author: Mr. Justice Goldberg

text:
    TILTON et al. v. MISSOURI PACIFIC RAILROAD CO.
    No. 49.
    Argued January 7, 1964.
    Decided February 17, 1964.

      Philip B. Heymann argued the cause for petitioners. On the brief were Solicitor General Cox, Assistant Attorney General Douglas, Alan S. Rosenthal and Richard S. Salzman.

      Robert W. Yost argued the cause and filed a brief for respondent.

      George S. Parish filed a brief for the Veterans of Foreign Wars National Rehabilitation Service, as amicus curiae, urging reversal.

      Clarence M. Mulholland, Edward J. Hickey, Jr. and Richard R. Lyman filed a brief for the Railway Employes’ Department, AFL-CIO, as amicus curiae, urging affirmance.
   Mr. Justice Goldberg

delivered the opinion of the Court.

Since 1940 Congress, as an integral part of selective service legislation, has protected the reemployment rights of veterans. The principle underlying this legislation is that he who is “called to the colors [is] not to be penalized on his return by reason of his absence from his civilian job.” Fishgold v. Sullivan Drydock & Repair Corp., 328 U. S. 275, 284. Petitioners, reemployed veterans, sued respondent railroad, their employer, in the District Court for the Eastern District of Missouri. They claimed that they have been deprived of seniority rights to which they are entitled under the Universal Military Training and Service Act and the applicable collective bargaining agreement.

The District Court held that petitioners were not entitled to the relief they sought. The Court of Appeals for the Eighth Circuit affirmed. 306 F. 2d 870. We granted certiorari, 372 U. S. 905, because of the importance of the question in administering the statute protecting veterans’ reemployment rights. For the reasons stated below, we reverse the judgments of the Court of Appeals.

The facts are not in dispute. Petitioners were initially employed by respondent railroad as carmen helpers. At the time of their original employment and since, the railroad has suffered from a shortage of qualified journeymen carmen mechanics. The collective bargaining agreement between the union representing the carmen, the Brotherhood Railway Carmen of America, and the railroad has provided methods for alleviating this shortage. Whenever the railroad is unable to employ persons presently qualified as carmen mechanics, the agreement provides for the advancement or “upgrading” of carmen helpers to provisional carman status. Representatives of the railroad and the union jointly select the helpers to be so advanced. A helper thus “upgraded” can then be employed by the railroad to perform the work of a journeyman carman mechanic and is entitled to be paid a carman mechanic’s wage.

Under the labor agreement, however, the “upgraded” helper does not immediately acquire permanent seniority as a journeyman. He retains his seniority as a helper until completing 1,040 days of actual work as a carman mechanic. At the end of that time the upgraded helper is considered a “qualified carman.” He may then acquire a seniority date as a journeyman by making an election to that effect in writing.

Petitioners were upgraded from carmen helpers in accordance with the terms of the agreement. They were subsequently inducted into military service. At the time of his induction, Tilton had worked 145 days as a carman, Beck 851 days, and McClearn 21 days. Upon his honorable discharge from military service, each petitioner promptly returned to employment at the railroad, was reemployed as an upgraded carman, and thereafter satisfactorily completed the remainder of the 1,040-day work period necessary to qualify for journeyman status. Each, thereupon, immediately elected to acquire seniority as a journeyman carman mechanic. In each case, the railroad established petitioners’ seniority as journeymen as of the date each actually completed the 1,040-day work period. As a result, petitioners had journeyman seniority junior to that of some carmen who had been upgraded to provisional carman status after petitioners were so advanced but who — because they were not absent in military service — were able to complete the 1,040-day service requirement before petitioners.

These nonveterans are now ahead of petitioners on the journeymen carmen’s seniority roster and enjoy the advantages which seniority dictates, such as work preference and order of layoff and recall.

Petitioners contend that under this arrangement their absence in military service improperly affected their seniority because non veteran employees who were junior on the temporary upgraded list are now senior on the permanent carmen’s list.

Petitioners’ claim rests upon §§9 (c)(1) and 9 (c)(2) of the Universal Military Training and Service Act. In §9 (c)(1) Congress directed that veterans returning from military service be restored to their civilian employment “without loss of seniority.” This provision was first enacted as part of the National Guard Act, Joint Resolution of August 27, 1940, c. 689, 54 Stat. 858. The Chairman of the House Military Affairs Committee in reporting the conference and final version of the bill explained that one of the purposes of the reemployment provisions was to ensure restoration of the veteran to his “seniority status.” 86 Cong. Rec. 10761. The reemployment provisions, including what is now §9 (c)(1), were carried over into the Selective Service Bill, 86 Cong. Rec. 10922-10923, and became § 8 of the Selective Training and Service Act of 1940, 54 Stat. 885, 890, as amended, 50 U. S. C. App. (1946 ed.) § 308.

In Fishgold v. Sullivan Drydock & Repair Corp., 328 U. S. 275, the Court first considered and specifically interpreted the language in § 8 (c) of the 1940 Act dealing with restoration to veterans of their civilian employment “without loss of seniority.” The Court said: “Congress recognized in the Act the existence of seniority systems and seniority rights. It sought to preserve the veteran’s rights under those systems and to protect him against loss under them by reason of his absence.” Id., at 288. The Court observed:

“Thus he does not step back on the seniority escalator at the point he stepped off. He steps back on at the precise point he would have occupied had he kept his position continuously during the war.” Id., at 284-285.

This “escalator principle” was reaffirmed by the Court in Trailmobile Co. v. Whirls, 331 U. S. 40, and restated in Oakley v. Louisville & Nashville R. Co., 338 U. S. 278, 283:

“[A]n honorably discharged veteran, covered by the statute, [is] entitled by the Act to be restored not to a position which would be the precise equivalent of that which he had left when he joined the Armed Forces, but rather to a position which, on the moving escalator of terms and conditions affecting that particular employment, would be comparable to the position which he would have held if he had remained continuously in his civilian employment.”

Following these decisions Congress, in 1948, expressly approved the “escalator principle” and continuous employment standard applied by the Court by adopting § 9 (c)(2) of the present Act which provides:

“It is declared to be the sense of the Congress that any person who is restored to a position in accordance with the provisions of paragraph (A) or (B) of subsection (b) of this section should be so restored in such manner as to give him such status in his employment as he would have enjoyed if he had continued in such employment continuously from the time of his entering the armed forces until the time of his restoration to such employment.” 62 Stat. 604, 615-616, as amended, 50 U. S. C. App. § 459 (c)(2).

Section 9 (c)(2), in effect, confirms the Court’s interpretation of the meaning of § 8 (c) of the 1940 Act which is identical with §9(c)(l) of the present Act. McKinney v. Missouri-Kansas-Texas R. Co., 357 U. S. 265, 271.

It was in light of this background that the Court decided Diehl v. Lehigh Valley R. Co., 348 U. S. 960, which petitioners contend, and which we agree, controls the present case. Diehl involved facts and issues virtually identical with those now before us. Diehl, like petitioners, was a railroad carman helper temporarily “upgraded” to carman status. He was inducted into military service while holding this upgraded position and, upon his return was restored to it. The collective bargaining agreement between the railroad and the union provided that upgraded carmen who had completed 1,160 days of work in that capacity could elect journeymen car-man status. Upgraded men junior to Diehl had completed the requisite work period while he was in service and had been given seniority ahead of Diehl. Upon completion of the training period, Diehl protested claiming, as petitioners do here, that under §§ 9 (c)(1) and 9 (c)(2) of the Act, he was entitled to seniority as of the earlier date on which he would have completed the work period but for his absence in military service. The United States Court of Appeals for the Third Circuit decided against the veteran, on the ground that the Act protects only rights which are a mere function of time in grade and does not entitle the veteran to be treated as if he had been actively employed or trained during the period of military service. This Court reversed, per curiam, holding that “[u]pon the facts disclosed in the opinion of the Court of Appeals for the Third Circuit, 211 F. 2d 95, the applicable Acts of Congress, and the opinion of this Court in Oakley v. Louisville & Nashville R. Co., 338 U. S. 278, the judgment of the Court of Appeals is reversed.” Diehl v. Lehigh Valley R. Co., 348 U. S. 960.

Although it would be difficult to conceive of a more applicable and controlling precedent, the court below attempted to distinguish Diehl on the ground that there it had been stipulated that the claimant “would have completed” the work period on a given date if there had been no military service interruption. 306 F. 2d, at 877. “These stipulated words,” the court said, “imply that the work completion was not dependent upon prior resolution of any contingency or uncertainty.” Ibid. This case, unlike Diehl the court declared, “lacks the essentials of the automatic in the entire system of promotion from carman helper to full-fledged carman.” Ibid. This distinction, in our view, is untenable.

