author: Mr. Justice Black Mr. Justice Harlan,

text:
    HARDIN, MAYOR OF TAZEWELL, et al. v. KENTUCKY UTILITIES CO.
    No. 40.
    Argued December 13, 1967.
    Decided January 16, 1968.

      William R. Stanifer argued the cause for petitioners in Nos. 40 and 50. With him on the brief for petitioners in No. 40 was Philip P. Ardery. Clyde Y. Cridlin was on the brief for petitioner in No. 50. Robert H. Marquis argued the cause for petitioner in No. 51. With him on the brief were Acting Solicitor General Spritzer, Richard A. Posner, Charles J. McCarthy and Thomas A. Pedersen.

      Malcolm Y. Marshall argued the cause for respondent in all three cases. With him on the brief were Squire R. Ogden and James S. Welch.

      Together with No. 50, Powell Valley Electric Cooperative v. Kentucky Utilities Co., and No. 51, Tennessee Valley Authority v. Kentucky Utilities Co., also on certiorari to the same court.

   Mr. Justice Black

delivered the opinion of the Court.

The question for decision in these cases is whether Congress has prohibited the Tennessee Valley Authority from competing in the sale of electricity with respondent, the Kentucky Utilities Company, in two small villages in Claiborne County, Tennessee, and in a narrow corridor between the two villages and the Tennessee-Kentucky state boundary 16 miles away. By § 15d of the Tennessee Valley Authority Act of 1933, as added by the 1959 amendments to that Act, Congress barred the TVA from expanding its sales outside “the area for which the Corporation [TVA] or its distributors were the primary source of power supply on July , 1957/’1 and our problem is therefore the narrow one of deciding whether these villages and the narrow corridor are part of an “area” for which TYA was the primary source of power on the crucial date. The difficulty lies in determining the location and extent of the “area” to which the statute refers. In June 1957, TVA supplied 62% of the power used in all of Claiborne County, and therefore if the entire county is an “area” within the meaning of the statute, TVA would have been the “primary” source of power, and its expansion into the two villages would be permissible. On the other hand, in the villages themselves, TVA supplied only 6% of the power in June 1957, while respondent supplied 94%; thus if the two villages either alone or with the corridor constitute an “area,” TVA would not have been the primary source of power, and it would be barred by § 15d from expanding into that area.

The question of statutory interpretation now before us arose in this way. TVA is the major supplier of electric power in Tennessee and in many adjoining areas- of Alabama, Mississippi, Georgia, Virginia, and Kentucky. Respondent, whose service area is centered in Kentucky, has long served customers in Tazewell and New Tazewell, the two villages within 16 miles of the Kentucky border in Claiborne County, Tennessee. The power lines of TVA distributors also crisscross Claiborne County, and TVA has therefore been- able to serve a small number of customers in the two villages, even though respondent was the predominant source of power. Because Kentucky Utilities’ retail rates for electricity in the two villages were approximately 2y2 times higher for typical consumers than the rates for TVA power, the value of residential and commercial properties served by TVA was substantially and uniformly higher than the value of similar properties served by respondent. This rate disparity created a seething discontent among residential and industrial consumers in the villages. Pointing out that they lived in the very heart of the TVA watershed and in immediate proximity to TVA’s large Norris Lake, these citizens contended that it was wholly unjust and inequitable to deny them the benefits and advantages of cheap TVA power. After complaints, planning, and consultations over a period of more than three years, the local governments engaged a contractor to build the facilities necessary to establish a municipal system linked to TVA’s cheap power. Kentucky Utilities’ customers immediately began to discontinue their service and become customers of the municipal system.

Kentucky Utilities then filed this suit against TVA, the mayors of the twb Tazewells, and the Powell Valley Electric Cooperative, a TVA distributor, charging them with conspiracy to destroy its Tazewell business and asking the court to enjoin TVA from supplying power to the new municipal system in alleged violation of § 15d. The District Court upheld the determination of the TVA Board of Directors that the two Tazewells were within TVA’s primary service “area” and dismissed the case, 237 F. Supp. 502 (1964), but the Court of Appeals reversed, holding that the two villages plus the corridor constituted an “area” and that TVA accordingly was barred from extending its service in the Tazewells. 375 F. 2d 403 (1966). We granted certiorari, 386 U. S. 980 (1967), to resolve this important question in the administration of the TVA Act. We reverse and agree with the District Court that the TVA Board properly determined the relevant service “area” to extend beyond the two Taze-wells and to include the entire county. TVA, as the primary power source within this area, could therefore properly make its low-cost power available to consumers in this entire county area including the two villages.

I.

Before discussing the merits, we shall briefly consider petitioners’ contention that the Kentucky Utilities Company lacks standing to challenge the legality of TVA’s activities. We agree with both the courts below that this contention is without merit. This Court has, it is true, repeatedly held that the economic injury which results from lawful competition cannot, in and of itself, ■confer standing on the injured business to question the legality of any aspect of its competitor’s operations. Railroad Co. v. Ellerman, 105 U. S. 166 (1882); Alabama Power Co. v. Ickes, 302 U. S. 464 (1938); Tennessee Power Co. v. TVA, 306 U. S. 118 (1939); Perkins v. Lukens Steel Co., 310 U. S. 113 (1940). But competitive injury provided no basis for standing in the above cases simply because the statutory and constitutional requirements that the plaintiff sought to enforce were in no way concerned with protecting against competitive injury. In contrast, it has been the rule, at least since the Chicago Junction Case, 264 U. S. 258 (1924), that when the particular statutory provision invoked does reflect a legislative purpose to protect a competitive interest, the injured competitor has standing to require compliance with that provision. See Alton R. Co. v. United States, 315 U. S. 15, 19 (1942); Chicago v. Atchison, T. & S. F. R. Co., 357 U. S. 77, 83 (1958).

