no bonds have been issued pursuant to that election, our decision applies to the election involved in this case. The District Court was therefore correct in holding that the June 10, 1969, bond election in Phoenix was constitutionally invalid and in enjoining the issuance of bonds pursuant to the approval obtained in that election.

Affirmed.

Mr. Justice Black concurs in the judgment and in Part I of the opinion of the Court.

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

Mr. Justice Stewart,

whom The Chief Justice and Mr. Justice Harlan join,

dissenting.

If this case really involved an “election,” that is, a choice by popular vote of candidates for public office under a system of representative democracy, then our frame of reference would necessarily have to be Reynolds v. Sims, 377 U. S. 533, and its progeny. For, rightly or wrongly, the Court has said that in cases where public officials with legislative or other governmental power are to be elected by the people, the Constitution requires that the electoral franchise must generally reflect a regime of political suffrage based upon “one man, one vote.” Recent examples of that constitutional doctrine are the Court’s decisions in Kramer v. Union Free School District, 395 U. S. 621, involving the franchise to vote for the members of a school board; and Hadley v. Junior College District, 397 U. S. 50, involving the apportionment of voting districts for the election of the trustees of a state junior college.

Whether or not one accepts the constitutional doctrine embodied in those decisions, they are of little relevance here. For in this case nobody has claimed that the members of the City Council of Phoenix, Arizona- — the individual appellants here — were elected in any way other than on a one man, one vote basis, or that they do not fully and fairly represent the entire electorate of the municipality. And it was these councilmen who initiated the program for borrowing money so that the city might have a sewer system, parks and playgrounds, police and public safety buildings, a new library, and other municipal improvements. Having made that initial decision, the councilmen submitted the borrowing and construction program for final approval by those upon whom the burden of the municipal bonded indebtedness would legally fall — the property owners of the city. These property owners approved, the entire program by a majority vote. Yet the Court today says the Equal Protection Clause prevents the city of Phoenix from borrowing the money to build the public improvements that the council and the property owners of the city have both approved. I cannot believe that the United States Constitution lays such a heavy hand upon the initiative and independence of Phoenix, Arizona, or any other city in our Nation.

In Cipriano v. City of Houma, 395 U. S. 701, the Court held unconstitutional a Louisiana law that permitted only property owners to vote on the question of approving bonds that were to be financed exclusively from the revenues of municipally operated public utilities. I agreed with that decision, because the State had created a wholly irrelevant voting classification. Id., at 707 (Black and Stewart, JJ., concurring in the judgment). As the Court there noted:

“The revenue bonds are to be paid only from the operations of the utilities; they are not financed in any way by property tax revenue. Property owners, like nonproperty owners, use the utilities and pay the rates; however, the impact of the revenue bond issue on them is unconnected to their status as property taxpayers. Indeed, the benefits and burdens of the bond issue fall indiscriminately on property owner and nonproperty owner alike.” Id., at 705.

The case before us bears only a superficial resemblance to Cipriano, for we deal here, not with income-producing utilities that can pay for themselves, but with municipal improvements that must be paid for by the taxpayers. Under Arizona law a city’s general bonded indebtedness effectively operates as a lien on all taxable real estate located within the city’s borders. During the entire life of the bonds the privately owned real property in the city is burdened by the city’s pledge — and statutory obligation — to use its real estate taxing power for the purpose of repaying both interest and principal under the bond obligation. Whether under these circumstances Arizona could constitutionally confer upon its municipal governing bodies exclusive and absolute power to incur general bonded indebtedness without limit at the expense of real property owners is a question that is not before us. For the State has chosen a different policy, reflected in both its constitutional and statutory law. It has told the governing bodies of its cities that while they are free to plan and propose capital improvements, general obligation bonds cannot be validly issued to finance them without the approval of a majority of those upon whom the weight of repaying those bonds will legally fall.

This is not the invidious discrimination that the Equal Protection Clause condemns, but an entirely rational public policy. I would reverse the judgment, because I cannot hold that the Constitution denies the- City of Phoenix the public improvements that its Council and its taxpayers have endorsed.