There is no room for doubt in this case that “on the moving escalator of terms and conditions affecting [this] particular employment,” Oakley v. Louisville & Nashville R. Co. 338 U. S. 278, 283, had petitioners remained continuously on the job during the period of their military service, they would have completed the work period and qualified as journeymen in advance of those who passed them in seniority during their absence. Each petitioner was entitled, under the labor agreement, to do carman’s work ahead of any upgraded after him. It was only because of petitioners’ military service that men upgraded after them were able to work more days as provisional car-men and to qualify as journeymen before them. But for their absence, petitioners would have qualified as journeymen carmen and achieved the seniority dates they now claim. This was confirmed by the testimony of the railroad’s Chief Personnel Officer, Mr. Smith, who in effect conceded that the railroad under the collective bargaining agreement had no discretion to refuse journeyman’s status to a helper who had successfully completed the work period:

“Q. Now, you have testified that these men, when they completed their three years or thousand and forty days of work, did not automatically acquire carman seniority. As soon as they made an election, the railroad had no choice but to give them the seniority, did it?
“A. [Mr. Smith] That’s right.
“Q. In other words, as soon as they completed the work requirement, made the election as of that time, they became carmen and drew a seniority date?
“A. [Mr. Smith] Correct.”

It is evident, therefore, that promotion upon completion of the training period was as automatic here as in Diehl.

The Court of Appeals, alternatively, refused to follow Diehl on the assumption that it was overruled sub silentio by the subsequent decision of this Court in McKinney v. Missouri-Kansas-Texas R. Co., 357 U. S. 265. The court below interpreted McKinney to hold that for a veteran to be entitled to an advancement in status, “the promotion in question [must] be automatic and . . . seemingly . . . automatic as a matter of foresight rather than of hindsight.” 306 F. 2d, at 876. The court concluded that advancement to journeyman car-man status in the instant cases did not meet that standard because it was subject to certain contingencies or “variables”: lay-offs due to illness or reduction in force; the continuing unavailability of enough qualified carmen to fill carmen’s positions; continuing satisfactory work by petitioners in the upgraded position; and petitioners’ decisions as to whether or not to elect full carman status. 306 F. 2d, at 877. Accordingly, the Court of Appeals held the eventual acquisition by petitioners of journeyman carman status could not have been foreseen with absolute certainty at the time they entered military service and that, under McKinney, they were therefore not entitled to seniority status as of the date they would probably have achieved it but for their military service.

In this reading of McKinney, the Court of Appeals erred. McKinney was not intended to and did not overrule Diehl. Nor did McKinney establish a requirement of absolute foreseeability. That case did not involve the Diehl-type situation where advancement depends essentially upon continuing employment. It turned upon the fact that the collective bargaining agreement there in issue made the exercise of management discretion a prerequisite to promotion. The Court concluded, therefore, that the advancement was not basically dependent upon continued employment. This is clear from the Court’s statement that:

“Promotion to a group 1 position from group 2, in which petitioner had formerly been employed, is not dependent simply on seniority. Under Rule 1 (3) (A) of the collective bargaining agreement it is dependent on fitness and ability and the exercise of a discriminating managerial choice. . . . The statute does not envisage overriding an employer’s discretionary choice by any such mandatory promotion.” 357 U. S., at 272.

Furthermore, the Court’s mandate in McKinney supports the view that the Court did not adopt a rule of absolute foreseeability. In remanding the case, the Court granted McKinney leave to amend his complaint to allege, if such was the fact, that in practice under the collective bargaining agreement “advancement from group 2 to group 1 is automatic.” 357 U. S., at 274. If the Court had intended to adopt a rule of absolute foreseeability of automatic advancement, it would not have permitted McKinney to amend his complaint. It was apparent that McKinney, when he left for service, could not have predicted with absolute certainty that a group 1 position would fall vacant in his absence; that he would be in adequate health to bid for it; that he would elect to bid for it; and that he would not have lost his lower position because of unsatisfactory performance. Properly read, therefore, McKinney holds that where advancement depends on an employer’s discretionary choice not exercised prior to entry into service, a returning veteran cannot show within the reasonable certainty required by the Act that he would have enjoyed advancement simply by virtue of continuing employment during the time he was in military service.

It would be virtually impossible for a veteran to show, as the Court of Appeals would require, that it was absolutely certain, “as a matter of foresight” when he entered military service, that all circumstances essential to obtaining an advancement in' status would later occur. To exact such certainty as a condition for insuring a veteran’s seniority rights would render these statutorily protected rights without real meaning. As Benjamin Franklin observed, “In this world nothing is certain but déath and taxes.” In every veteran seniority case the possibility exists that work of the particular type might not have been available; that the veteran would not have worked satisfactorily during the period of his absence; that he might not have elected to accept the higher position; or that sickness might have prevented him from continuing his employment. In light of the purpose and history of this statute, however, we cannot assume that Congress intended possibilities of this sort to defeat the veteran’s seniority rights. “This legislation,” the Court said in Fishgold v. Sullivan Dry dock & Repair Corp., supra, at 285, “is to be liberally construed for the benefit of those who left private life to serve their country . . . .” So construed, we conclude that Congress intended a reemployed veteran, who, upon returning from military service, satisfactorily completes his interrupted training, to enjoy the seniority status which he would have acquired by virtue of continued employment but for his absence in military service. This requirement is met if, as a matter of foresight, it was reasonably certain that advancement would have occurred, and if, as a matter of hindsight, it did in fact occur.

This does not mean that under §§ 9 (c) (1) and 9 (c) (2) the veteran, upon returning from service, must be considered for promotion or seniority purposes as if he had continued to work on the job. A returning veteran cannot claim a promotion that depends solely upon satisfactory completion of a prerequisite period of employment training unless he first works that period. But upon satisfactorily completing that period, as petitioners did here, he can insist upon a seniority date reflecting the delay caused by military service. Any lesser protection, would deny him the benefit of the salutary provisions of §§ 9 (c)(1) and 9 (c) (2) of the Universal Military Training and Service Act. The judgments of the Court of Appeals are reversed and the cause remanded for proceedings in conformity with this opinion.

Reversed and remanded.

       Section 9 of the Universal Military Training and Service Act, 62 Stat. 614, as amended, 50 U. S. C. App. § 459, provides in relevant part as follows:
      “(b) In the case of any such person who, in order to perform such training and service, has left or leaves a position (other than a temporary position) in the employ of any employer and who (1) receives such certificate, and (2) makes application for reemployment within ninety days after he is relieved from such training and service or from hospitalization continuing after discharge for a period of not more than one year—
      “(B) if such position was in the employ of a private employer, such person shall—
      “(i) if still qualified to perform the duties of such position, be restored by such employer or his successor in interest to such position or to a position of like seniority, status, and pay; or
      “ (ii) if not qualified to perform the duties of such position by reason of disability sustained during such service but qualified to perform the duties of any other position in the employ of such employer or his successor in interest, be restored by such employer or his successor in interest to such other position the duties of which he is qualified to perform as will provide him like seniority, status, and pay, or the nearest approximation thereof consistent with the circumstances in his case,
      “unless the employer’s circumstances have so changed as to make it impossible or unreasonable to do so;
      “(c)(1) Any person who is restored to a position in accordance with the provisions of paragraph (A) or (B) of subsection (b) of this section shall be considered as having been on furlough or leave of absence during his period of training and service in the armed forces, shall be so restored without loss of seniority, shall be entitled to participate in insurance or other benefits offered by the employer pursuant to established rules and practices relating to employees on furlough or leave of absence in effect with the employer at the time such person was inducted into such forces, and shall not be discharged from such position without cause within one year after such restoration.
      “ (2) It is declared to be the sense of the Congress that any person who is restored to a position in accordance with the provisions of paragraph (A) or (B) of subsection (b) of this section should be so restored in such manner as to give him such status in his employment as he would have enjoyed if he had continued in such employment continuously from the time of his entering the armed forces until the time of his restoration to such employment.”

       Petitioners were represented by the United States Attorney, pursuant to the provisions of 50 U. S. C. App. § 459 (d). The Railway Employes’ Department, AFL-CIO, has filed in this Court a brief amicus curiae opposing petitioners’ claims.

       The opinion of the District Court is not reported.

         The agreement provides in pertinent part:
      “A helper who has been or who is later advanced to carman will retain seniority as helper. When he has completed a total of 1040 days of service as carman he shall be considered as a qualified carman. At the completion of the 1040 days of service he will make his choice in writing to acquire a seniority date as carman as of the ending date of the 1040 days of service as such and relinquish his seniority as helper. If he fails to do so he will return to status of helper and will not again be considered in the selection of men for advancement under this agreement. He may, however, at a later date be employed as a carman and acquire a seniority date as carman as of the date so employed but will automatically lose seniority as a helper.”

       The present § 9 (c) (1) is a reenactment of § 9 (c) (1) of the Selective Service Act of 1948, 62 Stat. 604, 614, as amended, 50 U. S. C. App. § 459, which had reenacted § 8 (c) of the Selective Training and Service Act of 1940.