Petitioners concede, as of course they must, that one of the primary purposes of the area limitations in § 15d of the Act was to protect private utilities from TYA competition. This is evident from the provision itself and is amply supported by its legislative history. The provision grew out of TVA’s efforts to find some way to meet the cost of new facilities without dependence upon annual appropriations from Congress. In 1955 TVA began to seek authority to issue bonds to finance these expenditures. Although TVA spokesmen assured Congress that the objective was not territorial expansion but only improvement of facilities in TVA’s existing service area, many members of Congress were apprehensive and thought that if congressional budgetary control was to be weakened, some substitute to prevent territorial expansion should be found. A series of bills to give TVA borrowing power failed to pass. Several bills were then introduced combining the grant of borrowing power with various provisions to prohibit territorial expansion, and one of these bills was eventually-enacted as the TYA amendments of 1959. Although discussions of the territorial limitation mentioned a number of policy reasons for the restriction, it is clear and undisputed that protection of private utilities from TVA competition was almost universally regarded as the primary objective of the limitation. Since respondent is thus in the class which § 15d is designed to protect, it has standing under familiar judicial principles to bring this suit, see Stark v. Wickard, 321 U. S. 288, 309 (1944); cf. United States v. ICC, 337 U. S. 426, 433-434 (1949), and no explicit statutory provision is necessary to confer standing.

II.

Basic to our consideration of the merits of these cases is an appraisal of the significance of the TVA Board’s determination that all of Claiborne County, including the two Tazewells, constituted a single “area” in which TYA is the primary source of power. Petitioners argue that the Court of Appeals gave no weight whatever to this determination and urge that the finding should instead have been treated like an administrative interpretation by an agency or executive officer, to be set aside only if it is not properly related to the purposes of the statute. The opinion of the Court of Appeals is not altogether clear in dealing with this question, however, and respondent has not attempted to argue here that the Court of Appeals could have decided the matter entirely on its own, without any consideration of the TVA Board’s finding. Rather, respondent appears to agree with petitioners that the determination of the TVA Board is entitled to acceptance unless it lies outside the range of permissible choices contemplated by the statute, and we think this is the proper rule. The initial determination as to the extent of the “area” under § 15d must be made by the TVA Board in every case, since TVA is required under the Act to make power available to public bodies and cooperatives within the permissible area. In making this determination as to the most appropriate boundaries for its service area, the TYA Board will normally evaluate the economic and engineering aspects of providing its service to the customers in question, especially in relation to the particular topography of the affected region. Given the innate and inevitable vagueness of the “area” concept and the complexity of the factors relevant to decision in this matter, we think it is more efficient, and thus more in line with the overall purposes of the Act, for the courts to take the TVA’s “area” determinations as their starting points and to set these determinations aside only when they lack reasonable support in relation to the statutory purpose of controlling, but not altogether prohibiting, territorial expansion. Cf. SEC v. New England Electric, 384 U. S. 176, 185 (1966); Bates & Guild Co. v. Payne, 194 U. S. 106, 109-110 (1904).

III.

Tested by this standard, we think the determination of the TVA Board with respect to Claiborne County should have been upheld by the court below. Neither the language of § 15d, its legislative history, nor any of the economic and technical circumstances of this particular locality suggest that the TVA Board’s determination here exceeded the outer boundaries of choice contemplated in the Act.

Certainly nothing in the language of § 15d (a) itself forecloses the TVA’s present decision. The second paragraph of that section reads:

“Nothing in this subsection shall prevent the Corporation or its distributors from, supplying electric power to any customer within any area in which the Corporation or its distributors had generally established electric service on July 1, 1957, and to which electric service was not being supplied from any other source on the effective date of this Act.”

In light of this provision, respondent argues that even within its “area,” TVA may not extend its services to new customers previously served by a private company. Literally, of course, this language does not establish such a rule. It simply states that when a customer is served by a private utility in this area of generally established service, an area perhaps broader than the “area” of primary service which is controlling under the first paragraph of § 15d (a), the Act may prevent TVA from supplying the customer; other parts of the subsection must be looked to for the actual prohibition. This literal reading, moreover, is the only' appropriate one in light of other provisions of the statute. The first paragraph of § 15d (a) authorizes TVA to provide power not only within its “area” but also within an additional region “extending not more than five miles around the periphery of such area.” This is followed by a proviso denying TVA the right to serve within this additional region any “municipality receiving electric service from another source on or after July 1, 1957.” Since the Act makes the existence of a private supplier an explicit bar to TVA expansion only within the additional region, we cannot read the statute as also making the existence of a private supplier, in and of itself, an automatic bar to expansion in the primary service “area.”

The parties have also called our attention to numerous incidents in the legislative history suggesting that Congress may have regarded the very villages involved in this case as either inside or outside of TVA’s service area. Petitioners note that maps placed before the congressional committees showed the Tazewells as within TVA’s primary service area. Respondent counters that one map submitted to the House Public Works Committee showed the Tazewells as within respondent’s service area. In addition, respondent notes that a “gentlemen’s agreement” between TVA and neighboring private utilities had placed the Tazewells within respondent’s area, and respondent refers to a number of statements indicating that various sponsors of the territorial limitations intended to enact the “gentlemen’s agreement” into law.

We do not find any of this information particularly helpful in resolving the question before us. The maps on which petitioners rely were large-scale representations of TYA’s entire multistate system, and they were submitted to various committees for general reference. Even if all these maps had placed the Tazewells in the same area, it would be artificial in the extreme to assume that Congress actually entertained any specific intention with respect to these small villages in one tiny portion of the county, the State and the map. With respect to the “gentlemen’s agreement,” it is undeniable that many members of Congress did hope to freeze completely the existing situation by enactment of the territorial limitation. Others, the majority of the Senate Public Works Committee in particular, undoubtedly sought to include language that would authorize adjustments and permit a certain amount of elasticity in the availability of TYA service. We think it is sufficient to note, without tracing all the changes in the wording of the territorial limitation, that the language of the Act in its final form is a compromise and that the views of those who sought the most restrictive wording cannot control interpretation of the compromise version.

