author: Per Curiam. Mr. Justice Black,

text:
    BERMAN v. UNITED STATES.
    No. 245.
    Argued March 26, 1964.
    Decided June 22, 1964.

      Bernard B. Polak argued the cause for petitioner. On the brief was Irwin L. Germaise.

      Theodore George Gilinsky argued the cause for the United States. With him on the brief were Solicitor General Cox, Assistant Attorney General Miller and Beatrice Rosenberg.

   Per Curiam.

The judgment of the Court of Appeals for the Second Circuit is affirmed. United States v. Robinson, 361 U. S. 220.

Mr. Justice Black,

with whom The Chief Justice, Mr. Justice Douglas, and Mr. Justice Goldberg join,

dissenting.

This case seems to me to be decided on the premise that it is more important that the Federal Rules of Criminal Procedure be slavishly followed than that justice be done. I cannot agree to any such principle and therefore dissent.

Petitioner was convicted in the United States District Court for the Southern District of New York on two counts- — one of possessing counterfeit currency and one of receiving stolen securities. He was sentenced to concurrent prison terms of two years on each count and a total fine of $2,000. He decided to appeal. Federal Rule of Criminal Procedure 37 (a) (2) requires a notice of appeal to be filed within 10 days. Here the tenth day fell on Saturday. On the preceding Friday an associate to whom petitioner’s attorney had given the notice of appeal for filing left the office with a fever and went home to bed, where he stayed until late Sunday. Because of the associate’s illness, the notice was not filed on Saturday; instead, it was filed Monday morning. The Court of Appeals, on motion of the Government, dismissed the appeal on the ground that under Rule 37 (a)(2) and Rule 45 (a) the notice for appeal had been filed one day late. Two days after this dismissal, petitioner, as authorized by Fed. Rule Crim. Proc. 35, moved in the District Court for reduction of the sentence. This motion, with supporting affidavits, pointed out to the District Court that petitioner’s appeal had been dismissed because it was one day late. Indeed, a principal ground urged upon the court for acting on the motion was that granting the motion would enable petitioner to appeal from the amended sentence and challenge the validity of the original conviction. The prosecuting attorney objected, saying, “I think he has had his one shot, and it’s all over. He has no further right to appeal if the sentence is reduced.” The District Judge, stating that his understanding was “contrary” to that of the prosecutor, granted petitioner’s motion and, exercising his authority under Rule 35, reduced the sentence on each count from two years to one year and eight months and reduced the fine on each count. The following day, petitioner’s counsel filed a second notice of appeal, but again the Court of Appeals granted the Government’s motion to dismiss, rejecting the District Court’s holding that the time for appeal began to run anew upon the partial rejection of the defendant’s Rule 35 motion. This Court now affirms with the simple citation of United States v. Robinson, 361 U. S. 220. Because I think that United States v. Robinson should be confined to its particular facts, and for a number of other reasons, I would reverse the judgment of the Court of Appeals.

In this case petitioner, Berman, has contended since the time of his first appeal that evidence introduced at his trial had been obtained as a result of an unlawful search and seizure and that a statement by way of a confession made by him was involuntary and therefore should have been excluded as a violation of the Fifth Amendment. The most perfunctory review of this record shows that neither of those two questions is frivolous. In Fay v. Noia, 372 U. S. 391, this Court, after an exhaustive discussion of the question and the citation of many prior decisions of this Court, held that a defendant who had been convicted by use of a coerced confession in a state court could obtain relief in a federal habeas corpus proceeding notwithstanding the fact of a procedural default in the state courts which barred any challenge to the conviction in those courts. It is unthinkable that the same rule should not be applied in federal courts so as to grant relief to a defendant who has been denied a federally guaranteed right because of his failure to comply with the rule which requires the notice of appeal to be filed within 10 days. It is particularly abhorrent to think that such a rule can be enforced in the federal court where, as here, the sole reason for cutting off the defendant’s right of appeal to the Court of Appeals is the fact that, after the defendant has decided to appeal, the lawyer to whom he entrusts the duty of physically transporting his notice of appeal to the Court of Appeals fails to get it there because he is taken ill.

Moreover, the Court in the Robinson case, which the Court now holds is controlling here, expressly stated, 361 U. S., at 230 n. 14, that the allowance of an appeal after expiration of the prescribed time

“seems unnecessary for the accomplishment of substantial justice, for there are a number of collateral remedies available to redress denial of basic rights. Examples are: The power of a District Court under Rule 35 to correct an illegal sentence at any time . . . ; the power of a District Court to entertain a collateral attack upon a judgment of conviction and to vacate, set aside or correct the sentence under 28 U. S. C. § 2255

It is not strange that the Court in Robinson directed its attention to § 2255 proceedings since that section expressly provides that “A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence.”

My belief is that, even if Rule 37 (a)(2) is held to require dismissal of this appeal, and I do not think it should be, this Court should remand the case to the Court of Appeals with directions to treat the appeal as an application for collateral relief under 28 U. S. C. § 2255. Such a course was followed in similar circumstances by the Tenth Circuit in Hixon v. United States, 268 F. 2d 667, where, as here, the appeal was late under Rule 37 (a) (2). And we said in Bartone v. United States, 375 U. S. 52, 54:

“Where state procedural snarls or obstacles preclude an effective state remedy against unconstitutional convictions, federal courts have no other choice but to grant relief in the collateral proceeding. See Fay v. Noia, 372 U. S. 391. But the situation is different in federal proceedings, over which both the Courts of Appeals and this Court {McNabb v. United States, 318 U. S. 332) have broad powers of supervision. It is more appropriate, whenever possible, to correct errors reachable by the appeal rather than remit the parties to a new collateral proceeding.”

This is precisely what I think should be done in this case but the Court insists on affirming the harsh action of the Court of Appeals in dismissing the appeal. For a number of reasons, however, I would not affirm that dismissal.

I believe that petitioner’s original appeal was timely under Rule 37 (a)(2) if that rule is given a liberal, but permissible, construction more consonant with the ends of justice. The rule says that appeals must be taken “within 10 days” after the entry of the order appealed from. Rule 45 (a) says that the last day of the 10-day period is not to be counted if “it is a Sunday or legal holiday”; in such case, the period runs “until the end of the next day which is neither a Sunday nor a holiday.” Neither of these rules says what is to happen if the tenth day is a Saturday, and neither defines what is a “legal holiday.” Rule 56, however, sheds some light, for it states that federal courts shall be open for the filing of papers during business hours “on all days except Sundays and legal holidays,” and the notes of the Advisory Committee responsible for the language of the Criminal Rules state that “legal holidays” include not only federal holidays but also “holidays prescribed by the laws of the State where the clerk’s office is located.” (Emphasis supplied.) On this point, New York law is specific. In New York City, where the United States District Court for the Southern District of New York sits, the offices of clerks of courts are closed on Saturdays by a state statute which provides: “Whenever the last day on which any paper shall be filed or act done or performed in any such office expires on Saturday, the time therefor is hereby extended to and including the next business day.” N. Y. Judiciary Law, §282 (1963 Cum. .Pocket Part). The practice is the same in other public offices in New York; for example, Saturday is not a business day in the offices of the county clerk in New York City, N. Y. County Law, § 902, or in county offices in other counties, id., § 206-a (1963 Cum. Pocket Part).