      The relevant Arizona statute provides as follows:
      “A. After the bonds are issued, the governing body or board shall enter upon its minutes a record of the bonds sold, their numbers and dates, and shall annually levy and cause to be collected a tax, at the same time and in the same manner as other taxes are levied and collected upon all taxable property in such political subdivision, sufficient to pay the interest on the bonds when due, and shall likewise annually levy a tax sufficient to redeem the bonds when they mature.
      “B. Monies derived from the levy of the tax when collected shall constitute a fund for payment of interest and the bonds. The fund shall be kept separately and shall be known as the 'Interest Fund’ and ‘Redemption Fund.’” Ariz. Rev. Stat. Ann. §35-458 (1956).
      In Allison v. City of Phoenix, 44 Ariz. 66, 33 P. 2d 927 (1934), the Arizona Supreme Court ruled that the predecessor of this section permitted an issuing municipality to use other funds for debt service if such funds were available. In this case the parties have stipulated that for the 1969-1970 fiscal year $3,244,773 of the city’s total general obligation debt service requirement of $5,594,937 was met from sources other than ad valorem property taxes and that this apportionment of debt service burden is typical of recent years.

       Ariz. Const., Art. 7, §13, Art. 9, §8; Ariz. Rev. Stat. Ann. §§9-523, 35-452 (1956), §35-455 (Supp. 1969).

       See n. 1, supra.

       In 1967-1968, property taxes yielded $26.835 billion (approximately 86%) of the $31.171 billion raised in taxes by local governments. U. S. Dept. of Commerce, Bureau of the Census, Governmental Finances in 1967-68, p. 20 (1969).

       For the 1969-1970 fiscal year, the City of Phoenix utilized revenues other than revenues from property taxes to meet over 55% of its general obligation debt service requirements. See n. 1, supra.

       In this case the parties stipulated that “the amount of money paid as real property taxes is a cost of doing business of the [appellee’s] landlord and as such has a material bearing on the cost of the [appellee’s] rental payments.”
      The extent to which a landlord can pass along an increase in property taxes to his tenants generally depends on how changes in rent levels in the municipality affect the amount of rental property demanded — the less responsive the demand for rental property to changes in rent levels, the larger the proportion of property taxes that will ultimately be borne by tenants. See C. Shoup, Public Finance 385-390 (1969); D. Netzer, Economics of the Property Tax 32-40 (1966); Simon, The Incidence of a Tax on Urban Real Property, in Readings in the Economics of Taxation 416 (published by the American Economic Assn. 1959).

       In 1957, about 28%% of real property taxes paid to local governments in the United States were paid on commercial and industrial properties. See Netzer, supra, n. 6, at 19.

       In theory, the value of property is the present value of the expected income to be earned from the property in the future; in the case of owner-occupied residences, this “income” is the satisfaction which the homeowners derive from the enjoyment of their residences. Property taxes on rental property will reduce the expected future earnings from the property to the extent that it is expected that the taxes cannot be passed on to tenants in the form of higher rent. See n. 6, supra. For owner-occupiers the property tax will reduce the expected “income” net of costs and will thus reduce the value of. their property. For a further discussion of this “capitalization” of unshiftable future property taxes, see H. Newman, An Introduction to Public Finance 262 (1968); Shoup, supra, n. 6, at 442-443; Netzer, supra, n. 6, at 34-36; J. Jensen, Property Taxation in the United States 63-75 (1931).

       The empirical evidence on capitalization of unshifted property taxes has been described as “most unsatisfactory.” See Netzer, supra, n. 6, at 34-35; see also Shoup, supra, n. 6, at 443.

       See Netzer, supra, n. 6, at 34.