       It is not absolutely clear that' there was such a stipulation in Diehl. The Court of Appeals in Tilton said: “The parties in their briefs here both refer to a stipulation in Diehl. We find no clear reference to a stipulation in the opinions of either the Third Circuit or the district court. Inasmuch, however, as the plaintiffs’ present counsel argued the Diehl case in the Supreme Court, we assume the existence of the stipulation.” 306 F. 2d, at 877, n. 8.

       These contingencies were present in Diehl but did not bar relief.

       The only discretion in the present case was that vested in the railroad and union to select from among the carmen helpers those to be upgraded. This discretion had been exercised in petitioners’ favor prior to their entry into military service.


source: Caselaw Access Project

license: Public Domain

text:
    BROOKS v. MISSOURI PACIFIC RAILROAD CO.
    No. 53.
    Argued January 7-8, 1964.
    Decided February 17, 1964.

      Philip B. Heymann argued the cause for petitioner. On the brief were Solicitor General Cox, Assistant Attorney General Douglas, Alan S. Rosenthal and Richard S. Salzman.

      Robert V. Light argued the cause for respondent. With him on the brief were Herschel H. Friday and W. J. Smith.

      Clarence M. Mulholland, Edward J. Hickey, Jr. and Richard R. Lyman filed a brief for the Railway Employes’ Department, AFL-CIO, as amicus curiae, urging affirmance.
   Mr. Justice Goldberg

delivered the opinion of the Court.

This case differs only slightly from Tilton v. Missouri Pac. R. Co. decided today. Ante, at 169. Petitioner here was hired by the railroad on July 5, 1951, to serve as an apprentice machinist in Monroe, Louisiana. After completing seven months of apprenticeship, he was drafted into military service. He was honorably discharged on November 7, 1953, and immediately returned to work as an apprentice in Monroe. On April 29, 1954, petitioner was laid off because of the termination of the apprenticeship program at Monroe. On July 6, 1954, he resumed his apprenticeship with the railroad in St. Louis, Missouri. On July 25, 1955, at his request and with the railroad’s approval, petitioner was transferred to the railroad’s shops in North Little Rock, Arkansas, where he completed his apprenticeship on January 23, 1958. He was immediately employed at the North Little Rock shops as a journeyman machinist and assigned a seniority rating as of that date and location.

Petitioner sought a North Little Rock seniority date of November 3, 1955. He claimed that but for his military service, he would have completed his apprenticeship on that date and at that location. The railroad offered him that seniority date, but only at the Monroe location. Petitioner declined this offer on the ground that there were no employment opportunities at that location.

Petitioner brought suit in the District Court for the Eastern District of Arkansas. The court found, on the basis of adequate evidence, that “in practice . . . discretion had no play .... [Transition from the rank of apprentice to the rank of mechanic was automatic.” It also found that “in no event would plaintiff have completed his apprenticeship at Monroe.” But for his military service he “would have completed [his training] in 1955 . . . and ... as of that time he was employed in the North Little Rock shops and would have been hired there automatically as a journeyman mechanic. Had he been so employed at that time, his seniority point would have been fixed at North Little Rock under the actual practice of the railroad and the Union in connection with the initial employment of mechanics.” Accordingly, the District Court directed the railroad to grant him seniority as of November 3, 1955, at North Little Rock.

The Court of Appeals for the Eighth Circuit reversed, 308 F. 2d 531, on the basis of its earlier decision in Tilton v. Missouri Pac. R. Co., 306 F. 2d 870. The court held that the advancement from apprentice to journeyman lacked the predictable certainty required by the Tilton decision, because “[t]he balance between supply and demand of a particular category of workmen at a designated point at a future date cannot be foreseen or predicted with any degree of certainty.” 308 F. 2d, at 533. We granted certiorari, 372 U. S. 904.

We reverse the judgment of the Court of Appeals for the reasons stated in Tilton, ante, at 169. As we said in that case:

“In every veteran seniority case the possibility exists that work of the particular type might not have been available; that the veteran would not have worked satisfactorily during the period of his absence; that he might not have elected to accept the higher position; or that sickness might have prevented him from continuing his employment. In light of the purpose and history of this statute, however, we cannot assume that Congress intended possibilities of this sort to defeat the veteran’s seniority rights.” Ante, at 180-181.

We think that the foregoing analysis is dispositive of the problem here. The possibility that the “balance between supply and demand” would have prevented petitioner’s otherwise automatic promotion should not defeat his seniority claim. This possibility, like the possibilities discussed in Tilton, always exists.

We accept the conclusion of the District Court that but for petitioner’s military service, he probably would have achieved, by virtue of continued satisfactory employment, seniority status as a journeyman mechanic in North Little Rock on November 3, 1955. It follows, therefore, that he is entitled to this status under the relevant statutes. The judgment of the Court of Appeals is reversed and the cause remanded for proceedings in conformity with this opinion.

Reversed and remanded.

      The opinion of the District Court is not reported.


author: Per Curiam.

text:
    METROMEDIA, INC., et al. v. CITY OF PASADENA et al.
    No. 659.
    Decided February 17, 1964.

      Charles Seligson, William French Smith and Paul E. Iverson for appellants.

      Charles S. Rhyne for appellees.
   Per Curiam.

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


text:
    ARLAN’S DEPARTMENT STORE OF LOUISVILLE, INC., v. KENTUCKY.
    No. 665.
    Decided February 17, 1964.

      James E. Thornberry for appellant.

      Robert Matthews, Attorney General of Kentucky, and Robert L. Montague III and Holland N. McTyeire, Assistant Attorneys General, for appellee.
   Per Curiam.

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


text:
    BROOKS v. FLORIDA.
    No. 681.
    Decided February 17, 1964.
    Appellant pro se.

      James W. Kynes, Attorney General of Florida, and Reeves Bowen, Assistant Attorney General, for appellee.
   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:
    PERSINGER v. WASHINGTON.
    No. 745, Misc.
    Decided February 17, 1964.
    Appellant pro se.

      James E. Kennedy 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:
    ROGERS v. UNITED STATES.
    No. 412, Misc.
    Decided February 17, 1964.

      John D. Spellman for petitioner.

      Solicitor General Cox, Assistant Attorney General Miller and Beatrice Rosenberg for the United States.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. Upon consideration of the entire record, the judgment is vacated and the case is remanded to the United States Court of Appeals for the Ninth Circuit to reconsider the conviction on count nine in light of the Government’s confession of error and to determine whether the judgment of the District Court should be affirmed on the basis of the conviction under count seven.


text:
    KOTEK v. BENNETT, WARDEN.
    No. 908, Misc.
    Decided February 17, 1964.
   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:
    CITY OF NEW ORLEANS et al. v. BARTHE et al.
    No. 663.
    Decided February 17, 1964.

      Alvin J. Liska for appellants.

      Jack Greenberg, James M. Nabrit III, Ernest N. Morial and A. P. Tureaud for appellees.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, before judgment, pursuant to 28 U. S. C. § 1254 (1), to the United States Court of Appeals for the Fifth Circuit, the petition is granted. The judgment of the United States District Court for the Eastern District of Louisiana is affirmed. Turner v. City of Memphis, 369 U. S. 350; Watson v. City of Memphis, 373 U. S. 526.

Mr. Justice Black, Mr. Justice Harlan and Mr. Justice White are of the opinion that this case is not appealable to this Court under 28 U. S. C. § 1253 but is appealable to the Court of Appeals under 28 U. S. C. § 1291, and that this Court should dismiss the appeal for the Court of Appeals to consider and decide the appeal of this case now properly pending before it. See Bailey v. Patterson, 369 U. S. 31.

      See Griffin v. Prince Edward County Bd., 375 U. S. 391, and eases cited.


text:
    NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE et al. v. WEBB’S CITY, INC.
    No. 362.
    Decided February 17, 1964.

      Robert L. Carter, Fred G. Minnis and Richard Feder for petitioners.

      D. M. Patrick for respondent.
   Per Curiam.

Petitioners’ motion to advance is denied. On respondent’s suggestion of mootness, the judgment of the District Court of Appeals of Florida, Second District, is vacated and the cause remanded to that court for appropriate proceedings to effectuate respondent’s representation that the injunction below will be set aside, without prejudice to the right of petitioner to move to vacate today’s order in the event the injunction is not promptly vacated by the trial court.


text:
    COX v. KANSAS.
    No. 453, Misc.
    Decided February 17, 1964.
    Petitioner pro se.

      William M. Ferguson, Attorney General of Kansas, for respondent.
   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 Supreme Court of Kansas for further consideration in light of Douglas v. California, 372 U. S. 353, and Daegele v. Kansas, 375 U. S. 1.


author: Mr. Justice Douglas

text:
    UNITED STATES v. MERZ et al.
    No. 65.
    Argued January 13-14, 1964.
    Decided February 24, 1964.

      Roger P. Marquis argued the cause for the United States in No. 65. With him on the brief were Solicitor General Cox and Raymond N. Zagone.

      Denver W. Meacham argued the cause for respondents in No. 65. With him on the brief was William J. Holloway, Jr.