The situation, simply put, is this: The Federal Rules say that an appeal must be filed within 10 days. They obviously intend to extend the time when the tenth day falls upon some day upon which the bar is not able or accustomed to filing legal papers in the courts — such as Sundays and legal holidays. The Rules refer practitioners and courts to state laws defining legal holidays, the better to avoid pitfalls for local lawyers who might otherwise lose their clients’ cases because of their reliance upon the holiday closings of local courts. At the very outset of the Rules, their authors proclaimed that the Rules “are intended to provide for the just determination of every criminal proceeding” and so commanded courts to construe them so as “to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.” Fed. Rule Crim. Proc. 2. With these principles in mind-, how, then, can we take the problem of deciding what happens when the tenth day falls on Saturday — something not expressly covered by the Rules — and treat it as if it were an impersonal, academic exercise in symbolic logic? Here, quite contrary to the Rules’ promise, constitutional questions are denied a hearing on appeal because of a draconian interpretation of those very Rules. The associate who became ill stated, by affidavit in the Court of Appeals, that he was not aware that the federal courts did not follow the New York practice of extending time for filing until Monday where it would otherwise run out on Saturday. This affidavit is undisputed. Where the Federal Criminal Rules are not clear and leave a particular question to a court’s interpretation, I fail to see how procedure is simplified, administration of justice is made fairer, and expense and delay are eliminated by choosing the strictest and most rigorous possible interpretation of the Rules.

There is another way in which the Rules could be fairly construed so as to avoid the unjust result the Court here reaches. After the appellate court dismissed the original appeal, petitioner went báck to the District Court and made the Rule 35 motion, as stated above. That motion was granted, and the next day petitioner filed a second notice of appeal; again the Court of Appeals dismissed. I think the reasoning of Corey v. United States, 375 U. S. 169, fits this case. In Corey, the petitioner had been committed to custody under 18 U. S. C. § 4208 (b), pending a report from the Bureau of Prisons. Three months later, after the report had been received, Corey was sentenced. Three days after that he filed a notice of appeal, but the Court of Appeals dismissed, holding that the 10 days for appeal had begun running from the time of the original custody order. This Court reversed, holding that an appeal could be taken, at the defendant’s option, either from the original order or from the final sentencing. Similarly, in this case I think the fact that petitioner could have appealed from the first judgment of the District Court did not foreclose him from appealing from the second, amended judgment. As we said in Corey, 375 U. S., at 175, “simply because a defendant could have sought review of his conviction” after the initial order does not mean that Congress intended to deny review from a later order. Furthermore, we have consistently held that once a reviewing court has jurisdiction of one issue of a case (here the reduction of sentence), it may consider questions arising in earlier stages of the case. See Mercer v. Theriot, 377 U. S. 152, 153; Urie v. Thompson, 337 U. S. 163, 171-173.

Oddly enough, because the Court now holds there is no appeal from the second order of the District Court, this man convicted of a crime is worse off than a civil litigant, whose timely motion under Fed. Rule Civ. Proc. 73 to “alter or amend” the judgment would cause the time for an appeal to run anew. Moreover, even a motion which is not timely has been held sufficient in civil cases under Rule 73’s provision dealing with “excusable neglect.” See Woljsohn v. Hankin, 376 U. S. 203; Thompson v. Immigration and Naturalization Service, 375 U. S. 384; Harris Truck Lines, Inc., v. Cherry Meat Packers, Inc., 371 U. S. 215. Surely the rule in criminal cases should not be more strictly applied. Even more odd is the fact that this petitioner, because he had a lawyer, is worse off than a defendant who does not have a lawyer. Cf. Fallen v. United States, ante, p. 139. The same rule which is being used here to cut off petitioner’s appeal says that when a defendant not represented by counsel is sentenced, “the defendant shall be advised of his right to appeal and if he so requests, the clerk shall prepare and file” the notice of appeal for the defendant. Here petitioner took the equivalent steps: he executed the notice of appeal for his lawyer on Thursday. But the lawyer’s associate fell ill, and the Court of Appeals treated Saturday in a way most apt to confuse and trap even a perfectly healthy New York lawyer familiar with local New York practice. Having several ways in which it could have heard the merits of petitioner’s constitutional claim, the Court of Appeals, now followed by this Court I regret to say, chose to interpret the Rules not so as to reach, but rather to defeat, a “just determination” of this case.

Throughout history men have had to suffer from legal systems which worshipped rigid formalities at the expense of justice. It is for this that we remember the Laws of the Medes and Persians and the injustice spawned by the tortuous labyrinth of common-law pleading which it took the creation of courts of equity to counteract. Of course, any civilized system of judicial administration should have enough looseness in the joints to avert gross denials of a litigant’s rights growing out of his lawyer’s mistake or even negligence in failing to file the proper kind of pleading at precisely the prescribed moment. Cf. Link v. Wabash R. Co., 370 U. S. 626, 636 (dissenting opinion). The Criminal Rules were framed with the declared purpose of ensuring that justice not be thwarted by those with too little imagination to see that procedural rules are not ends in themselves, but simply means to an end: the achievement of equal justice for all. I have no doubt that the disposition of this case would have been very congenial to the climate of Baron Parke’s day. I confess, however, that I am uncomfortable with the notion that courts exist to fashion and preserve rules inviolate instead of to apply those rules to do justice to litigants.

      In addition to those questions sought to be raised by petitioner in his appeal, this Court’s decision in Jackson v. Denno, ante, p. 368, creates a third. The judge in this case did not himself pass on the voluntariness of Berman’s confession; instead, he charged the jury that they must be the “sole judges” of the voluntariness of the confession. In so doing, the judge followed what is called the “New York rule” — a rule which this Court in Jackson says is unconstitutional.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    DRESNER et al. v. CITY OF TALLAHASSEE.
    No. 35.
    Argued October 23, 1963.
    Questions certified to Supreme Court of Florida December 2, 1963.
    Decided June 22, 1964.

      Howard Dixon and Carl Rachlin argued the cause for petitioners. With them on the briefs were Alfred I. Hopkins and Tobias Simon.

      Edward J. Hill and Roy T. Rhodes argued the cause for respondent. With them on the brief was Rivers Buford, Jr.

   Per Curiam.

The questions which this Court certified to the Supreme Court of Florida, 375 U. S. 136, having been answered in the affirmative, 164 So. 2d 208, the writ of certiorari is dismissed as improvidently granted. 28 U. S. C. § 1257.


text:
    ALDRICH v. ALDRICH et al.
    No. 55.
    Argued October 24,1963.
    Decided November 12, 1963, that questions be certified to Supreme Court of Florida.
    Questions certified to Supreme Court of Florida December 16, 1963.—
    Decided June 22, 1964.

      Herman D. Rollins argued the cause and filed a brief for petitioner.
    Submitted by Charles M. Love for respondents on the brief in opposition to the petition for writ of certiorari.
   Per Curiam.