       It appears from the briefs filed in this ease that 13 States besides Arizona restrict the franchise to property owners or property taxpayers in some or all general obligation bond elections:
      Alaska (Alaska Stat. § 07.30.010 (b) (Supp. 1969)); Colorado (Colo. Const., Art XI, §§ 6, 7, and 8); Florida (Fla. Const., Art. 7, §12); Idaho (Idaho Code Ann. §31-1905 (1963), §33-404 (Supp. 1969), § 50-1026 (1967)); Louisiana (La., Const-., Art. 14,, § 14 (a)) ; Michigan (Mich. Const., Art. II, § 6); Montana (Mont. Const., Art. IX, §2, Art. XIII, §5; Mont. Rev. Codes Ann. §11-2310 (1968), §75-3912 (1962)); New Mexico (N. M. Const., Art. IX, §§10, 11, and 12); New York (N. Y. Town Law §84 (1965); N. Y. Village Law §4r-402 (1966)); Oklahoma (Okla. Const., Art. X, § 27); Rhode Island (R. I. Const, amdt. 29, § 2); Texas (Tex. Const., Art. 6, §3a); Utah (Utah Const., Art. XIV, §3).

       Ariz. Rev. Stat. Ann. § 16-1202 (Supp. 1969) and §16-1204 (1956) provide that election contest suits generally must be brought by “electors” within five days after completion of the canvass and declaration of the result of an election. Under the Arizona Supreme Court’s decision in Morgan v. Board of Supervisors, 67 Ariz. 133, 192 P. 2d 236 (1948), it is unclear whether suits brought after the expiration of the five-day period to challenge a bond election on constitutional grounds would in all cases be barred. The District Court found there was no bar to suit in this case.

      Ariz. Rev. Stat. Ann. §35-458 provides: “After the bonds are issued, the governing body or board . . . shall annually levy and cause to be collected a tax . . . upon all taxable property in such political subdivision, sufficient to pay the interest on the bonds when due, and ... to redeem the bonds when they mature.”
      In Allison v. City of Phoenix, 44 Ariz. 66, 33 P. 2d 927 (1934), the Arizona Supreme Court held that if a city has money available from another source “it may from time to time be transferred to the interest and redemption funds created by the statute. . . 44 Ariz., at 77, 33 P. 2d, at 931. The court made clear, however, that the predecessor of Ariz. Rev. Stat. Ann. § 35-458 “is mandatory and binding upon all parties mentioned therein, and that they must levy and cause to be collected a tax for the payment of bonds issued under such article, in the manner provided by such section.” Id., at 74, 33 P. 2d, at 930. The use of excise taxes to repay general obligation bonds is thus optional, but the imposition of ad valorem. taxes for these purposes is mandatory.
      Taxes imposed on real property in Arizona become a lien on that property. Ariz. Rev. Stat. Ann. § 42-312.

       The constitutional and statutory provisions applicable to all bond authorization elections of incorporated cities and towns in the State of Arizona limit the right to vote in such elections to persons who are qualified electors and who are also real property tax-layers. Ariz. Const., Art. 7, § 13; Art. 9, § 8. Ariz. Rev. Stat. Ann. § 9-523 and § 35-455. These constitutional and statutory provisions apply to all political subdivisions within the State of Arizona, and not just to cities and towns.

       Since the Court’s contrary view today prevails, I add that upon that premise The Chief Justice and I agree with Part II of the Court’s opinion, and that Mr. Justice Harlan also joins in Part II of the Court’s opinion, subject, however, to the views expressed in his concurring opinion in United States v. Estate of Donnelly, 397 U. S. 286, 295 (1970).


text:
    ARKANSAS v. TENNESSEE
    No. 33,
    Orig.
    Decided February 25, 1970
    Decree entered (inter alia, appointing Boundary Commissioner) February 25, 1970—
    Decree entered (establishing boundary line) June 23, 1970
   This Court on February 25, 1970, 397 U. S. 88, 91, having entered a decree and appointed a Boundary Commissioner to survey the boundary between Arkansas and Tennessee and pursuant to that decree the said Commissioner having filed a “Report on Commission to Survey” in which he sets forth the General Location and Specific Location of such boundary to which the parties have approved and consented,

It is ordered, adjudged, and decreed That such boundary shall be fixed as follows:

General Location
The state boundary line involved herein is located between Crittenden County, Arkansas, and Shelby County, Tennessee, in an area formerly known as Cow Island Bend, and more recently called Scanlan Chute, Frog Chute, Ike Chute or Lake, and 96 Chute; and is generally within a rectangle between latitudes 35° 00' and 35° 03', and longitudes 90° 15' and 90° 19', and is more particularly described as follows:
Specific Location
Beginning at a point, designated as Station No. 1, which point is, S 6° 34' E, at 1,359.0 feet from, Mississippi River Commission Permanent Bench Mark “Scanlan,” whose coordinates are, latitude 35° 02' plus 1,555.76 feet, and longitude 90° 15' plus 1,014.42 feet. (Reference for PBM “Scanlan,” see page 118 of Permanent Marks, Volume One of Mississippi River Commission.)
Said above beginning point being on a line running, S 75° 39' E, 3,500.0 feet more or less from, the present Steamboat Channel (thalweg) of the Mississippi River; thence N 75° 39' W, 645.8 feet to a point; thence N 75° 54' W, 2,112.0 feet to a point; thence N 17° 18' W, 920.4 feet to a point; thence N 35° 25' W, 436.3 feet to a point; thence N 62° 36' W, 491.3 feet to a point, designated as Station No., 2; thence S 85° 53' W, 2,161.6 feet to a point; thence S 82° 00' W, 1,443.3 feet to a point; thence N 87° 38' W, 2,739.7 feet to a point; thence S 79° 35' W, 1,808.5 feet to a point; thence S 38° 47' W, 1,033.1 feet to a point; thence S 24° 52' W, 811.0 feet to a point; thence S 7° 38' W, 2,085.5 feet to a point; thence S 11° 29' W, 1,725.2 feet to a point, designated as Station No. 3; thence S 23° 31' W, 3,098.3 feet to a point; thence S 0° 51' E, 1,370.5 feet to a point; thence S 13° 15' E, 1,258.1 feet to a point, designated as Station No. 4; thence S 38° 45' W, 814.5 feet to a point; thence S 23° 55' W, 864.1 feet to a point; thence S 12° 30' W, 644.4 feet to a point; thence S 6° 30' W, 1,270.5 feet to a point, which point is, S 81° 52' E (Mag.), 2,736.5 feet from, United States Engineer Arkansas Levee Bench Mark for Mile Post 170/171; thence S 17° 40' E, 1,627.0 feet to a point; thence S 6° 50' E, 1,485.0 feet to a point; thence S 22° 10' E, 2,500.0 feet more or less, to the present Steamboat Channel (thalweg) of the Mississippi.

The above surveyed boundary line between the States of Arkansas and Tennessee in the area involved is shown by a broken line marked on the attached 1965 aerial photograph of said area, which aerial photograph is also designated Appendix A-I to this Court’s decree of February 25, 1970


author: Per Curiam.

text:
    PERKINS v. STANDARD OIL CO. OF CALIFORNIA
    No. 1507.
    Decided June 23, 1970

       Together with No. 1556, Perkins v. Standard Oil Co. of California, on petition for writ of certiorari to the same court.

   Per Curiam.

Following his success in this Court in Perkins v. Standard Oil Co., 395 U. S. 642, the petitioner filed in the District Court for the District of Oregon an application for allowance of attorneys’ fees, pursuant to § 4 of the Clayton Act, for legal services performed during the appellate stages of that litigation, both in the Court of Appeals and in this Court. The District Court denied the application, ruling that § 4 did not authorize the allowance of attorneys’ fees for services performed in connection with appellate proceedings.

Petitioner appealed this decision to the Court of Appeals and simultaneously filed in that court two separate applications for attorneys’ fees for legal services performed there and in this Court. The Court of Appeals denied the latter application, believing that our mandate in Perkins, by not mentioning attorneys’ fees, was intended to preclude an award of such fees.