      Forrest L. Champion, Jr. argued the cause for petitioners in No. 79. With him on the briefs were W. Low-rey Stone, Lowrey S. Stone and Jesse G. Bowles.

      Harold S. Harrison argued the cause for the United States in No. 79. On the brief were Solicitor General Cox, Roger P. Marquis and Hugh Nugent.

      Together with No. 79, 2,872.88 Acres of Land et al. v. United States, on certiorari to the United States Court of Appeals for the Fifth Circuit, argued January 14, 1964.

   Mr. Justice Douglas

delivered the opinion of the Court.

These cases present questions concerning the standards governing the preparation and review of reports of commissions appointed by district courts under Rule 71A (h) of the Federal Rules of Civil Procedure to determine the issue of just compensation in eminent domain proceedings. Some of the property interests taken are fee interests and some are flowage easements, road easements, and clearance easements.

In No. 79 the District Court instructed the Commissioners on the standards of “just compensation/’ the factors that could be considered in determining it, the weight to be given the opinion of competent experts, the burden of proof, the conduct of the hearing to be held, and the propriety of viewing the lands in question. And they were instructed to file a written report “setting forth separately your findings of fact and conclusions of law and the amount of just compensation to which you think each property owner or claimant is entitled.”

In No. 65 the District Court gave no instructions to the Commissioners, so far as the record shows.

The hearing in each case was transcribed by a reporter. In each, both the landowners and the Government produced witnesses. In No. 65 the effect of clearance easements on agricultural uses and on mineral values was contested. In No. 79 the testimony was widely at variance on the value of the fees. Severance damages were also hotly contested. The value of improvements was also at issue as respects one property.

In No. 65 the Commission filed a report in which it listed each tract, following which it added a dollar figure for “Damages Assessed.” The Government objected to the adequacy of the report, as a result of which a supplemental one was filed which described in greater detail the clearance easements taken and stated that the highest and best use of the land was for general agricultural purposes. The supplemental report added that: (1) the United States was entitled to take the property and the landowners were entitled to just compensation; (2) just compensation was to be determined by subtracting the value of the landowners’ interests immediately after the taking from their value immediately before the taking; (3) the use to which the Government would put the area taken by the clearance easements was not an issue in the case; and (4) certain evidence pertaining to a tract taken in fee simple was stricken, and the Government’s motion to strike the testimony of one witness for the landowners was overruled.

In No. 79 three reports, one covering each landowner, were filed. Each report contained capsule résumés of all testimony heard, and, as findings of fact, set forth a description of the interests taken, the lands’ highest and best use, the acreage remaining after the taking and the amount of severance damage to it, the value of the fees taken and of each easement, and the total awards. Each report also stated that the United States had the right to take the land and that the landowners were entitled to just compensation, including severance damages. One report stated that a government objection to certain evidence had been overruled. The first report, in addition to placing a lump sum value on the fee interest taken, allowed no severance damage for the “home place,” four miles away, and yet granted $15,785 severance damages to other portions of the remaining tract without explication and in spite of the fact that the landowner’s expert fixed severance damages, apart from the “home place,” at $12,435. In the second report the landowner’s expert witness valued the entire tract at $52,500, the land taken at $36,125, and improvements at $12,700. The Government’s experts did not value improvements separately but assessed the fee interest taken at $34,000. The Commission, without any findings concerning improvements, awarded $52,950 — a sum in excess of the valuation placed on the full 400 acres by the landowner’s expert — as compensation for taking about 330 acres. And it awarded $3,500 for severance damages though the highest estimate was $1,275. The third report valued lands at $105,080 while the landowner’s own expert valued them at $93,693. The Commission also awarded severance damages without any indication as to the basis for them.

In both No. 65 and No. 79, the District Courts adopted the Commissions’ reports, setting forth no additional or supplementary grounds of decision nor taking further evidence to resolve any of the objections tendered by the Government. In No. 65 the Court of Appeals affirmed, stating that, although there was a sharp conflict in the evidence as to the amount of the damages, the awards were well within the range of the conflicting testimony. 306 F. 2d 39, 42. In No. 79 the Court of Appeals remanded for resubmission to the Commissioners, saying that the reports did not indicate which evidence the Commission credited and which it discredited, the degree to which the awards were based on the testimony of comparable sales, whether the sales were in fact comparable, and to whait extent the awards depended on the opinions of nonexpert witnesses. 310 F. 2d 775, 777, 779. The cases are here on writs of certiorari. 372 U. S. 974, 975.

The use of a commission to resolve the issue of just compensation is justified by the facility with which commissioners may inspect the property and a likelihood that uniformity of awards may be realized expeditiously. At the same time, there is danger that commissioners, unlike juries, may use their own expertise and not act as a deliberative body applying constitutional standards. A jury, until it retires, sits under the direct supervision of the judge, who rules on the admissibility of evidence, who sees that witnesses are properly qualified as experts, and who polices the entire hearing, keeping it within bounds. Then in due course the judge instructs the jury on the law, answering any inquiries its members may have on the law. The jury is under surveillance from start to finish and subject to judicial control. Hence its general verdict that the land is worth so many dollars is not overturned for lack of particularized findings.

The judge who uses commissioners, however, establishes a tribunal that may become free-wheeling, taking the law from itself, unless subject to close supervision. The first responsibility of the District Court, apart from the selection of responsible commissioners, is careful instruction of them on the law. That was done in one of the present cases. But the instructions should explain with some particularity the qualifications of expert witnesses, the weight to be given other opinion evidence, competent evidence of value, the best evidence of value, illustrative examples of severance damages, and the like. The commissioners should be instructed as to the manner of the hearing and the method of conducting it, of the right to view the property, and of the limited purpose of viewing. They should be instructed on the kind of evidence that is inadmissible and the manner of ruling on it.

The commissioners should also be instructed as to the kind of report to be filed. Since by Rule 71A (h) the report has the effect of a master’s findings of fact under Rule 53 (e)(2), the commission should be instructed as to what kind of findings should be included. Conclusory findings are alone not sufficient, for the commission’s findings shall be accepted by the court “unless clearly erroneous” ; and conclusory findings as made in these cases are normally not reviewable by that standard, even when the District Court reads the record, for it will have no way of knowing what path the commissioners took through the maze of conflicting evidence. See United States v. Lewis, 308 F. 2d 453, 458. The commissioners need not make detailed findings such as judges do who try a case without a jury. Commissioners, we assume, will normally be laymen, inexperienced in the law. But laymen can be instructed to reveal the reasoning they use in deciding on a particular award, what standard they try to follow, which line of testimony they adopt, what measure of severance damages they use, and so on. We do not say that every contested issue raised on the record before the commission must be resolved by a separate finding of fact. We do not say that there must be an array of findings of subsidiary facts to demonstrate that the ultimate finding of value is soundly and legally based. The path followed by the commissioners in reaching the amount of the award can, however, be distinctly marked. Such a requirement is within the competence of laymen; and laymen, like judges, will give more careful consideration to the problem if they are required to state not only the end result of their inquiry, but the process by which they reached it.

Moreover, the litigants have a responsibility to assist the process by specifying their objections to instructions, by offering alternate ones, and by making their timely objections to the report in specific, rather than in generalized form, as required by equity practice. See Sheffield & Birmingham R. Co. v. Gordon, 151 U. S. 285, 290, 291.

If those procedures are followed and the District Court adopts the report, as it may under Rule 53 (e)(2), the Court of Appeals will have some guidelines to help it determine whether the report is “clearly erroneous” within the meaning of Rule 53 (e)(2). If the use of those guidelines by the District Court leaves it in doubt, there are alternatives. It may “modify” the report on the basis of the record made before the commissioners, or it “may reject it in whole or in part or may receive further evidence or may recommit it with instructions” — all as provided in Rule 53 (e)(2). We think the District Court in each of these cases should have the opportunity under Rule 53 (e) (2) to make its decision afresh, in light of this opinion. We write on a clean slate against a background of a contrariety of views among the circuits. The reports in each of these cases leave much to be desired, measured by the standards we have suggested. None of the reports should have been adopted without more by the District Court. On remand, its informed discretion will be used to determine whether the matters should be resubmitted in whole or in part to the respective commissioners or whether, in light of the exigencies of the particular case, the court should itself resolve the disputes on the existing records, or on those records as supplemented by further evidence.

The judgment in No. 65 is reversed and the judgments in No. 79 are modified and each is remanded to the District Court for proceedings in conformity with this opinion.

It is so ordered.