Finally, we think that apart from the structure of the Act and its legislative history, the facts of the situation in Claiborne County, in Tennessee, and in Kentucky support rather than undercut the TVA Board’s determination. The parties place great stress on the question whether respondent’s service area should be characterized as a “peninsula” attached to its main region of service or as a mere “island” surrounded by TVA territory and therefore more properly subject to TVA intrusion. But we can attribute no controlling significance to such characterizations. The most isolated area of private service will necessarily be connected to the private company’s main area by at least one power fine such as the one present here, and the company may even, as here, serve scattered customers along the line — if indeed the region contains any customers to serve. At the same time a broad area served almost entirely by a private company and contiguous with its main service area may be crisscrossed by the lines of TVA distributors and TVA may even have scattered customers along these lines; the fact that the private company was thus surrounded by TVA might not under this statute justify TVA expansion into the “peninsula” or “island,” whatever it may be, served by private power. In the present cases respondent did serve a substantial number of customers in the corridor between the Tazewells and its main service area in Kentucky, but if a “peninsula,” it was at best a very narrow and tiny one in relation to the possible patterns of power distribution. TVA, on the other hand, served most of the rural areas in Claiborne County and had a substantial minority of the customers in the Tazewells themselves. Under these circumstances, the TVA Board could properly have concluded that the pattern of electric power distribution would be more sensible and efficient if TVA competed in the entire Tazewell municipal area as well as serving the relatively unprofitable rural customers, many of whom were rather close to respondent’s transmission line into the Tazewells. In addition, the Board could have considered the existence of its significant, though not primary, service in the Tazewells themselves as a compelling reason for including these villages in its “area,” since the factors supporting inclusion were in any event significant and since the great disparity of rates in the villages had resulted in significant economic dislocations.

Under all these circumstances we cannot say that the conclusion of the TYA Board in the present cases is incompatible with the “area” concept formulated in the Act. We therefore reverse the judgment of the Court of Appeals and affirm that of the District Court.

It is so ordered.

Mr. Justice Douglas and Mr. Justice Marshall took no part in the consideration or decision of these cases.

Mr. Justice Harlan,

dissenting.

These cases present a narrow question of statutory construction, upon which differing views might reasonably be entertained. I cannot, however, agree that the position now adopted by the Court will satisfactorily achieve the purposes evidently sought by Congress in 1959. I therefore respectfully dissent.

The scope of judicial review of administrative action is, of course, governed principally by the terms and purposes of the underlying statutory system. Compare generally 4 Davis, Administrative Law Treatise § 30.03 (1958); Jaffe, Judicial Review: Question of Law, 69 Harv. L. Rev. 239; Jaffe, Judicial Control of Administrative Action 546 et seq. (1965). The purposes of these statutory provisions are uncommonly plain. The Court acknowledges, as it must, that “it is clear and undisputed that protection of private utilities from TVA competition was almost universally regarded as the primary objective of the [service area] limitation.” Ante, at 7.

The provisions in question were expected to protect private utilities by “defin[ing]” and “limit [ing]” the “working arrangement that now exists with respect to” the Authority’s service area. S. Rep. No. 470, 86th Cong., 1st Sess., 8. They were thus intended to constrict the Authority’s discretion as to the expansion of its area of service. It is no disparagement of the Authority to recognize that an orderly system of law does not place the enforcement of a restraint upon discretion into the unfettered hands of the party sought to be restrained; surely, therefore, the scope of judicial review of proceedings involving such limitations should be measured generously.

The role of the courts should, in particular, be viewed hospitably where, as here, the question sought to be reviewed does not significantly engage the agency’s expertise. This is an instance “where the only or principal dispute relates to the meaning of the statutory term,” NLRB v. Marcus Trucking Co., 286 F. 2d 583, 591; it may, as Judge Friendly has noted, therefore appropriately be denominated a “question of law.” Ibid. It presents issues on which courts, and not the Authority, are relatively more expert. See 4 Davis, supra, at § 30.04. No doubt “economic and engineering aspects,” ante, at 9, including topography, may influence the Authority’s wish to expand its area of service, but such factors can hardly prescribe the terms or stringency of Congress’ prohibitions against expansion.

In light of these considerations, I am unable to accept this decision, the effect of which is to restrict severely the scope of judicial review of the Authority’s determinations under § 15d (a). The Court forbids reviewing courts to set aside such determinations unless they lack “reasonable support,” and then discovers such support here in the most minimal evidence. At bottom, the support adduced for this determination by the Court consists of two facts: first, the Authority’s distributor served on July 1, 1957, eight customers in New Tazewell and 20 customers in Tazewell; and second, at least some of the other residents of the two municipalities quite understandably would prefer to pay the lower rates for electrical power charged by the Authority. If these facts illustrate the “reasonable support” demanded by the Court, Congress’ stringent limitation upon the Authority has proved extraordinarily fragile.

Neither the statute nor the pertinent legislative history provides any formula for the precise measurement of the Authority’s service area. However, given Congress’ clear purpose to restrict stringently the expansion of the area served by the Authority on July 1, 1957, I think that the emphasis placed by the Court of Appeals on the number of customers served on that date by respondent and the Authority offers the basis of a sensible and practical standard. Certainly Congress did not wish or expect that, as this Court now holds, the question should be left largely, if not entirely, in the hands of the Authority. I would therefore affirm the judgment below for the reasons given in Judge O’Sullivan’s opinion for the Court of Appeals, 375 F. 2d 403, supplemented by the considerations discussed in this opinion.

       Tennessee Valley Authority Act of 1933, § 15d (a), 73 Stat. 280, as amended, 73 Stat. 338, 16 U. S. C. §831n-4 (a). The full text of the relevant portion of § 15d (a) is as follows:
      “Unless otherwise specifically authorized by Act of Congress the Corporation shall make no contracts for the sale or delivery of power which would have the effect of making the Corporation or its distributors, directly or indirectly, a source of power supply outside the area for which the Corporation or its distributors were the primary source of power supply on July 1, 1957, and such additional area extending not more than five miles around the periphery of such area as may be necessary to care for the growth of the Corporation and its distributors within said area: Provided, however, That such additional area shall not in any event increase by more than 2% per centum (or two thousand square miles, whichever is the lesser) the area for which the Corporation and its distributors were the primary source of power supply on July 1, 1957: And provided further, That no part of such additional area may be in a State not now served by the Corporation or its distributors or in a municipality receiving electric service from another source on or after July 1, 1957, and no more than five hundred square miles of such additional area may be in any one State now served by the Corporation or its distributors.
      “Nothing in this subsection shall prevent the Corporation or its distributors from supplying electric power to any customer within any area in which the Corporation or its distributors had generally established electric service on July 1, 1957, and to which electric service was not being supplied from any other source on the effective date of this Act.”

       For the owner of an electrically heated home, TVA power might cost $30.50 for a winter month as against $75.53 for the identical amount of power supplied by respondent.