The District Court was in error in holding that § 4 does not authorize the award of counsel fees for legal services performed at the appellate stages of a successfully prosecuted private antitrust action. Both the language and purpose of § 4 make that construction untenable. See American Can Co. v. Ladoga Canning Co., 44 F. 2d 763, cert. denied, 282 U. S. 899. The amount of the award for such services should, as a general rule, be fixed in the first instance by the District Court, after hearing evidence as to the extent and nature of the services rendered. See, e. g., Osborn v. Sinclair Refining Co., 207 F. Supp. 856, 864. The Court of Appeals was also in error in interpreting our mandate as precluding the award of such fees for services performed in connection with the litigation in this Court. Our failure to make explicit mention in the mandate of attorneys’ fees simply left the matter open for consideration by the District Court, to which the mandate was directed.

The petitions for certiorari are granted and the judgments are vacated. No. 1556 is remanded to the District Court, and No. 1507 to the Court of Appeals, for further proceedings consistent with this opinion.

It is so ordered.

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

       That section provides in pertinent part as follows:
      “Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States . . . and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.” 38 Stat. 731, 15 U. S. C. § 15.


author:
Mr. Chief Justice Burger Mr. Justice Harlan,
      MR. Justice Douglas,

text:
    NELSON, WARDEN v. GEORGE
    No. 595.
    Argued March 31, 1970
    Decided June 29, 1970

      Louise H. Renne, Deputy Attorney General of California, argued the cause for petitioner. With her on the briefs were Thomas C. Lynch, Attorney General, Albert W. Harris, Jr., Assistant Attorney General, and Edward P. O’Brien, Deputy Attorney General.

      George A. Gumming, Jr., by appointment of the Court, 397 U. S. 901, argued the cause and filed a brief for respondent.
   Mr. Chief Justice Burger

delivered the opinion of the Court.

We granted the writ in this case to consider whether the respondent, presently confined in California under a state conviction, may utilize the federal courts in California to test the validity of a North Carolina sentence before beginning to serve that sentence and while under a detainer filed by North Carolina. Respondent claims the sentence yet to be served in North Carolina is “consecutive” under Peyton v. Rowe, 391 U. S. 54 (1968). However, since his petition challenges the present effect being given the North Carolina detainer by the California authorities, particularly with respect to granting him parole, we have concluded that as to that claim respondent failed to exhaust his state remedies and accordingly do not reach the question for which the writ was granted.

The record discloses that on April 27, 1964, John Edward George was convicted on a plea of guilty in a California court of first-degree robbery. He began serving his sentence of five years to life at San Quentin. Following his conviction, detainers were filed in California by the States of Kansas, Nevada, and North Carolina, on June 4, 10, and 11, 1964, respectively.

Exercising his right under Article III (a) of the interstate “Agreement on Detainers,” George requested temporary release to stand trial on the underlying robbery charge pending in North Carolina. Accordingly, on July 20, 1966, he was released to North Carolina authorities and transported there to stand trial. The North Carolina trial was held, and on February 8, 1967, George was convicted and sentenced to imprisonment for 12 to 15 years. The conviction was thereafter affirmed, State v. George, 271 N. C. 438, 156 S. E. 2d 845 (1967).

Following the North Carolina trial George was returned to San Quentin to complete service of his California sentence. On April 14, 1967, the clerk of the Gaston County Superior Court addressed a letter to the Records Officer at San Quentin advising that George was “wanted at the termination of his imprisonment there for return to this jurisdiction to serve the sentence imposed in the Superior Court of Gaston County, North Carolina.” The Warden of San Quentin acknowledged the detainer, indicating that it was “noted in our records.”

George then brought a petition for habeas corpus in the United States District Court for the Northern District of California in which he sought to attack not his California conviction, for which he was then incarcerated, but the North Carolina conviction for which the detainer had been filed. The District Court denied the application by order dated March 1, 1968, on the ground that McNally v. Hill, 293 U. S. 131 (1934), foreclosed habeas corpus relief on the North Carolina conviction while George was still in custody under the prior California judgment.