       Rule 71A (h) provides:
      "(h) Trial.
      “If the action involves the exercise of the power of eminent domain under the law of the United States, any tribunal specially constituted by an Act of Congress governing the case for the trial of the issue of just compensation shall be the tribunal for the determination of that issue; but if there is no such specially constituted tribunal any party may have a trial by jury of the issue of just compensation by filing a demand therefor within the time allowed for answer or within such further time as the court may fix, unless the court in its discretion orders that, because of the character, location, or quantity of the property to be condemned, or for other reasons in the interest of justice, the issue of compensation shall be determined by a commission of three persons appointed by it. If a commission is appointed it shall have the powers of a master provided in subdivision (c) of Rule 53 and proceedings before it shall be governed by the provisions of paragraphs (1) and (2) of subdivision (d) of Rule 53. Its action and report shall be determined by a majority and its findings and report shall have the effect, and be dealt with by the court in accordance with the practice, prescribed in paragraph (2) of subdivision (e) of Rule 53. Trial of all issues shall otherwise be by the court.”
      Rule 53 provides in relevant part:
      “(e) Report.
      “ (2) In Non-Jury Actions. In an action to be tried without a jury the court shall accept the master’s findings of fact unless clearly erroneous. Within 10 days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice as prescribed in Rule 6 (d). The court after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions.”
      As to the history of Rule 71A (h) see 7 Moore, Federal Practice (2d ed. 1955), pp. 2709-2712; Nealy, Rule 71A (h) in Federal Condemnation Proceedings, 23 Fed. Bar Jour. 45 (1963); H. R. Rep. No. 739, 82d Cong., 1st Sess.; S. Rep. No. 502, 82d Cong., 1st Sess.; S. Rep. No. 112, 83d Cong., 1st Sess.; Preliminary Draft of Proposed Rule to Govern Condemnation Cases, Advisory Committee on Rules for Civil Procedure, June 1947.
      For the Rule in operation see Annual Report, Judicial Conference of the United States, 1961, pp. 17, 106, 254; Annual Report, Judicial Conference of the United States, 1962, pp. 30, 212-214; H. R. Rep. No. 1467, 86th Cong., 2d Sess., p. 11.

       No question is presented concerning the right to jury trial notwithstanding Rule 71A (h). While the Government asked for a jury trial in both eases, the question was not preserved nor brought here.

       See Burlington Truck Lines, Inc., v. United, States, 371 U. S. 156, 167-168; United States v. Forness, 125 F. 2d 928, 942-943; United States v. Lewis, 308 F. 2d 453, 456.

         The Hague Convention of October 18, 1907, by Article 79 provided that an arbitration award “must give the reasons on which it is based.” Chief Justice Hughes — then Secretary of State — said in a ease involving that provision: it “does not mean that the statement of reasons must be cast in any artificial form, much less that the reasons given should be those which the defeated party would recognize as adequate.” The Secretary of State to President Harding, Jan. 11,1923, II Foreign Relations of the United States, 1923, pp. 617, 620.

       See United States v. 44 Acres of Land, 234 F. 2d 410, 414; United States v. Twin City Power Co., 248 F. 2d 108, 112; United States v. Certain Interests in Property, 296 F. 2d 264, 268; United States v. Carroll, 304 F. 2d 300, 303-304.

       See United States v. Carroll, supra, 303-304.


text:
    DIAMOND v. LOUISIANA.
    No. 100.
    Argued February 20, 1964.
    Decided February 24, 1964.

      James M. Nabrit III argued the cause for petitioner. With him on the brief were Jack Greenberg, Wiley A. Branton and Johnnie A. Jones.

      Ralph L. Roy argued the cause for respondent. With him on the brief was Jack P. F. Gremillion, Attorney General of Louisiana.
   Per Curiam.

The writ of certiorari is dismissed as improvidently granted.


text:
    NEILL et al. v. COOK et al.
    No. 691.
    Decided February 24, 1964.

      A. B. Culbertson for appellants.

      Joe A. Moss 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 writ of certiorari, certiorari is denied.


text:
    DOUGHTY v. MAXWELL, WARDEN.
    No. 422, Misc.
    Decided February 24, 1964.
    Petitioner pro se.

      William B. Saxbe, Attorney General of Ohio, and William C. Baird, Assistant Attorney General, for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is reversed. Carnley v. Cochran, 369 U. S. 506, Gideon v. Wainwright, 372 U. S. 335.


author: Per Curiam. Mr. Justice Clark,

text:
    WOLFSOHN, EXECUTRIX, v. HANKIN et al.
    No. 680.
    Decided February 24, 1964.

      Fred I. Simon for petitioner.

      Gregory Hankin, pro se, and John V. Long for respondent Hankin.
   Per Curiam.

The petition for writ of certiorari is granted and the judgment is reversed. Harris Truck Lines, Inc., v. Cherry Meat Packers, Inc., 371 U. S. 215; Thompson v. Immigration and Naturalization Service, 375 U. S. 384.

Mr. Justice Clark,

whom

Mr. Justice Harlan, Mr. Justice Stewart and Mr. Justice White join, dissenting.

I have concluded that Harris Truck Lines v. Cherry Meat Packers, 371 U. S. 215 (1962), should be confined to its peculiar facts, i. e., a finding of “excusable neglect” under Rule 73 (a) of the Federal Rules of Civil Procedure. I say this, although I joined Harris, because the Court has used Harris to spawn the present hopeless confusion which I never contemplated at the time of its decision. Harris was the authority upon which the Court rested Thompson v. Immigration and Naturalization Service, 375 U. S. 384 (1964), despite the fact that Thompson involved Rules 52 (b) and 59 (b) and (e) with their specific requirements that the motion must be made or served not later than 10 days after the entry of judgment. The Court brushed aside these express and unambiguous mandates of Congress with the assertion that Thompson “fits squarely within the letter and spirit of Harris.” 375 U. S. 384, 387. And now comes a third case, involving the same Rule 59 (b), which further compounds the subversion of the rules. It appears clear to me that through Harris this Court has given trial judges the de facto power to grant extensions of time, directly contra to the definite requirements of Rules 52 (b) and 59 and the command of Rule 6 (b) that the court “may not extend the time for taking any action under rules ... 52 (b), 59 (b), (d) and (e) . . . I therefore respectfully dissent.


author: Mr. Justice Brennan

text:
    FEDERAL POWER COMMISSION v. SOUTHERN CALIFORNIA EDISON CO. et al.
    No. 71.
    Argued January 14, 1964.
    Decided March 2, 1964.

      Ralph S. Spritzer argued the cause for petitioner in No. 71. With him on the briefs were Solicitor General Cox, Frank Goodman, Richard A. Solomon, Howard E. Wahrenbrock, Thomas M. Debevoise and Peter H. Schiff.

      John W. Cragun argued the cause for petitioners in No. 73. With him on the brief were Reuben Goldberg and Angelo A. Iadarola.

      Boris H. Lakusta and John R. Bury argued the cause for respondent Southern California Edison Co. With them on the brief were Rollin E. Woodbury and Harry W. Sturges, Jr. Mary Moran Pajalich argued the cause for respondent Public Utilities Commission of California. With her on the brief was J. Thomason Phelps.

      Northcutt Ely and C. Emerson Duncan II filed a brief for the American Public Power Association, as amicus curiae, urging reversal.

      Austin L. Roberts, Jr. filed a brief for the National Association of Railroad and Utilities Commissioners, as amicus curiae, urging affirmance.

      Together with No. 73, City of Colton v. Southern California Edison Co. et al., also on certiorari to the same court.

   Mr. Justice Brennan

delivered the opinion of the Court.

Petitioner City of Colton, California (Colton), purchases its entire requirements of electric power from respondent Southern California Edison Company (Edison), a California electric utility company which operates in central and southern California and sells energy only to customers located there. Colton applies some of the power purchased to municipal uses, but resells the bulk of it to thousands of residential, commercial, and industrial customers in Colton and its environs. Respondent Public Utilities Commission of California (PUC) had for some years exercised jurisdiction over the Edison-Colton sale, but petitioner Federal Power Commission (FPC), on Colton’s petition filed in 1958, asserted jurisdiction under § 201 (b) of the Federal Power Act which extends federal regulatory power to the “sale of electric energy at wholesale in interstate commerce.” 49 Stat. 838, 847, 16 U. S. C. §§ 791a, 824-824L. The Court of Appeals for the Ninth Circuit set aside the FPC order. 310 F. 2d 784.

Some of the energy which Edison markets in California originates in Nevada and Arizona. Edison has a contract with the Secretary of the Interior under which, as agent for the United States, it generates energy at the Hoover power plants located in Nevada. This contract allocates to Edison 7% of the total firm generating capacity of Hoover Dam. Edison is also a party to a 1945 contract with the United States and the Metropolitan Water District of Southern California under which it is entitled to a portion of the unused firm energy allocated to the Water District from Hoover Dam. Payment for this energy is made to the United States for the credit of the Water District. Also, Hoover Dam, Davis Dam in Arizona, and Parker Dam in California are interconnected by a transmission line from which Edison has drawn energy by agreement with the Water District.