       S. 2373, 84th Cong., 1st Sess. (1955); H. R. 4266, 85th Cong., 1st Sess. (1957).

       S. 1855, S. 1869, S. 1986, S. 2145, 85th Cong., 1st Sess. (1957); S. 931, H. R. 3460, 86th Cong., 1st Sess. (1959).

       One of the Senators active in framing the territorial limitation expressed concern over TVA’s powerful bargaining position with respect to its purchase of coal. See S. Rep. No. 470, 86th Cong., 1st Sess., 54 (1959) (supplemental views of Senator Randolph).

       See, e. g., id., at 9 (majority report); id., at 54-55 (supplemental views of Senator Randolph); 105 Cong. Rec. 13053 (July 9, 1959) (remarks of Senator Cooper); id., at 13054 (remarks of Senator Holland); id., at 13055 (remarks of Senator Kerr); id., at 13060-13061 (remarks of Senator Randolph); id., at 13061 (remarks of Senator Byrd); hearings on H. R. 3460 before House Committee on Public Works, March 10-11, 1959, 86th Cong., 1st Sess., 110, 115 (testimony of Representative Vinson); id., at 122 (testimony of Representative Boykin).

       Petitioners’ reliance on Kansas City Power & Light Co. v. McKay, 96 U. S. App. D. C. 273, 225 F. 2d 924, cert. denied, 350 U. S. 884 (1955), is thus misplaced. The Court in McKay ruled that an explicit statutory provision was necessary to confer standing because of the “long established rule” that an injured competitor cannot sue to enforce statutory requirements not designed to protect competitors. In the case of statutes concerned with protecting competitive interests, the “long established rule” is of course precisely the opposite.

       The Court of Appeals stated at one point:
      “But, TVA argues, the 1959 Act must be read as committing to its Board of Directors authority to determine 'the area’ in which it was the primary source of power on that date. We find no words in the Act which directly or impliedly delegated to TVA’s Board such authority.” 375 F. 2d, at 412.
      Later in its opinion, however, the court suggests that this statement was not intended to deny any role to the Board’s determination:
      “We hold that the resolution of the TVA Board did not foreclose the testing of its validity by the District Judge or by this Court on this appeal.” 375 F. 2d, at 415.

       See § 12 of the Tennessee Valley Authority Act, 48 Stat. 65, 16 U. S. C. § 831k.

       It should be noted that the agency determination upon which the Court places so much weight was reached at a “special meeting” of the Board of Directors on August 26, 1964, more than eight months after respondent filed its complaint, and only three weeks before trial. One of the staff memoranda upon which the determination was based refers specifically to this litigation. One might have supposed that a determination which was made post litem, motam warranted at least cautious treatment.

       The Court’s choice of descriptive phrase is noteworthy. The Court suggests that the Authority’s distributor served “a substantial minority” of the customers in the two Tazewells. The District Court found, in fact, that on July 1, 1957, respondent served 95.3% of those customers. 237 F. Supp. 502, 513.

       The Court intimates darkly that “economic dislocations” have occurred. The pertinent evidence appears to consist at bottom of allegations that housing and other forms of economic development tend to locate in areas in which the Authority’s less expensive electrical power is available. Surely the Court does not suppose that Congress in 1959 was unaware that the Authority’s electrical power is relatively inexpensive, or that it did not recognize that those who reside outside the Authority’s service area would find it economically desirable to have that area extended so as to include themselves.

       It is pertinent to note that neither of the two staff memoranda upon which the Authority’s belated determination was explicitly based included among the “facts which appear to be relevant” (Memorandum from the Manager of Power to the General Manager, Tennessee Valley Authority, August 25, 1964, 2 Transcript of Record 801) any references to “economic and engineering aspects” {ante, at 9), or even to any “economic dislocations” {ante, at 13). Whatever the relevance of these factors in the eyes of the Court, the Authority’s staff appears to have thought them immaterial. The determination itself does not, of course, refer to these factors.


source: Caselaw Access Project

author: Mr. Justice Douglas Mr. Justice Fortas,

license: Public Domain

text:
    SCHNEIDER v. SMITH, COMMANDANT, UNITED STATES COAST GUARD.
    No. 196.
    Argued December 12-13, 1967.
    Decided January 16, 1968.

      Leonard, W. Schroeter and John Caughlan argued the cause and filed a brief for appellant.

      John S. Martin, Jr., argued the cause for appellee. With him on the brief were Solicitor General Griswold, Assistant Attorney General Yeagley, Kevin T. Maroney and Lee B. Anderson.

   Mr. Justice Douglas

delivered the opinion of the Court.

Appellant, who has served on board American-flag commercial vessels in various capacities, is now qualified to act as a second assistant engineer on steam vessels. But between 1949 and 1964 he was employed in trades other than that of a merchant seaman. In October 1964 he applied to the Commandant of the Coast Guard for a validation of the permit or license which evidences his ability to act as a second assistant engineer.

Under the Magnuson Act, 64 Stat. 427, 50 U. S. C. § 191 (b), the President is authorized, if he finds that “the security of the United States is endangered by . . . subversive activity,” to issue rules and regulations “to safeguard against destruction, loss, or injury from sabotage or other subversive acts” all “vessels” in the territories or waters subject to the jurisdiction of the United States.

President Truman promulgated Regulations, 33 CFR, pt. 6, which give the Commandant of the Coast Guard authority to grant or withhold validation of any permit or license evidencing the right of a seaman to serve on a merchant vessel of the United States. § 6.10-3. He is directed not to issue such validation unless he. is satisfied that “the character and habits of life of such person are such as to authorize the belief that the presence of the individual on board would not be inimical to the security of the United States.” § 6.10-1.

The questionnaire, which appellant in his application was required to submit, contained the following inquiry which he answered:

“Item 4. Do you now advocate, or have you ever advocated, the overthrow or alteration of the Government of the United States by force' or violence or by unconstitutional means?
“Answer: No.”