George filed a petition for rehearing in the District Court in which he argued that even though he was actually serving time in a California jail and thus not technically serving his North Carolina sentence, habeas corpus was not foreclosed since the North Carolina detainer operated as a form of constructive custody. In support of his contention he drew upon the language in Arketa v. Wilson, 373 F. 2d 582 (C. A. 9th Cir. 1967), to the effect that the strict rule of McNally v. Hill had been somewhat eroded by this Court’s subsequent decisions in Ex parte Hull, 312 U. S. 546 (1941), and Jones v. Cunningham, 371 U. S. 236 (1963), and that “it appears that there are situations in which the writ can be used to free a petitioner from a certain type of custody, rather than from all custody.” Arketa v. Wilson, supra, at 584. George argued that the North Carolina warrant was “a form of custody” since it affected his custodial classification and probability of parole on his California sentence. On March 20, 1968, the District Court denied the petition for rehearing and George appealed to the Court of Appeals for the Ninth Circuit.

Our decision in Peyton v. Rowe intervened. In that case we overruled McNally v. Hill, 293 U. S. 131 (1934), and held that a state prisoner serving consecutive sentences in the forum state is “in custody” under each sentence for purposes of jurisdiction for collateral attack under 28 U. S. C. § 2241 (c)(3), thus permitting a federal habeas corpus action to test a future state sentence while he is serving an earlier sentence. In Peyton v. Rowe the consecutive sentences were imposed by the forum State, and the sentences were being served in that State’s prison. Unlike the case now before us, in such a single-state situation the challenge to the continuing vitality of Ahrens v. Clark, 335 U. S. 188 (1948), does not arise. See Word v. North Carolina, 406 F. 2d 352 (C. A. 4th Cir. 1969).

As we have noted, having named the Warden of San Quentin as the respondent in his amended petition to the Federal District Court in California and having had his petition refused, George sought rehearing. In that application George alleged that the California authorities had imposed upon him a “form of custody” because of the North Carolina detainer. Specifically, he alleged that the mere presence of the detainer adversely affected the probability of his securing parole and the degree of security in which he was detained by state authorities. California denies that the existence of the detainer has any consequences affecting his parole potential or custodial status.

Since the Full Faith and Credit Clause does not require that sister States enforce a foreign penal judgment, Huntington v. AttrilL, 146 U. S. 657 (1892); cf. Milwaukee County v. M. E. White Co., 296 U. S. 268, 279 (1935), California is free to consider what effect, if any, it will give to the North Carolina detainer in terms of George’s present “custody.” Because the petition for rehearing raised precisely such a challenge to the California “custody,” a matter that has not yet been presented to the California courts, we conclude that respondent George has not yet exhausted his California remedies. See Ex parte Royall, 117 U. S. 241 (1886).

Respondent insists that the very presence of the North Carolina detainer has and will continue to have an adverse impact on California’s consideration of his claim for parole. Therefore, the United States District Court in California should retain jurisdiction of the petition for habeas corpus relief pending respondent’s further application to the California courts for whatever relief, if any, may be available and appropriate if he establishes his claim that North Carolina’s detainer interferes with relief that might, in the absence of the detainer, be granted by California. We affirm the judgment of the Court of Appeals to the extent it finds jurisdiction in the District Court to consider respondent’s claims with respect to the impact of the detainer if respondent elects to press those claims after he exhausts his remedies in the California courts.

Affirmed.

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

Mr. Justice Harlan,

with whom Mr. Justice Marshall joins,

concurring.