The FPC found, on the extensive record made before a Hearing Examiner, that out-of-state energy from Hoover Dam was included in the energy delivered by Edison to Colton, and ruled that the “sale to Colton is a sale of electric energy at wholesale in interstate commerce subject to Sections 201, 205 and 206 of the Federal Power Act.” 26 F. P. C. 223, 231

The Court of Appeals did not pass upon the question whether the finding that out-of-state energy reached Col-ton has support in the record. The court assumed that the finding had such support, but held nevertheless that § 201 (b) did not grant jurisdiction over the rates to the FPC. It ruled that the concluding words of § 201 (a)— “such Federal regulation, .however, [is] to extend only to those matters which are not subject to regulation by the States” — confined FPC jurisdiction to those interstate wholesales constitutionally beyond the power of state regulation by force of the Commerce Clause, Art. I, § 8, of the Constitution. Accordingly, it held that the FPC had no jurisdiction because PUC regulation of the Edison-Colton sale was permissible under the Commerce Clause. Because of the importance of the question in the administration of the Federal Power Act we granted the separate petitions for certiorari of the FPC and Col-ton. 372 U. S. 958. We reverse. We hold that § 201 (b) grants the FPC jurisdiction of all sales of electric energy at wholesale in interstate commerce not expressly exempted by the Act itself, and that the FPC properly asserted jurisdiction of the Edison-Colton sale.

The view of the Court of Appeals was that the limiting language of § 201 (a), read together with the jurisdictional grant in § 201 (b), meant that the FPC could not assert its jurisdiction over a sale which the Commerce Clause allowed a State to regulate. Such a determination of the permissibility of state regulation would require, the Court of Appeals said, an analysis of the impact of state regulation of the sale upon the national interest in commerce. The court held that such an analysis here compelled the conclusion that the FPC lacked jurisdiction, because state regulation of the Edison-Colton sale would not prejudice the interests of any other State. This conclusion was rested upon the view that the interests of Arizona and Nevada, the only States other than California which might claim to be concerned with the Edison-Colton sale, were already given federal protection by the Secretary of the Interior’s control of the initial sales of Hoover and Davis energy. Since the -first sale was subject to federal regulation, and since the energy subsequently sold by Edison to Colton for resale was to be consumed wholly within California, there was said to be a “complete lack of interest on the part of any other-state,” and the sale was therefore held to be subject to state regulation and exempt from FPC regulation. 310 F. 2d, at 789.

The Court of Appeals expressly rejected the argument that § 201 (b) incorporated a congressional decision against determining the FPC’s jurisdiction by such a case-by-case analysis, and in favor of employing a more mechanical test which would bring under federal regulation all sales of electric energy in interstate commerce at wholesale except those specifically'exempted, and would exclude all retail sales. In reviewing the court’s ruling on this question we do not write on a clean slate. In decisions over the past quarter century we have held that Congress, in enacting the Federal Power Act and the Natural Gas Act, apportioned regulatory power between state and federal governments according to a test which this Court had developed in a series of cases under the Commerce Clause. The Natural Gas Act grew out of the same judicial history as did the part of the Federal Power Act with which we are here concerned; and § 201 (b) of the Power Act has its counterpart in § 1 (b) of the Gas Act, 15 U. S. C. § 717 (b), which became law three years later in 1938.

The test adopted by Congress was developed in a line of decisions beginning with Public Utilities Comm’n v. London, 249 U. S. 236, and Pennsylvania Gas Co. v. Public Service Comm’n, 252 U. S. 23. In those cases this Court held that the Commerce Clause does not prohibit a State from regulating the sale of gas directly to consumers even though the gas be drawn from interstate mains. Missouri v. Kansas Gas Co., 265 U. S. 298, 309, sketched in the other side of the picture by holding that a State is prohibited from regulating the rate at which gas from out-of-state is sold to independent distributing companies for resale to local consumers. The last decision in this line, and the one which directly led to congressional intervention, was Public Utilities Comm’n v. Attleboro Steam & Elec. Co., 273 U. S. 83. There the Public Utilities Commission of Rhode Island asserted jurisdiction over the rates at which a Rhode Island company sold energy generated at its Rhode Island plant to a Massachusetts company, which took delivery at the state line for resale to the City of Attleboro. The Court held that Kansas Gas, supra, controlled, that the case did not involve “a regulation of the rates charged to local consumers,” and that since the sale was of concern to both Rhode Island and Massachusetts it was “national in character.” Consequently, “if such regulation is required it can only be attained by the exercise of the power vested in Congress.” 273 U. S., at 89-90.

Congress undertook federal regulation through the Federal Power Act in 1935 and the Natural Gas Act in 1938. The premise was that constitutional limitations upon state regulatory power made federal regulation essential if major aspects of interstate transmission and sale were not to go unregulated. Attleboro, with the other cases cited, figured prominently .in the debates and congressional reports. In Illinois Natural Gas Co. v. Central Illinois Public Service Co., 314 U. S. 498, we were first required to determine the scope of the federal power which Congress had asserted to meet the problem revealed by Attleboro and the other cases. The specific question in that case was whether a company selling interstate gas at wholesale to distributors for resale in a single State could be required by that State’s regulatory commission to extend its facilities and connect them with those of a local distributor, or whether such extensions were exclusively a matter for the FPC. The Court noted that prior to the Natural Gas Act there had been another line of cases which adopted a more flexible approach to state power under the Commerce Clause; these cases had been “less concerned to find a point in time and space where the interstate commerce in gas ends and intrastate commerce begins, and [have] looked to the nature of the state regulation involved, the objective of the state, and the effect of the regulation upon the national interest in the commerce.” 314 U. S., at 505. But the Court held that Congress, rather than adopting this flexible approach, which was applied by the Court of Appeals in the instant case, “undertook to regulate . . . without the necessity, where Congress has not acted, of drawing the precise line between state and federal power by the litigation of particular cases.” Id., at 506-507. What Congress did was to adopt the test developed in the Attleboro line which denied state power to regulate a sale “at wholesale to local distributing companies” and allowed state regulation of a sale at “local retail rates to ultimate consumers.” 314 U. S., at 504.

This conclusion has been consistently reaffirmed in subsequent cases. In Panhandle Eastern Pipe Line Co. v. Public Service Comm’n, 332 U. S. 507, which considered the reach of § 1 (b) of the Natural Gas Act, the Court said that “the line of the statute was thus clear and complete. It cut sharply and cleanly between sales for resale and direct sales for consumptive uses. No exceptions were made in either category for particular uses, quantities or otherwise.” 332 U. S., at 517. In United States v. Public Utilities Comm’n of California, 345 U. S. 295, the Court said that “Congress interpreted that case [Attleboro] as prohibiting state control of wholesale rates in interstate commerce for resale, and so armed the Federal Power Commission with precisely that power,” 345 U. S., at 308, and further that “Part II [of the Power Act] is a direct result of Attleboro. They are to be read together. The latter left no power in the states to regulate licensees’ sales for resale in interstate commerce, while the former established federal jurisdiction over such sales.” 345 U. S., at 311.

Plainly, the Court of Appeals’ reading of the § 201 (a) proviso as requiring an appraisal in each case of the impact of the particular sale, is inconsistent with these decisions. Section 201 (b) embodies a clear grant of power, and we have held that § 201 (a) was merely a “policy declaration ... of great generality. It cannot nullify a clear and specific grant of jurisdiction, even if the particular grant seems inconsistent with the broadly expressed purpose.” Connecticut Light & Power Co. v. Federal Power Comm’n, 324 U. S., at 527. We reiterated this view in United States v. Public Utilities Comm’n, supra, 345 U. S., at 311, where we also said, “to conceive of it [§ 201 (a)] now as a bench mark of the Commission’s power, or an affirmation of state authority over any interstate sales for resale, would be to speculate about a congressional purpose for which there is no support.” In short, our decisions have squarely rejected the view of the Court of Appeals that the scope of FPC jurisdiction over interstate sales of gas or electricity at wholesale is to be determined by a case-by-case analysis of the impact of state regulation upon the national interest. Rather, Congress meant to draw a bright line easily ascertained, between state and federal jurisdiction, making unnecessary such case-by-case analysis. This was done in the Power Act by making FPC jurisdiction plenary and extending it to all wholesale sales in interstate commerce except those which Congress has made explicitly subject to regulation by the States. There is no such exception covering the Edison-Colton sale.

The PUC and Edison would alternatively find a congressional exemption in the asserted fact that Congress has exempted from FPC regulation all sales of energy generated at Hoover Dam. Section 6 of the Boulder Canyon Project Act, 45 Stat. 1061, 43 U. S. C. § 617e, grants the Secretary of the Interior “control of rates and service in the absence of State regulation or interstate agreement” and provides that “he shall also conform with other provisions of the Federal Water Power Act and of the rules and regulations of the Federal Power Commission, which have been devised or which may be hereafter devised, for the protection of the investor and consumer.” The FPC reversed the Hearing Examiner’s ruling that § 6 was an exclusive grant to the Secretary of regulatory power over Hoover energy, and held that “what authority to regulate rates that is here granted to the Secretary of the Interior is authority that would be subject to the later enactment of the Federal Power Act in 1935 containing a comprehensive scheme for the regulation of sales at wholesale in interstate commerce (Section 201 (b)).” 26 F. P. C., at 227. The Court of Appeals did not decide the question but assumed that it was properly determined in favor of FPC and Colton. 310 F. 2d, at 786, n. 2.