Petitioner, Marguerite Loretta Aldrich, was granted a divorce from M. S. Aldrich by the Circuit Court of Dade County, Florida, in 1945. The jurisdiction of that court to award the divorce was not contested then, nor is it contested in this action. M. S. Aldrich was ordered by the Court to pay petitioner $250 a month as permanent alimony, and the decree provided that “said monthly sum of $250.00 shall, upon the death of said defendant [husband], become a charge upon his estate during her [petitioner’s] lifetime . . . .” There was no prior express agreement between the parties that the estate would be bound. Subsequently, the husband petitioned the Florida court for a rehearing, which was denied, but the court reduced alimony from $250 to $215 per month. No appeal was taken by either party.

M. S. Aldrich died testate, a resident of Putnam County, West Virginia, on May 29, 1958. His will was duly probated in Putnam County and petitioner filed a claim against the estate for alimony which had accrued after the death of her former husband. The appraisal of the estate showed assets of $7,283.50. Petitioner commenced this action in the Circuit Court of Putnam County, West Virginia, in order to have her rights in the estate determined. She also demanded that certain allegedly fraudulent transfers of real and personal property made by M. S. Aldrich be set aside and the properties which were the subject of such transfers administered as a part of the estate, so as to be subject to her claim for alimony under the Florida divorce decree.

On motion for summary judgment by the defendants, the Circuit Court of Putnam County held that the decree of the Florida divorce court was invalid and unenforceable insofar as it purported to impose upon the estate of M. S. Aldrich an obligation to pay alimony accruing after his death. The Supreme Court of Appeals of West Virginia affirmed the judgment, 147 W. Va. 269, 127 S. E. 2d 385. It characterized the controlling question in the case as

“whether the judgment ... to the extent that it awards alimony to accrue after the death of M. S. Aldrich and makes the alimony so accruing a charge upon his estate, is a valid judgment which is entitled to full faith and credit in the courts of this state; for if such judgment is not entitled to such full faith and credit the question of its enforcibility against the property and assets formerly owned by M. S. Aldrich becomes unimportant and need not be considered or discussed.” 147 W. Va., at 274, 127 S. E. 2d, at 388.

Recognizing that, as required by the Full Faith and Credit Clause, Art. IV, § 1, of the Federal Constitution, “a judgment of a court of another state has the same force and effect in this state as it has in the state in which it was pronounced,” 147 W. Va., at 275, 127 S. E. 2d, at 388, the court also noted that 'no greater effect is to be given to it than it would have in the state where it was rendered.’ ” Ibid., 127 S. E. 2d, at 389. Although apparently not questioning the power of Florida to impose a charge upon the estate, the court concluded that such a charge was, absent express agreement by the parties to the divorce, improper under Florida law and that “the judgment awarding such alimony was void and of no force and effect under the law of the State of Florida in which such judgment was rendered and will not be given full faith and credit in the courts of this state.” 147 W. Va., at 283, 127 S. E. 2d, at 393. We granted certiorari, 372 U. S. 963, to decide whether West Virginia had complied with the mandate of the Full Faith and Credit Clause.

Being uncertain regarding the relevant law of Florida and believing that law to be determinative of the effect to be given the Florida judgment, we certified (375 U. S. 75, 375 U. S. 249, 251-252) the following questions of state law to the Florida Supreme Court, pursuant to Rule 4.61 of the Florida Appellate Rules:

1. Is a decree of alimony that purports to bind the estate of a deceased husband permissible, in the absence of an express prior agreement between the two spouses authorizing or contemplating such a decree?

2. If such a decree is not permissible, does the error of the court entering it render that court without subject matter jurisdiction with regard to that aspect of the cause?

3. If subject matter jurisdiction is thus lacking, may that defect be challenged in Florida, after the time for appellate review has expired, (i) by the representatives of the estate of the deceased husband or (ii) by persons to whom the deceased husband has allegedly transferred part of his property without consideration?

4. If the decree is impermissible but not subject to such attack in Florida for lack of subject matter jurisdiction by those mentioned in subparagraph 3, may an attack be successfully based on this error of law in the rendition of the decree?

The Florida court, in answer to our certification, has determined that although the award of alimony purporting to bind the estate was not proper under Florida law, the court rendering the decree did not thereby lose its jurisdiction over that part of the case. It further decided that “when the husband failed to take an appeal and give a reviewing court the opportunity to correct the error, the decree of the Circuit Court on such question passed into verity, became final, and is not now subject to collateral attack.” 163 So. 2d 276, 284. Having given a negative answer to both the first two questions, the court believed it unnecessary to consider the latter two questions. We accordingly take the passage quoted above as meaning that collateral attack on any ground would not have been sustained.

Given the answers of the Florida court, it becomes plain that the judgment of the Supreme Court of Appeals of West Virginia, based as it was on a misapprehension regarding the law of a sister State, cannot stand. The Florida alimony decree must be treated as if it were perfectly correct under substantive principles of Florida law. It cannot be argued that a rule of law imposing a burden on the estate of a divorced man who has had his day in court violates due process, and if the judgment is binding upon him, it is also binding on those whom Florida law considers to be in privity with him, so long as Florida does not seek to bind those who cannot be bound consistent with due process. That West Virginia must give the decree of alimony as broad a scope as that it has in Florida is clear, see Johnson v. Muelberger, 340 U. S. 581, and is questioned neither by the Supreme Court of Appeals of West Virginia nor by respondents.

The judgment below is reversed, and the case remanded for proceedings not inconsistent with this opinion.

It is so ordered.


text:
    LEONARD v. UNITED STATES.
    No. 1017, Misc.
    Decided June 22, 1964.

      John G. Clancy for petitioner.

      Solicitor General Cox for the United States.
   Per Curiam.

Petitioner was convicted in separate trials and by different juries of forging and uttering endorsements on government checks, 18 U. S. C. § 495, and of transportation of a forged instrument in interstate commerce, 18 U. S. C. § 2314. The two cases were tried in succession. The jury in the case tried first — forging and uttering endorsements — announced its guilty verdict in open court in the presence of the jury panel from which the jurors who were to try the second case — transportation of a forged instrument — were selected. Petitioner immediately objected to selecting a jury for the second case from among members of the panel who had heard the guilty verdict in the first case. The objection was overruled, and the actual jury which found petitioner guilty in the second case contained five jurors who had heard the verdict in the first case. The conviction in the second case was affirmed on appeal, 324 P. 2d 914, and petitioner now seeks a writ of certiorari.

The Solicitor General, in his brief filed in this Court, states that:

“The procedure followed by the district court in selecting the jury was, in our view, plainly erroneous. Prospective jurors who have sat in the courtroom and heard a verdict returned against a man charged with crime in a similar case immediately prior to the trial of another indictment against him should be automatically disqualified from serving at the second trial, if the objection is raised at the outset.”

We agree that under the circumstances of this case the trial court erred in denying petitioner’s objection. Accordingly the motion for leave to proceed in forma pau-peris and the petition for a writ of certiorari are granted, the judgment of conviction is reversed, and the cause is remanded for proceedings in conformity with this opinion.