I join the Court’s opinion with the following observations. First, I do not understand the Court to suggest that respondent’s failure to exhaust state remedies with respect to his claim that California is giving a constitutionally impermissible effect to his North Carolina conviction, rendered it improper for the federal courts to consider his challenge to the validity of the North Carolina conviction to the extent that he had exhausted North Carolina remedies with respect thereto. Second, agreeing with the reasons given by the Court for not reaching the propriety of the Court of Appeals’ resolution of respondent’s challenge to the North Carolina conviction, I would dismiss that part of the writ as improvidently granted. Third, pending the congressional action that the Court’s opinion envisages, I think it not inappropriate to leave undisturbed such conflicts as exist between the decision of the Court of Appeals in the present case and decisions in other circuits, see Word v. North Carolina, 406 F. 2d 352 (C. A. 4th Cir. 1969); United States ex rel. Van Scoten v. Pennsylvania, 404 F. 2d 767 (C. A. 3d Cir. 1968), respecting the proper treatment of habeas corpus claims such as those involved in respondent’s challenge in the California courts to the validity of his North Carolina conviction.

MR. Justice Douglas,

dissenting.

This California prisoner is seeking to challenge by federal habeas corpus the constitutionality of his conviction in North Carolina, the sentence for which he must serve when he finishes his California term. The infirmities of the North Carolina judgment that he alleges relate to the absence of a speedy trial and to the knowing use of perjured testimony. North Carolina filed a detainer against him in California; and it is that detainer, not the North Carolina judgment, that the Court uses to avoid decision on the basic issue raised in the petition. The petition for habeas corpus stated, “It is the North Carolina Supreme Court decision that is under attack here.” The only reference to a detainer made in the petition was to the detainer filed prior to his return to North Carolina for trial. The reference to the detainer filed after his North Carolina conviction was made in his petition for rehearing. The District Court had dismissed the petition before Peyton v. Rowe, 391 U. S. 54, was decided; and in his argument for a rehearing the prisoner sought to distinguish McNally v. Hill, 293 U. S. 131, which Peyton v. Rowe overruled, by arguing that his case was different because the North Carolina de-tainer was being used to his disadvantage in California. Both the petition for habeas corpus and the petition for rehearing were pro se products. Thus the false issue got into the case.

The Court holds that the challenge of the North Carolina judgment may not yet be made in California because the prisoner has not yet shown under California law whether the existence of the North Carolina detainer can affect or is affecting his parole potential or custodial status and therefore that he has not exhausted his remedies under 28 U. S. C. § 2254 (1964 ed., Supp. Y).

The remedies with which 28 U. S. C. § 2254 (1964 ed., Supp. V) is concerned relate to those which would remove the infirmities in the North Carolina judgment, making unnecessary federal intervention. Plainly, California can supply no such remedies.

The remedies to which the Court adverts are of a wholly different character — they concern California procedures for correcting any improper use in California of North Carolina’s judgment. They are wholly irrelevant to the reasons why we held in Peyton v. Rowe that a state prisoner serving one sentence may challenge by federal habeas corpus the constitutionality of a second state sentence scheduled for future service. We ruled that if prisoners had to wait until the first sentence was served before the constitutionality of the second could be challenged, grave injustices might be done:

“By that time, dimmed memories or the death of witnesses is bound to render it difficult or impossible to secure crucial testimony on disputed issues of fact. ... To name but a few examples [of prejudice resulting from the kind of delay McNally imposes], factual determinations are often disposi-tive of claims of coerced confession . .. ; lack of competency to stand trial . . . ; and denial of a fair trial .... Postponement of the adjudication of such issues for years can harm both the prisoner and the State and lessens the probability that final disposition of the case will do substantial justice.” 391 U. S., at 62.

If the prisoner was seeking to escape the rigors of the detainer filed by North Carolina, the exhaustion of California remedies would of course be proper. But the gravamen of the petition for habeas corpus concerned the validity of North Carolina’s judgment and that is “the question presented” within the meaning of 28 U. S. C. § 2254 (1964 ed., Supp. V).

The Court of Appeals, 410 F. 2d 1179, did not decide that only California, not North Carolina, could pass on the merits of the petition, viz., on the validity or invalidity of the North Carolina judgment. It emphasized that there were practical difficulties whichever forum were chosen. Id., at 1182. Trying the issues in California would put a burden on North Carolina prosecutors and witnesses. Trying the issues in North Carolina would entail problems of expense and security insofar as the prisoner’s appearance there was needed. The fact that the federal court in California has “jurisdiction,” it ruled, does not mean that it could not transfer the cause to the federal court in North Carolina.