We think that the reasoning underlying our decisions in United States v. Public Utilities Comm’n, supra, and Pennsylvania Water A Power Co. v. Federal Power Comm’n, 343 U. S. 414, is directly applicable here, and requires a decision upholding FPC jurisdiction. Those cases involved the question whether FPC jurisdiction under § 201 (b) was precluded by a provision of the 1920 Water Power Act which is similar to § 6. The Water Power Act became Part I of the Federal Power Act when Part II was enacted in 1935. Section 20 provided that the rates and services in connection with sales of energy generated at hydroelectric projects licensed under that Act were to be regulated by the FPC whenever “any of the States directly concerned has not provided a commission or other authority to enforce the requirements of this section within such State ... or such States are unable to agree through their properly constituted authorities on the services ... or on the rates . . . .” In United States v. Public Utilities Comm’n, supra, the PUC asserted jurisdiction over rates of a company licensed under Part I of the Federal Power Act. The FPC ordered the licensee to show cause why the rates were not subject to exclusive federal jurisdiction. The PUC argued that § 201 (b) was inapplicable, relying upon the concluding words of § 201 (a), and contending that since § 20 contained an affirmative grant of power to the States, FPC regulation was precluded. This Court held that there is no evidence that Congress intended to give the states what was essentially national power, for that question was not determined until Attleboro, and:

“The sweep of the statute [201 (b) ] is wholly inconsistent with any asserted state power as fixed by § 20 of the 1920 Act. We have examined the legislative history [of § 201 (b)]; its purport is quite clear. . . . There is nothing to indicate that Congress’ conception of the states’ disability in 1935, or of the power it gave the Commission by Part II, did not include Part I electricity. In fact, the unqualified statements concerning Part II favor the opposite construction, for we find the Act explained time and again as empowering the agency with rate authority over interstate wholesale sales for resale; not once is this authority spoken of as one conditioned on the electricity concerned having been produced by steam generators or at nonlicensed dams.” 345 U. S., at 307-308.

In the Pennsylvania Water case the FPC asserted jurisdiction over the rates charged by a licensee to a Maryland distributor of electric power. In sustaining FPC jurisdiction we rejected the contention that because Pennsylvania Water was a licensee under Part I of the Federal Power Act, and therefore subject to regulation under that Part, its regulation under Part II was precluded. 343 U. S., at 418-419.

We think the power given the Secretary under § 6 of the Boulder Canyon Project Act is similar in scope to the power of the FPC under § 20 of the 1920 Water Power Act. Under the Water Power Act the principal function of the FPC, then composed of the Secretaries of War, Interior, and Agriculture, was the licensing, construction and operation of hydroelectric development projects. Its power to regulate rates was based upon the national power over navigable waters and public lands, and not upon power over interstate commerce. It was exercised only as an incident of the licensing power, and then only to fill a hiatus which might otherwise exist in the absence of state regulation. The legislation rests on the assumption that the FPC would regulate only in the absence of state regulation.

An analysis of § 6 of the Boulder Canyon Project Act compels the same conclusion. The parallel between the two sections is unmistakable. Licensing by the FPC for the construction of Hoover Dam was unnecessary because Congress itself had authorized the construction. Since general supervisory power was given to the Secretary rather than the Commission, § 6 of the Act gave him powers analogous to those given the FPC by § 20 of the Water Power Act. While the words of § 6 do not precisely track those of § 20, the history of § 6 belies the assertion that it contained an affirmative grant of power to the States. It merely assumed, contrary to Attleboro, a breadth of state regulatory power which made unnecessary all but intersticial federal regulation. Although § 6 did not become law until two years after Attleboro was decided, that section was in the legislation proposed two years earlier, and it does not appear from the legislative history of § 6 that the attention of Congress was ever directed to the significance of that decision upon the effectiveness of the section.

On the other hand, the legislative history of Part II of the Power Act demonstrates that Congress believed that Attleboro and the related cases compelled it to forego its assumption as to state regulation and displace it with comprehensive federal regulation. A proper concern for this objective requires the conclusion that Part II superseded and repealed any regulation under § 6 by the Secretary of the Interior or the States of interstate wholesales of electric energy subsequently made of Hoover power.

The judgment of the Court of Appeals is

Reversed.

       Colton presently purchases its requirements from Edison under a 10-year contract made in 1945 which continues in effect from month to month after the end of the term until terminated by either party by written notice. The contract was filed with the PUC, and it was in 1958, after PUC approved a second increase in the contract rates, that Colton requested FPC to institute an investigation to determine if the Edison-Colton sale was subject to federal jurisdiction. An investigation was made and a hearing ordered. The staff of FPC, Colton, PUC and Edison participated in the hearings which followed. The staff of FPC and Colton supported FPC jurisdiction but Edison and PUC opposed. The Hearing Examiner ordered the dismissal of Colton’s petition and the FPC reversed. Federal jurisdiction was found to have attached as of July 1, 1954. Edison was ordered to file the 1945 contract and to cease and desist from charging Colton in excess of the contract rates without FPC authorization. Edison was also required to account for sums in excess of those rates collected on and after July 1, 1954, and to establish a special reserve account for that excess with interest. 26 F. P. C. 223.

       Section 201 in pertinent part is as follows:
      “(a) It is hereby declared that . . . Federal regulation of . . . the sale of such energy at wholesale in interstate commerce is necessary in the public interest, such Federal regulation, however, to extend only to those matters which are not subject to regulation by the States.
      “(b) The provisions of this Part shall apply to . . . the sale of electric energy at wholesale in interstate commerce .... The Commission shall have jurisdiction over all facilities for such . . . sale of electric energy, but shall not have jurisdiction, except as specifically provided in this Part and the Part next following, over . . . facilities used in local distribution ....
      “(d) The term ‘sale of electric energy at wholesale’ when used in this Part means a sale of electric energy to any person for resale.
      “ (e) The term ‘public utility’ when used in this Part or in the Part next following means any person who owns or operates facilities subject to the jurisdiction of the Commission under this Part.”

       While Edison admits that it is a “public utility” within the meaning of § 201 (e) of the Federal Power Act by virtue of its ownership of two interstate transmission lines running from Hoover Dam to its Chino substation in California, its status as a public utility does not decide the question whether the FPC may assert jurisdiction over the rates of the Edison-Colton sale. Cf. Connecticut Light & Power Co. v. Federal Power Comm’n, 324 U. S. 515.

       FPC regulation of rates rests on §§ 205 (a) and 206 (a), 16 U. S. C. §§ 824d, 824e.

       The briefs of PUC and Edison argue that the FPC’s finding that some out-of-state energy is delivered by Edison to Colton is not supported by substantial evidence in the record. Among other findings, the FPC found: “On the basis of the record, electric energy generated at Hoover was sold to Colton during 596 hours out of 598 hours in the last six months of 1954, 1,338 hours out of 2,065 in 1955, 270 hours out of 1,954 in 1956, 199 hours out of 1,388 in 1957, and 1,115 hours out of 1,479 in 1958; and these deliveries included Davis energy during 341 hours in 1954, 746 hours in 1955 and 31 hours in 1956.” 26 F. P. C., at 231. Of course, under the Act “The finding of the Commission as to the facts, if supported by substantial evidence, shall be conclusive.” § 313 (b). We have said of Part II of the Power Act that “federal jurisdiction was to follow the flow of electric energy, an engineering and scientific, rather than a legalistic or governmental. test.’’ Connecticut Light & Power Co. v. Federal Power Comm’n, 324 U. S. 515, 529. (Emphasis supplied.) We have examined the proofs. They are in sharp conflict but we hold that the engineering and scientific evidence received by the Commission on the subject from the Commission's own experts afforded substantial evidence upon which to rest the findings which trace out-of-state energy to the City of Colton.
      The PUC also argues that any out-of-state energy was de minimis in amount and that FPC jurisdiction did not attach on that account. But that fact would be relevant only on the question whether Edison was a “public utility” over which FPC in its discretion should assume jurisdiction, Connecticut Light & Power Co. v. Federal Power Comm’n, supra, pp. 535-536. Here Edison is eoneededly a “public utility” and we agree with the FPC that in that circumstance the FPC has “no discretion to reject that jurisdiction.” 26 F. P. C., at 236.