It is so ordered.


text:
    COOPER v. PATE, WARDEN.
    No. 1134, Misc.
    Decided June 22, 1964.

      Alex Elson and Bernard Weisberg for petitioner.

      William G. Clark, Attorney General of Illinois, and Raymond S. Sarnow and Edward A. Berman, Assistant Attorneys General, for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted.

The petitioner, an inmate at the Illinois State Penitentiary, brought an action under 28 U. S. C. § 1343 and 42 U. S. C. § 1983, § 1979 of the Revised Statutes, alleging that solely because of his religious beliefs he was denied permission to purchase certain religious publications and denied other privileges enjoyed by other prisoners. The District Court granted the respondent’s motion to dismiss for failure to state a claim on which relief could be granted and the Court of Appeals affirmed. 324 F. 2d 165 (C. A. 7th Cir.). We reverse the judgment below. Taking as true the allegations of the complaint, as they must be on a motion to dismiss, the complaint stated a cause of action and it was error to dismiss it. See Pierce v. LaVallee, 293 F. 2d 233 (C. A. 2d Cir.); Sewell v. Pegelow, 291 F. 2d 196 (C. A. 4th Cir.).


text:
    DREWS et al. v. MARYLAND.
    No. 3.
    Decided June 22, 1964.

      Robert B. Watts, Francis D. Murnaghan, Jr. and Jack Greenberg for appellants.

      Thomas B. Finan, Attorney General of Maryland, and Joseph S. Kaufman, Deputy Attorney General, for appellee.
   Per Curiam.

The judgment is vacated and the case is remanded to the Court of Appeals of Maryland for consideration in light of Griffin v. Maryland, ante, p. 130, and Bell v. Maryland, ante, p. 226.

Mr. Justice Douglas would reverse outright on the basis of the views expressed in his opinion in Bell v. Maryland, ante, p. 242.

Mr. Justice Black, Mr. Justice Harlan and Mr. Justice White dissent.


text:
    WILLIAMS v. NORTH CAROLINA.
    No. 4.
    Decided June 22, 1964.

      Leonard B. Boudin, Victor Rabinowitz and Conrad J. Lynn for petitioner.

      T. W. Bruton, Attorney General of North Carolina, and Ralph Moody, Assistant Attorney General, for respondent.
   Per Curiam.

The petition for writ of certiorari is granted, the judgment vacated and the case remanded to the Supreme Court of North Carolina for consideration in light of Robinson v. Florida, ante, p. 153.

Mr. Justice Douglas would reverse outright on the basis of the views expressed in his opinion in Bell v. Maryland, ante, p. 242.

Mr. Justice Black, Mr. Justice Harlan and Mr. Justice White dissent.


text:
    ROGERS v. UNITED STATES.
    No. 1011, Misc.
    Decided June 22, 1964.

      James T. Moran for petitioner.

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

The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is vacated and the case remanded to the United States District Court for the Western District of Oklahoma for resentencing in light of the concessions made by the Solicitor General and upon an examination of the entire record in the case.


text:
    GREEN et al. v. VIRGINIA.
    No. 761.
    Decided June 22, 1964.

      Jack Greenberg, James M. Nabrit III and Roland D. Ealey for petitioners.

      Reno S. Harp III, Assistant Attorney General of Virginia, for respondent.
   Per Curiam.

The petition for writ of certiorari is granted, the judgments are vacated and the case remanded to the Supreme Court of Appeals of Virginia for consideration in light of Peterson v. City of Greenville, 373 U. S. 244, and Robinson v. Florida, ante, p. 153.

Mr. Justice Douglas would reverse outright on the basis of the views expressed in his opinion in Bell v. Maryland, ante, p. 242.


text:
    MITCHELL et al. v. CITY OF CHARLESTON.
    No. 8.
    Decided June 22, 1964.

      Jack Greenberg, Constance Baker Motley, James M. Nabrit III, Matthew J. Perry, Lincoln C. Jenkins, Jr. and John H. Wrighten for petitioners.

      Robert L. Clement, Jr. for respondent.
   Per Curiam.

The petition for writ of certiorari is granted and the judgment is reversed. Bouie v. City of Columbia, ante, p. 347.

Mr. Justice Douglas would reverse on the basis of the views expressed in his opinion in Bell v. Maryland, ante, p. 242.

Mr. Justice Black, Mr. Justice Harlan and Mr. Justice White dissent.


text:
    HARRIS et al. v. VIRGINIA.
    No. 57, Misc.
    Decided June 22, 1964.

      Len W. Holt and Simon Lawrence Cain for petitioners.

      Sol Goodman 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 vacated and the case remanded to the Supreme Court of Appeals of Virginia for consideration in light of Peterson v. City of Greenville, 373 U. S. 244, and Robinson v. Florida, ante, p. 153.

Mr. Justice Douglas would reverse outright on the basis of the views expressed in his opinion in Bell v. Maryland, ante, p. 242.


text:
    SWANN v. ADAMS, SECRETARY OF STATE OF FLORIDA, et al.
    No. 297.
    Decided June 22, 1964.

      Wm. Reece Smith, Jr. for appellant.

      Richard W. Ervin, Attorney General of Florida, C. Graham Carothers, Special Assistant Attorney General, and Edward S. Jaffry and Joseph C. Jacobs, Assistant Attorneys General, for appellees.
   Per Curiam.

The judgment below is reversed. Reynolds v. Sims, 377 U. S. 533. The case is remanded for further proceedings consistent with the views stated in our opinions in Reynolds v. Sims and in the other cases relating to state legislative apportionment decided along with Reynolds.

Mr. Justice Clark would reverse on the grounds stated in his opinion in Reynolds v. Sims, 377 U. S. 533, 587.

Mr. Justice Stewart would remand for further proceedings consistent with the views expressed in his dissenting opinion in Lucas v. Forty-Fourth General Assembly of Colorado, 377 U. S. 713, 744.

Mr. Justice Harlan dissents for the reasons stated in his dissenting opinion in Reynolds v. Sims, 377 U. S. 533, 589.


text:
    MEYERS, SECRETARY OF STATE OF WASHINGTON, v. THIGPEN et al.
    No. 381.
    Decided June 22, 1964.

      John J. O’Connell, Attorney General of Washington, Philip H. Austin, Assistant Attorney General, and Lyle L. Iversen, Special Assistant Attorney General, for appellant.

      Vincent H. D. Ahhey, Myron L. Borawick and Stimson Bullitt for appellees.
   Per Curiam.

The judgment below is affirmed on the merits, insofar as it relates to the apportionment of seats in the Washington Legislature. Reynolds v. Sims, 377 U. S. 533. The case is remanded for further proceedings, with respect to relief, consistent with the views stated in our opinions in Reynolds v. Sims and in the other cases relating to state legislative apportionment decided along with Reynolds. Since no question relating to the correctness of that part of the decision below holding valid the scheme of congressional districting in the State of Washington is presented in this appeal, we do not consider or pass upon that issue.

Mr. Justice Clark would affirm on the grounds stated in his opinion in Reynolds v. Sims, 377 U. S. 533, 587.