The questionnaire contained the following inquiries which related to his membership and participation in organizations which were on the special list of the Attorney General as authorized by Executive Order 10450, 18 Fed. Reg. 2489:

“Item 5. Have you ever submitted material for publication to any of the organizations listed in Item 6 below?
“Answer. No.
“Item 6. Are you now, or have you ever been, a member of, or affiliated or associated with in any way, any of the organizations set forth below? [There followed a list of more than 250 organizations.]
“Answer. Yes.
“If your answer is 'yes/ give full details in Item 7.
“Item 7. (Use this space to explain Items 1 through 6. . . . Attach a separate sheet if there is not enough space here.)
“Answer. I have been a member of many political & social organizations, including several named on this list.
“I cannot remember the names of most of them & could not be specific about any.
“To the best of my knowledge, I have not been a member or participated in the activities of any of these organizations for ten years.”

Upon receiving the questionnaire returned by the appellant, the Commandant advised him that the information was not sufficient and that answers to further interrogatories were necessary.

In reply, appellant, speaking through his counsel, admitted to the Commandant that he had been a member of the Communist Party as well as other organizations on the Attorney General’s list and that he had subscribed to People’s World. He said that he had joined the Party because of his personal philosophy and idealistic goals, but later quit it and the other organizations due to fundamental disagreement with Communist methods and techniques. But beyond that he said he would not answer because “it would be obnoxious to a truly free citizen to answer the kinds of questions under compulsion that you require.” The Commandant declined to process the application further, relying upon 33 CFR § 121.05 (d)(2), which authorizes him to hold the application in abeyance if an applicant fails or refuses to furnish the additional information.

Appellant thereupon brought this action for declaratory relief that the provisions of the Magnuson Act in question and the Commandant’s actions thereunder were unconstitutional, praying that the Commandant be directed to approve his application and that he be enjoined from interfering with appellant’s employment upon vessels flying the American flag.

A three-judge court was convened and the complaint was dismissed. 263 F. Supp. 496. The case is here on appeal, 28 U. S. C. § 1263. We postponed the question of jurisdiction to the merits. 389 U. S. 810.

We agree, as does appellee, that the case was one to be heard by a three-judge court and that accordingly we have jurisdiction of this appeal. For appellant did raise the question as to whether the statute was unconstitutional because of vagueness and abridgment of First Amendment rights and also questioned whether the power to install a screening program was validly delegated. A three-judge court was accordingly proper. Baggett v. Bullitt, 377 U. S. 360; Zemel v. Rusk, 381 U. S. 1.

The Magnuson Act gives the President no express authority to set up a screening program for personnel on merchant vessels of the United States. As respects “any foreign-flag vessels” the power to control those who “go or remain on board” is clear. 50 U. S. C. § 191 (a). As respects personnel of our own merchant ships, the power exists under the Act only if it is found in the power to “safeguard” vessels and waterfront facilities against “sabotage or other subversive acts,” that is, under § 191 (b). The Solicitor General argues that the power to exclude persons from vessels “clearly implies auhority to establish a screening procedure for determining who shall be allowed on board.” But that power to exclude is contained in § 191 (a) which, as noted, applies to “foreign-flag vessels,” while, as we have said, the issue tendered here must find footing in § 191 (b).

We agree with the District Court that keeping our merchant marine free of saboteurs is within the purview of this Act. Our question is a much narrower one.

The Regulations prescribe the standards by which the Commandant is to judge the “character and habits of life” of the employee to determine whether his “presence ... on board” the vessel would be “inimical to the security of the United States”:

“(a) Advocacy of the overthrow or alteration of the Government of the United States by unconstitutional means.
“(b) Commission of, or attempts or preparations to commit, an act of espionage, sabotage, sedition or treason, or conspiring with, or aiding or abetting another to commit such an act.
“(c) Performing, or attempting to perform, duties or otherwise acting so as to serve the interests of another government to the detriment of the United States.
“(d) Deliberate unauthorized disclosure of classified defense information.
“(e) Membership in, or affiliation or sympathetic association with, any foreign or domestic organization, association, movement, group, or combination of persons designated by the Attorney General pursuant to Executive Order 10450, as amended.” 33 CFR § 121.03.

If we assume arguendo that the Act authorizes a type of screening program directed at “membership” or “sympathetic association,” the problem raised by it and the Regulations would b'e kin to the one presented in Shelton v. Tucker, 364 U. S. 479, where a teacher to be hired by a public school of Arkansas had to submit an affidavit “listing all organizations to which he at the time belongs and to which he has belonged during the past five years.” Id., at 481.

We held that an Act touching on First Amendment rights must be narrowly drawn so that the precise evil is exposed; that an unlimited and indiscriminate search of the employee’s past which interferes with his associational freedom is unconstitutional. Id., at 487-490.

If we gave § 191 (b) the broad construction the Solicitor General urges, we would face here the kind of issue present in Shelton v. Tucker, supra, whether government can probe the reading habits, political philosophy, beliefs, and attitudes on social and economic issues of prospective seamen on our merchant vessels.

A saboteur on a merchant vessel may, of course, be dangerous. But no charge that appellant was a saboteur was made. Indeed, no conduct of appellant was at issue before the Commandant. The propositions tendered in the complaint were (1) plaintiff is now and always has been loyal to the United States; (2) he has not been active in any organization on the Attorney General’s list for the past 10 years; (3) he has never committed any act of sabotage or espionage or any act inimical to the security of the United States. Those propositions were neither contested by the Commandant nor conceded. He took the position that admission of evidence on those propositions was “irrelevant and immaterial.”

We are loath to conclude that Congress, in its grant of authority to the President to “safeguard” vessels and waterfront facilities from “sabotage or other subversive acts,” undertook to reach into the First Amendment area. The provision of the Act in question, 50 U. S. C. § 191 (b), speaks only in terms of actions, not ideas or beliefs or reading habits or social, educational, or political associations.

The purpose of the Constitution and Bill of Rights, unlike more recent models promoting a welfare state, was to take government off the backs of people. The First Amendment’s ban against Congress “abridging” freedom of speech, the right peaceably to assemble and to petition, and the “associational freedom” (Shelton v. Tucker, supra, at 490) that goes with those rights create a preserve where the views of the individual are made inviolate. This is the philosophy of Jefferson that “the opinions of men are not the object of civil government, nor under its jurisdiction .... [I]t is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order . ...”

No act of sabotage or espionage or any act inimical to the security of the United States is raised or charged in the present case.