The Court of Appeals left open for the informed discretion of the District Court the question of how and where the prisoner may be heard on the constitutionality of the North Carolina judgment. I would affirm the Court of Appeals and reserve for another day the question whether the application could be transferred to North Carolina for hearing.

       Under California law the sentence for first-degree robbery is an indeterminate five years to life sentence in the discretion of the California Adult Authority. Cal. Pen. Code § 213.

       Cal. Pen. Code § 1389 (Supp. 1968).

       App. 26.

       “§ 2241. Power to grant writ.
      “(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions. The order of a circuit judge shall be entered in the records of the district court of the district wherein the restraint complained of is had.
      “(e) The writ of habeas corpus shall not extend to a prisoner unless—
      “(3) He is in custody in violation of the Constitution or laws or treaties of the United States . . .

       In that case Chief Judge Haynsworth, expressing the views of the majority of the Court of Appeals for the Fourth Circuit sitting en banc, concluded that Ahrens v. Clark was a venue decision, and that the physical presence of the petitioner within the district was not an invariable requirement if rigid adherence to the rule would leave one in prison without an effective remedy. .The legislative history of the 1966 amendments to 28 U. S. C. § 2241 (d) (1964 ed., Supp. V) suggests that Congress may have intended to endorse and preserve the territorial rule of Ahrens to the extent that it was not altered by those amendments. See H. R. Rep. No. 1894, 89th Cong., 2d Sess., 1-2 (1966). See also S. Rep. No. 1502, 89th Cong., 2d Sess. (1966). Those changes were made by Congress, of course, prior to our decision in Peyton v. Rome; necessarily Congress could not have had the multistate problem with which we are now confronted in mind. Whether, in light of the legislative history of § 2241 (d) and the changed circumstances brought about by Peyton v. Rowe, the rigor of our Ahrens holding may be reconsidered is an issue upon which we reserve judgment.
      However, we note that prisoners under sentence of a federal court are confronted with no such dilemma since they may bring a challenge at any time in the sentencing court irrespective of where they may be incarcerated. 28 U. S. C. § 2255, It is anomalous that the federal statutory scheme does not contemplate affording state prisoners that remedy. The obvious, logical, and practical solution is an amendment to § 2241 to remedy the shortcoming that has become apparent following the holding in Peyton v. Rowe. Sound judicial administration calls for such an amendment.

       We are not here concerned with the scope of California’s ultimate duty, imposed by Art. IV, § 2, cl. 2, of the Constitution, to extradite persons wanted for trial or execution of sentence in a sister State. We note only that, until the obligation to extradite matures, the Full Faith and Credit Clause does not require California to enforce the North Carolina penal judgment in any way.

      “(b) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.
      “(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.” (Italics added.)

       See 28 U. S. C. § 1404 (a); Word v. North Carolina, 406 F. 2d 352.
      In H. R. Rep. No. 1894, 89th Cong., 2d Sess., 1-2, it is stated:
      “Section 2241 of title 28, United States Code, vests jurisdiction to entertain habeas corpus applications only in the district court for the district in which the prisoner is confined (Ahrens v. Clark, 335 U. S. 188). Further, since there is no other forum '. . . where it might have been brought,’ the application may not be transferred to a different district pursuant to the provisions of section 1404 (a) of title 28, United States Code (Hoffman v. Blaski, 363 U. S. 335).” See also S. Rep. No. 1502, 89th Cong., 2d Sess. These reports are concerned with the 1966 amendment to § 2241, which permits the district court in whose district a habeas petitioner was convicted to consider the habeas petition even though the habeas petitioner is incarcerated outside the jurisdiction of that district court so long as the habeas petitioner is incarcerated within the State in which the district court sits. The 1966 amendment thus solves the problem posed by Ahrens but only where the district of his incarceration and the district in which he was convicted are in the same State. Section 2241, as construed in Ahrens, was thus left unaffected where the districts involved are in different States.