Mr. Justice Stewart would remand for further proceedings consistent with the views expressed in his dissenting opinion in Lucas v. Forty-Fourth General Assembly of Colorado, 377 U. S. 713, 744.

Mr. Justice Harlan dissents for the reasons stated in his dissenting opinion in Reynolds v. Sims, 377 U. S. 533, 589.


text:
    LUCAS et al. v. ADAMS, SECRETARY OF STATE OF FLORIDA, et al.
    No. 559.
    Decided June 22, 1964.

      Releford McGriff for appellants.

      Richard W. Ervin, Attorney General of Florida, Edward S. Jaffry and Joseph C. Jacobs, Assistant Attorneys General, and Wilton R. Miller, Special Assistant Attorney General, for appellees.
   Per Curiam.

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


text:
    NOLAN v. RHODES, GOVERNOR OF OHIO, et al.
    No. 454.
    Decided June 22, 1964.

      Kenneth G. Weinberg and Stewart R. Jaffy for appellant in No. 454.

      William B. Saxbe, Attorney General of Ohio, and Hugh A. Sherer for appellees in No. 454.

      Jerome Goldman, Robert P. Goldman and Harris Weston for appellants in No. 455.

      William B, Saxbe, Attorney General of Ohio, Gerald A. Donahue, First Assistant Attorney General, and John J. Chester for appellees in No. 455.

      Together with No. 455, Sive et al. v. Ellis et al., also on appeal from the same court.

   Per Curiam.

The judgment below is reversed. Reynolds v. Sims, 377 U. S. 533. The cases are remanded for further proceedings consistent with the views stated in our opinions In Reynolds v. Sims and in the other cases relating to state legislative apportionment decided along with Reynolds.

Mr. Justice Clark would reverse on the grounds stated in his opinion in Reynolds v. Sims, 377 U. S. 533, 587.

Mr. Justice Stewart would affirm the judgment because the Ohio system of legislative apportionment is clearly a rational one and clearly does not frustrate effective majority rule.

Mr. Justice Harlan dissents for the reasons stated in his dissenting opinion in Reynolds v. Sims, 377 U. S. 533, 589.


text:
    WEST et al. v. CARR et al.
    No. 706.
    Decided June 22, 1964.

      Harris A. Gilbert for appellants.

      George F. McCanless, Attorney General of Tennessee, and Thomas E. Fox, Assistant Attorney General, 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:
    GLASS et al. v. HANCOCK COUNTY ELECTION COMMISSION et al.
    No. 853.
    Decided June 22, 1964.

      Upton Sisson for appellants.
   Per Curiam.

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:
    WILLIAMS, TREASURER OF OKLAHOMA, et al. v. MOSS et al.
    No. 476.
    Decided June 22, 1964.

      Charles Nesbitt, Attorney General of Oklahoma, for appellants in No. 476.

      Frank Carter for appellants in No. 534.

      Jim A. Rinehart for appellants in No. 546.

      Sid White for appellee Moss in No. 476.

      Norman E. Reynolds, Jr., pro se, appellee in Nos. 476 and 534.

      Delmer L. Stagner and LeRoy Powers for Council of Democratic Neighborhood Clubs in Nos. 476 and 534.

      Together with No. 534, Oklahoma Farm Bureau et al. v. Moss et al., and No. 546, Baldwin et al. v. Moss, both also on appeal from the same court.

   Per Curiam.

The judgment below is affirmed on the merits. Reynolds v. Sims, 377 U. S. 533. The cases are remanded for further proceedings, with respect to relief, consistent with the views stated in our opinions in Reynolds v. Sims and in the other cases relating to state legislative apportionment decided along with Reynolds, should that become necessary.

Mr. Justice Clark would affirm on the merits on the grounds stated in his opinion in Reynolds v. Sims, 377 U. S. 533, 587.

Mr. Justice Stewart would affirm the judgment insofar as it holds that Oklahoma’s system of legislative apportionment violates the Equal Protection Clause.

Mr. Justice Harlan dissents for the reasons stated in his dissenting opinion in Reynolds v. Sims, 377 U. S. 533, 589.


text:
    GERMANO et al. v. KERNER, GOVERNOR OF ILLINOIS, et al.
    No. 636.
    Decided June 22, 1964.

      Bernard Kleiman, Lester Asher, John C. Melaniphy and Charles S. Rhyne for appellants.

      Howard J. Trienens and Gary L. Cowan for appellees.
   Per Curiam.

The judgment below is reversed. Reynolds v. Sims, 377 U. S. 533; Lucas v. Forty-Fourth General Assembly of Colorado, 377 U. S. 713. The case is remanded for further proceedings consistent with the views stated in our opinions in Reynolds v. Sims and in the other cases relating to state legislative apportionment decided along with Reynolds.

Mr. Justice Clark and Mr. Justice Stewart would affirm the judgment, because, as the opinions of Judge Campbell and Judge Schnackenberg demonstrate, 220 F. Supp. 230, 235, the Illinois system of legislative apportionment is entirely rational and does not frustrate effective majority rule.

Mr. Justice Harlan dissents for the reasons stated in his dissenting opinion in Reynolds v. Sims, 377 U. S. 533, 589.

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


text:
    MARSHALL et al. v. HARE, SECRETARY OF STATE OF MICHIGAN, et al.
    No. 962.
    Decided June 22, 1964.

      Theodore Sachs for appellants.

      Robert A. Derengoski, Solicitor General of Michigan, Stanton S. Faville, Chief Assistant Attorney General, and James R. Ramsey and Russell A. Searl, Assistant Attorneys General, for Hare et al.; and Edmund E. Shepherd and R. William Rogers for Beadle et al., appellees.
   Per Curiam.

The judgment below is reversed. Reynolds v. Sims, 377 U. S. 533; Lucas v. Forty-Fourth General Assembly of Colorado, 377 U. S. 713. The case is remanded for further proceedings consistent with the views stated in our opinions in Reynolds v. Sims and in the other cases relating to state legislative apportionment decided along with Reynolds.

Mr. Justice Clark and Mr. Justice Stewart would affirm the judgment because the Michigan system of legislative apportionment is clearly a rational one and clearly does not frustrate effective majority rule.

Mr. Justice Harlan dissents for the reasons stated in his dissenting opinion in Reynolds v. Sims, 377 U. S. 533, 589.


text:
    TOWN OF FRANKLIN et al. v. BUTTERWORTH et al.
    No. 1032.
    Decided June 22, 1964.

      John D. Fassett for appellants.

      Richard H. Bowerman for appellees.
   Per Curiam.

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


text:
    SENK v. PENNSYLVANIA.
    No. 900, Misc.
    Decided June 22, 1964.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment of the Supreme Court of Pennsylvania is vacated and the case is remanded for further proceedings not inconsistent with the opinion of this Court in Jackson v. Denno, ante, p. 368.

Mr. Justice Black, Mr. Justice Clark, Mr. Justice Harlan and Mr. Justice Stewart dissent for the reasons stated in their dissenting opinions in Jackson v. Denno, supra.


text:
    HEARNE et al. v. SMYLIE, GOVERNOR OF IDAHO, et al.
    No. 1075.
    Decided June 22, 1964.