In United States v. Rumely, 345 U. S. 41, the Court construed the statutory word “lobbying” to include only direct representation to Congress, its members, and its committees, not all activities tending to influence, encourage, promote, or retard legislation. Id., at 47. Such an interpretation of the statute, it was said, was “in the candid service of avoiding a serious constitutional doubt” (ibid.) — doubts that were serious “in view of the prohibition of the First Amendment.” Id., at 46.

The holding in Rumely was not novel. It is part of the stream of authority which admonishes courts to construe statutes narrowly so as to avoid constitutional questions.

The Court said in Rumely, “Whenever constitutional limits upon the investigative power of Congress have to be drawn by this Court, it ought only to be done after Congress has demonstrated its full awareness of what is at stake by unequivocally authorizing an inquiry of dubious limits. Experience admonishes us to tread warily in this domain.” 345 U. S., at 46.

The present case involves investigation, not by Congress but by the Executive Branch, stemming from congressional delegation. When we read that delegation with an eye to First Amendment problems, we hesitate to conclude that Congress told the Executive to ferret out the ideological strays in the maritime industry. The words it used — “to safeguard . . . from sabotage or other subversive acts” — refer to actions, not to ideas or beliefs. We would have to stretch those words beyond their normal meaning to give them the meaning the Solicitor General urges. Rumely, and its allied cases, teach just the opposite — that statutory words are to be read narrowly so as to avoid questions concerning the “associational freedom” that Shelton v. Tucker protected and concerning other rights within the purview of the First Amendment.

Reversed.

Mr. Justice Black, while concurring in the Court’s judgment and opinion, also agrees with the statement in Mr. Justice Fortas’ concurring opinion that the statute under consideration, if construed to authorize the interrogatories involved, is offensive to the First Amendment.

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

Mr. Justice Fortas,

concurring.

I concur in the opinion of the Court. Reversal is dictated because the interrogatories which petitioner refused to answer offend the First Amendment. Shelton v. Tucker, 364 U. S. 479 (1960). (They also pass the outermost bounds of reason. No agency may be permitted to require of a person, subject to heavy penalty, sworn essays as to his “attitude toward the form of Government in the United States” or “full particulars,” under oath, without time limit, as to contributions made and functions attended with respect to 250 organizations.) I agree that since Congress did not specifically authorize a personnel screening program, authority to impose procedures of the comprehensive type here involved, necessarily impinging on First Amendment freedoms, may not be inferred from dubious general language. The fault, however, is not that there was an inadequate or improper delegation, but that Congress did not authorize the type of investigation which was launched. Needless to say, Congress has constitutional power to authorize an appropriate personnel screening program and to delegate to executive officials the power to implement and administer it. See United States v. Robel, 389 U. S. 258 (1967).

Mr. Justice Stewart, agreeing with the separate views of Mr. Justice Fortas, concurs in the judgment.

Mr. Justice White, with whom Mr. Justice Harlan joins, concurring in the result.

I agree with the Court that the Magnuson Act did not authorize the inquiry undertaken by the Coast Guard Commandant and that therefore the judgment of the District Court must be reversed. I express no opinion as to the scope of inquiry which Congress could constitutionally provide with respect to applicants for the position of merchant seaman.

       Section 191 provides in part:
      “Whenever the President finds that the security of the United States is endangered by reason of actual or threatened war, or invasion, or insurrection, or subversive activity, or ’of disturbances or threatened disturbances of the international relations of the United States, the President is authorized to institute such measures and issue such rules and regulations—
      “(a) to govern the anchorage and movement of any foreign-flag vessels in the territorial waters of the United States, to inspect such vessels at any time, to place guards thereon, and, if necessary in his opinion in order to secure such vessels from damage or injury, or to prevent damage or injury to any harbor or waters of the United States, or to secure the observance of rights and obligations of the United States, may take for such purposes full possession and control of such vessels and remove therefrom the officers and crew thereof, and all other persons not especially authorized by him to go or remain on board thereof;
      “(b) to safeguard against destruction, loss, or injury from sabotage or other subversive acts, accidents, or other causes of similar nature, vessels, harbors, ports, and waterfront facilities in the United States, the Canal Zone, and all territory and water, continental or insular, subject to the jurisdiction of the United States.”

       "1. With respect to your statements above, furnish the following information, fully and honestly to the best of your ability:
      “(a) List the names of the political and social organizations to which you belonged, and location.
      “(b) Furnish approximate dates of membership.
      “(c) Furnish full particulars concerning the extent of your activities and participation in the organization's (number and type of meetings/functions attended; positions or offices held; classes or schools attended; contributions made; etc.).
      “(d) Your reason for discontinuing the membership.
      “(e) Your present attitude toward the principles and objectives of the organizations.
      “If your answer is ‘YES’ to the following Questions, explain jully in the space provided at the end of the Interrogatories:
      “2. Are you now, or have you ever been, a member of or affiliated with, in any way, the Communist Party, its Subdivisions, Subsidiaries, or Affiliates?
      (Answer ‘Yes’ or ‘No.’)
      “3. Have you at any time been a subscriber to the ‘People’s World’?
      “. If your answer is ‘Yes,’ give dates.
      (Answer ‘Yes’ or ‘No.’)
      4. “Have you at any time engaged in any activities in behalf of
      the ‘People’s World’? .
      (Answer ‘Yes’ or ‘No.’)
      “If your answer is ‘Yes,’ furnish details.
      “5. What is your present attitude toward the Communist Party?
      “6. What is your present attitude toward the principles and objectives of Communism?
      “7. What is your attitude toward the form of Government in the United States?”

       It is true that Senator Magnuson when discussing this measure stated that it “will give the President the authority to invoke th§ same kind of security measures which were invoked in World War I and in World War II.” 96 Cong. Pec. 10795. And from that the Solicitor General argues that the Act authorizes the broad sweeping personnel screening programs which were in force during World War II.
      But this reference by Senator Magnuson apparently was to § 191 (a) which, as noted, covers “any foreign-flag vessels.” When it came to § 191 (b) Senator Magnuson did not speak in terms of any screening program, but said:
      “It [the bill] also has this purpose, which I think is a good one: As I have said before, the last stronghold of subversive activity in this country, in my opinion, or at least the last concentrated stronghold, has been around our waterfronts. It would be impossible for destruction to come to any great port of the United States, of which there are many, as the result of a ship coming into port with an atomic bomb or with biological or other destructive agency, without some liaison ashore. This would give authority to the President to instruct the FBI, in cooperation with the Coast Guard, the Navy, or any other appropriate governmental agency, to go.to our water fronts and pick out people who might be subversives or security risks to this country. I think it goes a long way toward taking care of the domestic situation, as related to this subject, particularly in view of the large amount of talk we have had in the Senate within the past few days about Communists. The bill also protects that last loophole which is left, by which there might be some actual destruction along the shores of the United States.” 96 Cong. Rec. 11321.