       Section 201 (b) expressly excludes FPC jurisdiction “over facilities used in local distribution.” Edison and PUC raise in their briefs the question whether federal jurisdiction over the sale of electric energy by Edison to Colton is prevented by the “local distribution” proviso of § 201 (b). Whether facilities are used in local distribution — although a limitation on FPC jurisdiction and a legal standard that must be given effect in addition to the technological transmission test, Connecticut Light & Power Co. v. Federal Power Comm’n, supra, p. 531—involves a question of fact to be decided by the FPC as an original matter. The FPC found in this case that “there are facilities owned by Edison which it uses exclusively to effect the wholesale to Colton and not for local distribution. These include the City of Colton substation and portions of the 12 lev. Globe mills and Derby lines after service to the last customer at retail. . . . The fact that the 12 kv. lines . . . serve an industrial customer, several lighted highway signs, a residence and a railroad section house before they reach the transformers in the Colton City Substation does not transform them into local distribution lines even if this were relevant.” 26 F. P. C., at 232. The findings have ample support in the evidence and the conclusion may properly rest upon the specialized experience of the FPC in determining such questions.

       Section 1 (b) of the Natural Gas Act is:
      “The provisions of this Act shall apply to the transportation of natural gas in interstate commerce, to the sale in interstate commerce of natural gas for resale for ultimate public consumption for domestic, commercial, industrial, or any other use, and to riatural-gas companies engaged in such transportation or sale, but shall not apply to any other transportation or sale of natural gas or to the local distribution of natural gas or to the facilities used for such distribution or to the production or gathering of natural gas.” 52 Stat. 821 (1938), 15 U. S. C. §717 (b).

       See S. Rep. No. 621, 74th Cong., 1st Sess., pp. 17-54 (1935); H. R. Rep. No. 1318, 74th Cong., 1st Sess., pp. 7-8 (1935). The hearings before both the House and Senate Committees reflect the general consensus that under Attleboro and the earlier decisions, the Commerce Clause denied the States power over any wholesale transaction in interstate commerce. Hearings before the House Committee on Interstate and Foreign Commerce on H. R. 5423, 74th Cong., 1st Sess., pp. 96, 384, 402, 421-422, 435, 497-498, 518, 521-523, 1612, 1614, 1622-1623, 1629, 1639, 1642, 1656-1657, 1679, 2143, 2144, 2156 (1935); Hearings before the Senate Committee on Interstate Commerce on S. 1725, 74th Cong., 1st Sess., pp. 250-251, 760, 767, 768, 800-801 (1935). The general solicitor of the National Association of Railroad & Utilities Commissioners said during the House hearings: “That case [Attleboro] has been accepted by everybody as establishing . . . the fact that the State cannot regulate wholesale transactions, although it can regulate retail service and rate.” Hearings on H. R. 5423, supra, p. 1657. At the Senate hearings he said: “The second part of the bill [§ 201 (b)] provides for regulation by the Federal Government of wholesale transactions in electric power. Those are transactions which the United States Supreme Court has held are beyond the reach of the States under the Constitution. The States have long reguláted the rates charged by the local distributing companies to consumers; but they cannot reach the interstate producer supplying the distributing company.” Hearings on S. 1725, supra, pp. 756-757. “It therefore follows that if there is to be any regulation of the wholesale part of the electric and gas business which passes over State lines it must be supplied by the Federal Government.” Id., p. 768.

       In 1954 Congress amended the jurisdictional provision of the Natural Gas Act to exempt persons receiving natural gas within a State and transmitting or selling it for consumption solely within the same State. 68 Stat. 36, 15 U. S. C. § 717 (c). A proposal which would have similarly limited FPC jurisdiction in the electric power field died in Committee. See Hearings-before House Subcommittee of the Committee on Interstate and Foreign Commerce on H. R. 2972 and 2973, 80th Cong., 1st Sess.

       The Secretary of the Interior had then as he has now the duty to fix the rates at which he sells Hoover energy to enable the United States to recoup the costs of building the dam and associated facilities. Boulder Canyon Project Act, Dec. 21, 1928, c. 42, §§ 4 (b), 5, 45 Stat. 1057, 1059, 1060, 43 U. S. C. §§ 617c (b), 617d; Boulder Canyon Project Adjustment Act, July 19, 1940, c. 643, § 1, 54 Stat. 774, 43 U. S. C. § 618. Section 201 (f) of the Federal Power Act exempts the Secretary’s sale of energy from FPC jurisdiction but our concern in this case is not with the Secretary’s sales to Edison but with Edison’s resale to Colton.

       As originally introduced, the bill contained no reference to the regulation of resales of Hoover energy. Compare H. R. 6251, 69th Cong., 1st Sess. (1925), with H. R. 5773, 70th Cong., 1st Sess. (1927). The Secretary of the Federal Power Commission presented his views in letter form to the Senate Committee on Irrigation, and warned that “there is no requirement that any Federal agency shall, in absence of State regulation or of interstate agreement, have any jurisdiction to regulate rates, services, or security issues of lessees, whether the power developed be or be not transmitted in interstate commerce.” See Hearings before the Senate Committee on Irrigation and Reclamation on S. Res. No. 320, 69th Cong., 1st Sess., pt. 6, at 893 (1925).
      The present form of § 6 is generally conceded to be the result of this letter, and it is thus apparent that, far from being an affirmative grant of power to the States, that section only referred to state power as a means of defining the contingency upon which federal power would be asserted.

       There is no merit in the argument that the failure of Congress expressly to repeal this portion of § 6 when passing the Boulder Canyon Project Adjustment Act in 1940, 54 Stat. 774, as amended, 43 U. S. C. §§ 618-618p, and the Act of May 28, 1954, c. 241, 68 Stat. 143, evinces a congressional intention that the Secretary and not the FPC regulate wholesale rates. The 1940 Act modified the method by which the Secretary was to fix the rates at which he sells Boulder Canyon energy but had no bearing upon the regulation of subsequent sales. See H. R. Rep. No. 2328, 76th Cong., 3d Sess. (1940).


text:
    KREZNAR et al. v. UNITED STATES.
    No. 85.
    Decided March 2, 1964.

      Sidney Dickstein, David I. Shapiro and George Kauf-mann for petitioners.

      Solicitor General Cox, Acting Assistant Attorney General Douglas and Alan S. Rosenthal for the United States.
   Per Curiam.

The petition , for writ of certiorari is granted and the judgment is reversed. Greene v. United States, ante, p. 149.

Mr. Justice Harlan dissents for the reasons stated in his dissenting opinion in Greene v. United States, ante, p. 164.


text:
    LORD v. WINCHESTER STAR et al.
    No. 732.
    Decided March 2, 1964.
   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:
    HONEYWOOD et al. v. ROCKEFELLER, GOVERNOR OF NEW YORK, et al.
    No. 267.
    Decided March 2, 1964.

      Moses M. Falk for appellants.

      Louis J. Lefkowitz, Attorney General of New York, Irving Galt, Assistant Solicitor General, Sheldon Raab, Assistant Attorney General, and Irving D. Goodstein for appellees.
   Per Curiam.

The motion to affirm is granted and the judgment is affirmed. Wright v. Rockefeller, ante, p. 52.


author: Pee Curiam.

text:
    MARTIN, SECRETARY OF STATE OF TEXAS, et al. v. BUSH et al.
    No. 675.
    Decided March 2, 1964.

      Waggoner Carr, Attorney General of Texas, Albert P. Jones and Hawthorne Phillips, First Assistant Attorneys General, Mary K. Wall, Assistant Attorney General, Will D. Davis and Frank C. Erwin, Jr. for appellants.

      William B. Cassin and Thad T. Hutcheson for appellees.
   Pee Curiam.

The motion to affirm is granted and the judgment is affirmed on the authority of Wesberry v. Sanders, ante, p. 1, without prejudice to the right of the appellants to apply by April 1, 1964, to the District Court for further equitable relief in light of the present circumstances including the imminence of the forthcoming election and “the operation of the election machinery of Texas” noted by the District Court in its opinion. The stay heretofore granted by Mr. Justice Black is continued in effect pending timely application for the foregoing relief and final disposition thereof by the District Court.

Mr. Justice Clark joins this disposition, but upon the grounds stated in his separate opinion in Wesberry v. Sanders, ante, p. 18.

Mr. Justice Harlan and Mr. Justice Stewart would reverse the judgment below for the reasons stated in their dissenting opinions in Wesberry v. Sanders, ante, pp. 20, 50.

      224 F. Supp. 499, 513.


text:
    CITY OF SEATTLE et al. v. BEEZER et al.
    No. 677.
    Decided March 2, 1964.

      A. L. Newbould, Richard S. White, William A. Helsell, Robert L. McCarty and Charles F. Wheatley, Jr. for appellants.

      Alfred J. Schweppe for Beezer, and Clarence C. Dill, Joseph Volpe, Jr. and Bennett Boskey for Public Utility-District No. 1 of Pend Oreille County, Washington, appellees.

      Solicitor General Cox, Richard A. Solomon, Howard E. Wahrenbrock and David J. Bardin for the Federal Power Commission, as amicus curiae, in support of appellants.
   Per Curiam.

The motions to dismiss are granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari is granted and the judgment is reversed. City of Tacoma v. Taxpayers of Tacoma, 357 U. S. 320.