      Herman J. McDevitt for appellants.

      Allan G. Shepard, Attorney General of Idaho, and M. Allyn Dingel, Jr., Assistant Attorney General, for appellees.
   Per Curiam.

The judgment below is reversed. Baker v. Carr, 369 U. S. 186; Reynolds v. Sims, 377 U. S. 533. The case is remanded for further proceedings consistent with the views stated in our opinions in Reynolds v. Sims and in the other cases relating to state legislative apportionment decided along with Reynolds.

Mr. Justice Clark would reverse on the basis of his dissenting opinion in Lucas v. Forty-Fourth General Assembly of Colorado, 377 U. S. 713, 741.

Mr. Justice Stewart would remand for further proceedings consistent with the views stated in his dissenting opinion in Lucas v. Forty-Fourth General Assembly of Colorado, 377 U. S. 713, 744.

Mr. Justice Harlan dissents for the reasons stated in his dissenting opinion in Reynolds v. Sims, 377 U. S. 533, 589.


text:
    PINNEY et al. v. BUTTERWORTH et al.
    No. 1078.
    Decided June 22, 1964.

      H. Meade Alcorn, Jr., James William Moore and Norman K. Parsells for appellants.

      Richard H. Bowerman for appellees.
   Per Curiam.

The judgment below is affirmed. Reynolds v. Sims, 377 U. S. 533. The case is remanded for further proceedings, with respect to relief, consistent with the views stated in our opinions in Reynolds v. Sims and in the other cases relating to state legislative apportionment decided along with Reynolds.

Mr. Justice Clark would affirm the judgment on the basis of his opinion in Reynolds v. Sims, 377 U. S. 533, 587.

Mr. Justice Stewart would affirm the judgment insofar as it holds that Connecticut’s system of legislative apportionment violates the Equal Protection Clause.

Mr. Justice Harlan dissents for the reasons stated in his dissenting opinion in Reynolds v. Sims, 377 U. S. 533, 589.


text:
    HILL, AUDITOR OF CLARKE COUNTY, IOWA, et al. v. DAVIS et al.
    No. 1079.
    Decided June 22, 1964.

      Ward, Reynoldson for appellants.

      Robert F. Wilson for appellees.
   Per Curiam.

The judgment below is affirmed. Reynolds v. Sims, 377 U. S. 533. The case is remanded for further proceedings, with respect to relief, consistent with the views stated in our opinions in Reynolds v. Sims and in the other cases relating to state legislative apportionment decided along with Reynolds, should that become necessary. Since this appeal presents no question as to the correctness of the District Court’s later decision upholding the validity of the temporary reapportionment plan enacted by the Iowa General Assembly in February 1964, we do not consider or pass upon this matter.

Mr. Justice Clark would affirm on the grounds stated in his opinion in Reynolds v. Sims, 377 U. S. 533, 587.

Mr. Justice Stewart would affirm the judgment insofar as it holds that Iowa’s system of legislative apportionment violates the Equal Protection Clause.

Mr. Justice Harlan dissents for the reasons stated in his dissenting opinion in Reynolds v. Sims, 377 U. S. 533, 589.


text:
    LATHAN v. NEW YORK.
    No, 298, Misc.
    Decided June 22, 1964.

      Murray A. Gordon for petitioner.

      Isidore Dollinger and Bertram R. Gelfand 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 of the Court of Appeals of the State of New York is vacated and the case is remanded for further proceedings not inconsistent with the opinion of this Court in Jackson v. Denno, ante, p. 368.

Mr. Justice Black, Mr. Justice Clark, Mr. Justice Harlan and Mr. Justice Stewart dissent for the reasons stated in their dissenting opinions in Jackson v. Denno, supra.


text:
    LOPEZ v. TEXAS.
    No. 396, Misc.
    Decided June 22, 1964.

      Carlos C. Cadena for petitioner.

      Waggoner Carr, Attorney General of Texas, and James E. Barlow 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 of the Court of Criminal Appeals of Texas is vacated and the case is remanded for further proceedings not inconsistent with the opinion of this Court in Jackson v. Denno, ante, p. 368.

Mr. Justice Black, Mr. Justice Clark, Mr. Justice Harlan and Mr. Justice Stewart dissent for the reasons stated in their dissenting opinions in Jackson v. Denno, supra.


text:
    OISTER v. PENNSYLVANIA.
    No. 682, Misc.
    Decided June 22, 1964.

      Joseph Knox Fornance for petitioner.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment of the Superior Court of Pennsylvania is vacated and the case is remanded for further proceedings not inconsistent with the opinion of this Court in Jackson v. Denno, ante, p. 368.

Mr. Justice Black, Mr. Justice Clark, Mr. Justice Harlan and Mr. Justice Stewart dissent for the reasons stated in their dissenting opinions in Jackson v. Denno, supra.


text:
    MUSCHETTE v. UNITED STATES.
    No. 729, Misc.
    Decided June 22, 1964.

      Alfred L. Scanlan 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 -pau-peris and the petition for a writ of certiorari are granted. The judgment of the United States Court of Appeals for the District of Columbia Circuit is vacated and the case is remanded for further proceedings in conformity with the opinion of this Court in Jackson v. Denno, ante, p. 368.

Mr. Justice Black, Mr. Justice Clark, Mr. Justice Harlan and Mr. Justice Stewart dissent for the reasons stated in their dissenting opinions in Jackson v. Denno, supra.


text:
    DEL HOYO v. NEW YORK.
    No. 893, Misc.
    Decided June 22, 1964.

      Leon B. Polsky and Edward A. Miller for petitioner.

      Isidore Dollinger and Irving Anolik 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 of the Appellate Division of the Supreme Court of New York, First Judicial Department, is vacated and the case is remanded for further proceedings not inconsistent with the opinion of this Court in Jackson v. Denno, ante, p. 368.

Mr. Justice Black, Mr. Justice Clark, Mr. Justice Harlan and Mr. Justice Stewart dissent for the reasons stated in their dissenting opinions in Jackson v. Denno, supra.


text:
    PEA v. UNITED STATES.
    No. 930, Misc.
    Decided June 22, 1964.

      Henry Lincoln Johnson, Jr. for petitioner.

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

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment of the United States Court of Appeals for the District of Columbia Circuit is vacated and the case is remanded for further proceedings in conformity with the opinion of this Court in Jackson v. Denno, ante, p. 368.

Mr. Justice Black, Mr. Justice Clark, Mr. Justice Harlan and Mr. Justice Stewart dissent for the reasons stated in their dissenting opinions in Jackson v. Denno, supra.


text:
    HARRIS v. TEXAS.
    No. 963, Misc.
    Decided June 22, 1964.

      Marian S. Rosen for petitioner.

      Carl E. F. Dally 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 of the Court of Criminal Appeals of Texas is vacated and the case is remanded for further proceedings not inconsistent with the opinion of this Court in Jackson v. Denno, ante, p. 368.