       A Bill for Establishing Religious Freedom, Jeffersonian Cyclopedia 976 (1900).

        United States v. Delaware & H. Co., 213 U. S. 366, 407-408; United States v. Harriss, 347 U. S. 612, 618, n. 6; International Machinists v. Street, 367 U. S. 740, 749; Lynch v. Overholser, 369 U. S. 705, 710-711; United States v. National Dairy Corp., 372 U. S. 29, 32.


author: Per Curiam. Mr. Justice Stewart, Mb. Justice Douglas,

text:
    EPTON v. NEW YORK.
    No. 502,
    Misc.
    Decided January 22, 1968

      Eleanor Jackson Piel for petitioner in No. 502, Mise., and for appellant in No. 771, Mise.

      Frank S. Hogan, H. Richard Uviller and Michael Juviler for respondent in No. 502, Mise., and for appellee in No. 771, Mise.

      Together with No. 771, Misc., Epton v. New York, on appeal from the same court.

   Per Curiam.

The petition for a writ of certiorari is denied in No. 502, Mise. The motion to dismiss is granted in No. 771, Mise., and the appeal is dismissed for want of a substantial federal question.

Mr. Justice Stewart,

concurring in the denial of certiorari and the dismissal of the appeal.

I join the denial of certiorari in No. 502, Misc., and the dismissal of the related appeal in No. 771, Misc., but only because Epton has been sentenced to serve three concurrent one-year terms: one for conspiring to riot, New York Penal Law (1944 and 1966 Cum. Supp.), §§ 580, 2090; one for advocating criminal anarchy, §§160, 161; and one for conspiring to engage in such advocacy, §§ 580, 160, 161. I think the riot conviction presents no substantial federal question, and since the three sentences were ordered to run concurrently, I conclude that these cases do not require the Court to consider either the criminal anarchy conviction or the associated conspiracy conviction. See Hirabayashi v. United States, 320 U. S. 81, 85; Lanza v. New York, 370 U. S. 139. If the constitutionality of New York’s criminal anarchy laws were properly presented, however, I would vote to grant the petition for certiorari and note probable jurisdiction of the appeal, to reconsider the Court’s decision in Gitlow v. New York, 268 U. S. 652, and to decide whether the New York anarchy statutes, either on their face or as applied in these cases, violate the First and Fourteenth Amendments.

Mb. Justice Douglas,

dissenting.

I would hear argument in these cases, since I am of the opinion that all questions presented, including those under the first count of the indictment for conspiring to riot, present substantial federal questions.

In the first count, the State alleged the commission of 15 overt acts by Epton in furtherance of the alleged conspiracy to riot. The alleged acts consisted in part of speeches made by Epton and his participation in the preparation and distribution of certain leaflets. Such activities, of course, are normally given the protection of the First Amendment with exceptions not now necessary to state. See Yates v. United States, 354 U. S. 298; Dennis v. United States, 341 U. S. 494; Terminiello v. Chicago, 337 U. S. 1; Thomas v. Collins, 323 U. S. 516; Bridges v. California, 314 U. S. 252; Gitlow v. New York, 268 U. S. 652, 672 (dissenting opinion); Abrams v. United States, 250 U. S. 616, 624 (dissenting opinion); Schenck v. United States, 249 U. S. 47; Chaplinsky v. New Hampshire, 315 U. S. 568; Feiner v. New York, 340 U. S. 315, 329 (dissenting opinion).

Under New York law, a conviction for conspiracy requires both an agreement to commit an unlawful act and at least one overt act in furtherance of that agreement. Whether the overt act required to convict a defendant for conspiracy must be shown to be constitutionally unprotected presents an important question. An argument can of course be made that overt acts are used only to demonstrate the existence of a conspiracy, and to draw reasonable inferences as to the intent of the alleged conspirator.

Although the Court has indicated that the overt act requirement of the treason clause ensures that “thoughts and attitudes alone cannot make a treason” (Cramer v. United States, 325 U. S. 1, 29), it has never decided whether activities protected by the First Amendment can constitute overt acts for purposes of a conviction for treason. The matter was adverted to in Cramer v. United States:

“Thus the crime of treason consists of two elements: adherence to the enemy; and rendering him aid and comfort. A citizen intellectually or emotionally may favor the enemy and harbqr sympathies or convictions disloyal to this country’s policy or interest, but so long as he commits no act of aid and comfort to the enemy, there is no treason. On the other hand, a citizen may take actions which do aid and comfort the enemy — making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and the hundred other things which impair our cohesion and diminish our strength — but if there is no adherence to the enemy in this, if there is no intent to betray, there is' no treason.” (Italics added.) Id., at 29.

In the same case, the four dissenters noted that:

“It is plain . . . that the requirement of an overt act is designed to preclude punishment for treasonable plans or schemes or hopes which have never moved out of the realm of thought or speech.” Id., at 61.

The lower federal courts have considered the question in a few cases, the most exhaustive treatment probably being found in Chandler v. United States, 171 F. 2d 921 (C. A. 1st Cir. 1948). Treason, of course, is not the charge here. Yet the use of constitutionally protected activities to provide the overt acts for conspiracy convictions might well stifle dissent and cool the fervor of those with whom society does not agree at the moment. Society, like an ill person, often pretends it is well or tries to hide its sickness. From this perspective, First Amendment freedoms safeguard society from its own folly. As long as the exercise of those freedoms is within the protection of the First Amendment, the question is presented whether this Court should permit criminal convictions for conspiracy to stand, when they turn on that exercise.

The issue, then, is whether Epton’s speeches and his participation in the preparation and distribution of leaflets can be used as overt acts in a conspiracy charge, without a requirement that they must first be found constitutionally unprotected.