Mr. Justice Black, Mr. Justice Clark, Mr. Justice Harlan and Mr. Justice Stewart dissent for the reasons stated in their dissenting opinions in Jackson v. Denno, supra.


text:
    CATANZARO v. NEW YORK.
    No. 994, Misc.
    Decided June 22, 1964.
    Petitioner pro se.

      Frank S. Hogan and H. Richard Uviller 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 of the Court of Appeals of New York is vacated and the case is remanded for further proceedings not inconsistent with the opinion of this Court in Jackson v. Denno, ante, p. 368.

Mr. Justice Black, Mr. Justice Clark, Mr. Justice Harlan and Mr. Justice Stewart dissent for the reasons stated in their dissenting opinions in Jackson v. Denno, supra.


text:
    OWEN et al. v. ARIZONA.
    No. 1078, Misc.
    Decided June 22, 1964.
    Petitioners pro se.

      Robert W. Pickrell, Attorney General of Arizona, and Norman E. Oreen for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgments of the Supreme Court of Arizona are vacated and the case is remanded for further proceedings not inconsistent with the opinion of this Court in Jackson v. Denno, ante, p. 368.

Mr. Justice Black, Mr. Justice Clark, Mr. Justice Harlan and Mr. Justice Stewart dissent for the reasons stated in their dissenting opinions in Jackson v. Denno, supra.


text:
    McNERLIN v. DENNO, WARDEN.
    No. 1117, Misc.
    Decided June 22, 1964.

      Richard J. Medalie for petitioner.

      Louis J. Lefkowitz, Attorney General of New York, Samuel A. Hirshowitz, First Assistant Attorney General, and Ronald J. Offenkrantz, Assistant Attorney General, 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 of the United States Court of Appeals for the Second Circuit is vacated and the case is remanded for further proceedings in conformity with the opinion of this Court in Jackson v. Denno, ante, p. .368.

Mr. Justice Black, Mr. Justice Clark, Mr. Justice Harlan and Mr. Justice Stewart dissent for the reasons stated in their dissenting opinions in Jackson v. Denno, supra.


text:
    TRALINS v. GERSTEIN, STATE ATTORNEY.
    No. 246.
    Decided June 22, 1964.

      Richard Yale Feder and Howard W. Dixon for petitioner.

      Richard W. Ervin, Attorney General of Florida, Herbert P. Benn and Leonard R. Mellon, Assistant Attorneys General, and Glenn C. Mincer for respondent.
   Per Curiam.

The petition for a writ of certiorari is granted, and the judgment is reversed. Mr. Justice Black and Mr. Justice Douglas would reverse for the reasons stated in the opinion of Mr. Justice Black in Jacobellis v. Ohio, ante, p. 196. Mr. Justice Brennan and Mr. Justice Goldberg would reverse for the reasons stated in the opinion of Mr. Justice Brennan in Jacobellis, ante, p. 184. Mr. Justice Stewart would reverse for the reasons stated in his opinion in Jacobellis, ante, p. 197. The Chief Justice, Mr. Justice Clark, Mr. Justice Harlan, and Mr. Justice White are of the opinion that certiorari should be denied.


text:
    GROVE PRESS, INC., v. GERSTEIN, STATE ATTORNEY, et al.
    No. 718.
    Decided June 22, 1964.

      Edward de Orazia and Richard Yale Feder for petitioner.

      James W. Kynes, Attorney General of Florida, Leonard R. Mellon, Assistant Attorney General, and Glenn C. Mincer for respondents.
   Per Curiam.

The petition for a writ of certiorari is granted, and the judgment is reversed. Mr. Justice Black and Mr. Justice Douglas would reverse for the reasons stated in the opinion of Mr. Justice Black in Jacobellis v. Ohio, ante, p. 196. Mr. Justice Brennan and Mr. Justice Goldberg would reverse for the reasons stated in the opinion of Mr. Justice Brennan in Jacobellis, ante, p. 184. Mr. Justice Stewart would reverse for the reasons stated in his opinion in Jacobellis, ante, p. 197. The Chief Justice, Mr. Justice Clark, Mr. Justice Harlan, and Mr. Justice White are of the opinion that certiorari should be denied.


text:
    FRIED v. NEW YORK.
    No. 330.
    Decided June 22, 1964.

      Herbert Monte Levy for appellant.

      Frank S. Hogan and H. Richard XJviller for appellee.
   Per Curiam.

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.

Mr. Justice Black, Mr. Justice Douglas and Mr. Justice Stewart are of the opinion that probable jurisdiction should be noted and the judgment reversed.


text:
    MAYER v. RUSK, SECRETARY OF STATE.
    No. 746.
    Decided June 22, 1964.

      David Carliner, Francis Heisler, Oliver Stone and Jack Wasserman for appellant.

      Solicitor General Cox for appellee.
   Per Curiam.

The judgment is vacated and the case is remanded to the District Court for consideration in light of Aptheker v. Secretary of State, ante, p. 500.

Mr. Justice Clark, Mr. Justice Harlan and Mr. Justice White would affirm the judgment.


text:
    INLAND EMPIRE BUILDERS, INC., et al. v. WASHINGTON et al.
    No. 849.
    Decided June 22, 1964.

      Seth W. Morrison for appellants in No. 849.

      T. M. Royce for appellants in No. 850.

      Edward G. Dobrin for appellants in No. 851.

      John J. O’Connell, Attorney General of Washington, John W. Riley and Timothy R. Malone, Special Assistant Attorneys General, and James A. Furber, Assistant Attorney General, for appellees.

      Solicitor General Cox, Assistant Attorney General Ober-dorfer and I. Henry Kutz filed a memorandum for the United States.

      Together with No. 850, Hebb & Narodick Construction Co., Inc., et al. v. Washington et al., and No. 851, Murray et al. v. Washington et al., both also on appeal from the same court.

   Per Curiam.

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


text:
    BOB JONES UNIVERSITY, INC., v. CITY OF GREENVILLE, SOUTH CAROLINA, et al.
    No. 1024.
    Decided June 22, 1964.

      Clarence Steele Bowen for appellant.

      Charles S. Rhyne, Brice W. Rhyne and Alfred J. Tighe, Jr. for appellees.
   Per Curiam.

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


text:
    TEXAS CO. (P. R.) INC. et al. v. SECRETARY OF THE TREASURY OF PUERTO RICO.
    No. 1048.
    Decided June 22, 1964.

      James R. Beverley for appellants.

      J. B. Fernandez Badillo, Solicitor General of Puerto Rico, and Irene Curbelo, Assistant Solicitor General, for appellee.
   Per Curiam.

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


text:
    McLEOD v. OHIO.
    No. 14, Misc.
    Decided June 22, 1964.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is vacated and the case remanded to the Supreme Court of Ohio for consideration in light of Massiah v. United States, 377 U. S. 201.

Mr. Justice Clark, Mr. Justice Harlan and Mr. Justice White dissent for the reasons assigned in the dissenting opinion in Massiah v. United States, supra, at 207.


text:
    BLAIR v. OHIO.
    No. 699, Misc.
    Decided June 22, 1964.

      Theodore R. Saker for appellant.

      Lynn B. Griffith, Jr. for appellee.
   Per Curiam.