Yates v. United States, 354 U. S. 298, can be construed to permit constitutionally protected activities to be used as overt acts in criminal conspiracies. But there was a separate opinion in that case, written by my Brother Black, which I joined, saying in part:

“The only overt act which is now charged against these defendants is that they went to a constitutionally protected public assembly where they took part in lawful discussion of public questions, and where neither they nor anyone else advocated or suggested overthrow of the United States Government.” Id., at 343.

The majority in the Yates case, however, went to some lengths in protecting First Amendment freedoms. There advocacy was the heart of the case, and the majority held that “advocacy” to be an ingredient of a crime “must be of action and not merely abstract doctrine,” id., at 325. The Court reversed the convictions because the instructions to the jury did not properly delineate that line of distinction. While the majority held that attending a meeting could be an overt act, id., at 334, it went on to hold that the line between constitutionally protected First Amendment rights and those that exceeded the limits must be carefully drawn in instructions to the jury. In the present cases, however, the trial court in its charge to the jury made no qualifications whatsoever as to the permissible range of the use of speech and publications as overt acts. There was no instruction whatsoever that the jury would first have to determine that the particular speech or the particular publication was not constitutionally protected. The principle of Yates was therefore disregarded.

Since in my opinion, none of Epton’s convictions is free of doubt there is no basis for applying the rule that there is no occasion to review a conviction on one count of an indictment if the judgment on another count is valid and the sentences are concurrent. See Lanza v. New York, 370 U. S. 139, 146, 152 (separate opinion of Me. Justice Brennan) ; Hirabayashi v. United States, 320 U. S. 81, 85; Whitfield v. Ohio, 297 U. S. 431, 438. Like my Brother Stewart, I believe that Epton’s convictions for advocating criminal anarchy and conspiracy to advocate criminal anarchy should be reviewed by this Court to consider whether New York’s anarchy statutes either on their face or as applied here pass beyond the pale of constitutionality. See Keyishian v. Board of Regents, 385 U. S. 589; Gitlow v. New York, 268 U. S. 652. Accordingly, I would grant certiorari in No. 502, Misc., note probable jurisdiction in No. 771, Mise., and set the cases for oral argument.

       It is true that some of the acts relied upon by the State to establish the existence of a conspiracy to riot consisted of speeches made by Epton. Like my Brother Douglas, I think it is at least arguable that a State cannot convict a man of criminal conspiracy without first demonstrating some constitutionally unprotected overt act in furtherance of the alleged unlawful agreement. But the State in these cases presented proof that Epton had actively participated in the formation of a group dedicated to armed revolt against the police under the direction of “block captains” and with the assistance of “terrorist bands,” equipped with Molotov cocktails that Epton himself had explained how to use. In the context of this record, activities such as these can make no serious claim to constitutional protection.

       N. Y. Pen. Law §§ 105.00-105.20 (1967). At the time of Epton’s trial, the New York law was essentially the same. N. Y. Pen. Law §§580, 583 (1966 Cum. Supp.).

       My Brother Stewart agrees that “it is at least arguable that a State cannot convict a man of criminal conspiracy without first demonstrating some constitutionally unprotected overt act in furtherance of the alleged unlawful agreement.” But he dismisses that contention in this case because, in his view, the record demonstrates that at least some of Epton’s activities were not constitutionally protected. Perhaps my Brother Stewart means that although some overt acts charged were constitutionally protected, others were not. The latter is doubtless true. But the charge to the jury drew no such discriminating line; and so far as we know the conviction may have rested in whole or in part on overt acts which had First Amendment protection. Because the jury rendered a general verdict on count one, it is impossible for this Court to determine whether a protected activity was employed to convict Epton of conspiracy to riot. In such circumstances, our precedents indicate that the proper procedure would be to set aside the conviction if any of the acts submitted were constitutionally protected. See Haupt v. United States, 330 U. S. 631, 641, n. 1. Cf. Yates v. United States, 354 U. S. 298, 311-312; Cramer v. United States, 325 U. S. 1, 36, n. 45; Stromberg v. California, 283 U. S. 359, 367-368. Moreover, the approach taken by my Brother Stewart hearkens back to the view of the Court in Dennis v. United States, 341 U. S. 494, 512-513, that the question of “clear and present danger” is one of law. The Court ruled that as long as the jury had found the facts essential to establish the substantive crime, the protection of the First Amendment against conviction on those facts was a matter of law for the courts to determine. I dissented in that case, in part on the ground that our precedents had established that the “question of the clear and present danger, being so critical an issue in the case, would be a matter for submission to the jury.” Id., at 587. And, as already noted, the Court in Yates v. United States showed greater solicitude toward the role of the jury in this sensitive First Amendment area than the Court in Dennis or this Court today. To be consistent with the the approach taken in Yates, the jury should be instructed on all points of law that make the difference between conviction and acquittal.


author: Per Curiam.

text:
    KNIGHT et al. v. BOARD OF REGENTS OF THE UNIVERSITY OF THE STATE OF NEW YORK et al.
    No. 826.
    Decided January 22, 1968.

      Alan H. Levine and Jeremiah S. Gutman for appellants.

      Louis J. Lefkowitz, Attorney General of New York, Samuel A. Hirshowitz, First Assistant Attorney General, and Charles A. La Torella, Jr., and Maria L. Marcus, Assistant Attorneys General, for appellees.
   Per Curiam.

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

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


text:
    PAULAITIS v. PAULAITIS.
    No. 815.
    Decided January 22, 1968.
   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:
    WETTER et al. v. CITY OF INDIANAPOLIS et al.
    No. 895.
    Decided January 22, 1968.

      Edward H. Knight and Richard M. Givan for appellants.

      Harry T. Ice for appellees.
   Per Curiam.

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


text:
    BOGART v. STATE BAR OF CALIFORNIA et al.
    No. 806,
    Misc.
    Decided January 22, 1968.

      Peter D. Bogart, appellant, pro se.

      Homer I. Mitchell and F. La Mar Forshee for appellees.
   Per Curiam.

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


text:
    CROSS v. UNITED STATES BOARD OF PAROLE et al.
    No. 842,
    Misc.
    Decided January 22, 1968.

      Solicitor General Griswold, Assistant Attorney General Vinson and Beatrice Rosenberg for appellees.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction.


text:
    CREPEAULT v. VERMONT.
    No. 778,
    Misc.
    Decided January 22, 1968.
   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.