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:
    HUDSON COUNTY NEWS CO., INC., v. SILLS, ATTORNEY GENERAL OF NEW JERSEY, et al.
    No. 1037.
    Decided June 22, 1964.

      Julius Kass for appellant.

      Arthur J. Sills, Attorney General of New Jersey, Evan William Jahos, Assistant Attorney General, and John W. Hayden, Jr., Deputy Attorney General, for appellees.

      Morris B. Abram for Council for Periodical Distributors Associations, Inc., as amicus curiae, in support of appellant.
   Per Curiam.

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


author: Per Curiam. Mr. Justice Harlan,

text:
    SMITH v. CROUSE, WARDEN.
    No. 915, Misc.
    Decided June 22, 1964.
    Petitioner pro se.

      William M. Ferguson, Attorney General of Kansas, and J. Richard Foth, 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. Douglas v. California, 372 U. S. 353.

Mr. Justice Harlan,

dissenting.

In my opinion the question whether Douglas v. California, 372 U. S. 353, should be given retroactive application is deserving of plenary consideration. Cf. my dissenting opinion in LaVallee v. Durocher, 377 U. S. 998.


text:
    RUARK v. COLORADO.
    No. 1173, Misc.
    Decided June 22, 1964.
    Petitioner pro se.

      Duke W. Dunbar, Attorney General of Colorado, Frank E. Hickey, Deputy Attorney General, and John E. Bush, 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 vacated and the case is remanded to the Supreme Court of Colorado for consideration in light of Douglas v. California, 372 U. S. 353.

Mr. Justice Harlan,

dissenting.

For the reasons stated in my dissenting opinion in Smith v. Crouse, ante, p. 584, I would set this case for argument.


text:
    PEOPLES v. UNITED STATES.
    No. 934, Misc.
    Decided June 22, 1964.
    Petitioner pro se.

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

The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is vacated and the case is remanded to the Court of Appeals for consideration in light of Fallen v. United, States, ante, p. 139.

Mr. Justice Clark, Mr. Justice Harlan and Mr. Justice Stewart dissent.


text:
    FOX et al. v. NORTH CAROLINA.
    No. 5.
    Decided June 22, 1964.

      Jack Greenberg, James M. Nabrit III, Samuel S. Mitchell, George E. Brown, William T. Coleman, Jr., Louis H. Poliak, Charles A. Reich and Spottswood W. Robinson III for petitioners.

      T. W. Bruton, Attorney General of North Carolina, and Ralph Moody, Assistant Attorney General, for respondent.
   Per Curiam.

The petition for writ of certiorari is granted, the judgment vacated and the case remanded to the Supreme Court of North Carolina for consideration in light of Robinson v. Florida, ante, p. 153.

Mr. Justice Douglas would reverse outright on the basis of the views expressed in his opinion in Bell v. Maryland, ante, p. 242.

Mr. Justice Black, Mr. Justice Harlan and Mr. Justice White dissent.


text:
    COPELAND v. SECRETARY OF STATE.
    No. 1041, Misc.
    Decided June 22, 1964.

      Leonard, B. Boudin and Victor Rabinowitz for appellant.

      Solicitor General Cox for appellee.
   Per Curiam.

The motion for leave to proceed in forma pauperis is granted. The judgment is vacated and the case is remanded to the District Court for consideration in light of Aptheker v. Secretary of State, ante, p. 500.

Mr. Justice Clark, Mr. Justice Harlan and Mr. Justice White would affirm the judgment.


text:
    ETCHIESON v. TEXAS.
    No. 1050, Misc.
    Decided June 22, 1964.

      Clyde W. Woody for petitioner.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is vacated and the case remanded to the Court of Criminal Appeals of Texas for consideration in light of Aguilar v. Texas, ante, p. 108.

Mr. Justice Black, Mr. Justice Clark and Mr. Justice Stewart dissent for the reasons assigned in the dissenting opinion in Aguilar v. Texas.


text:
    LOUDEN v. UTAH.
    No. 6,
    Misc.
    Decided October 12, 1964.

      George H. Searle for petitioner.

      A. Pratt Kesler, Attorney General of Utah, and Ronald N. Boyce, Chief 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 vacated and the case is remanded to the Supreme Court of Utah, for further proceedings in light of Stoner v. California, 376 U. S. 483.

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


text:
    DAVIS v. NEELY et ux.
    No. 68.
    Decided October 12, 1964.

      John W. Willis for appellant.

      Thomas D. Finney, Jr., and Grant W. Wiprud 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.


author: Per Curiam:

text:
    CITY OF PLANTATION v. UTILITIES OPERATING CO., INC.
    No. 72.
    Decided October 12, 1964.

      Carl A. Hiaasen for appellant.

      William E. Miller and Robert J. Corber for appellee.
   Per Curiam:

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


text:
    SCHACKMAN et al. v. CALIFORNIA.
    No. 105.
    Decided October 12, 1964.

      Burton Marks for. appellants.

      Roger Arnebergh, Philip E. Grey and Wm. E. Doran for appellee.
   Per Curiam.

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


author: Per Cüriam.

text:
    BATTISTA et al., trading as NOR-VIEW FARM v. MILK CONTROL COMMISSION OF PENNSYLVANIA.
    No. 295.
    Decided October 12, 1964.

      Frederick A. Ballard for appellants.
    ■ Walter E. Alessandroni, Attorney General of Pennsylvania, and Anthony W. Novasitis, Jr., Assistant Attorney General, for appellee.
   Per Cüriam.

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


text:
    ACCELERATED TRANSPORT-PONY EXPRESS, INC., et al. v. UNITED STATES et al.
    No. 131.
    Decided October 12, 1964.

      Bryce Rea, Jr., and Louis Lisman for appellants.

      Solicitor General Cox, Assistant Attorney General Orrick, Robert B. Hummel, Robert W. Ginnane and Betty Jo Christian for the United States et al.; W. G. Burnette for Lynchburg Traffic Bureau; Arthur A. Arsham and John J. C. Martin for National Small Shipments Traffic Conference, Inc., et al.; and John M. Cleary, John F. Donelan and Dickson R. Loos for National Industrial Traffic League, appellees.
   Per Curiam.

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


text:
    ALVAREZ v. CALIFORNIA.
    No. 46,
    Misc.
    Decided October 12, 1964.
   Per Curiam.

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


text:
    AMPCO PRINTING-ADVERTISERS’ OFFSET CORP. et al. v. CITY OF NEW YORK et al.
    No. 152.
    Decided October 12, 1964.

      Harold Riegélman and H. H. Nordlinger for appellants.

      Leo A. Larkin, Stanley Buchsbaum and Samuel J. Warms for the City of New York et al., and Louis J. Lef-kowitz, Attorney General of New York, Samuel A. Hir-showitz, First Assistant Attorney General, and Gustave Soderberg, Assistant Attorney General, for Lefkowitz, appellees.
   Per Curiam.

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


text:
    EDELL v. MACK et al.
    No. 145,
    Misc.
    Decided October 12, 1964.
   Per Curiam.

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


text:
    COOPER-JARRETT, INC., et al. v. UNITED STATES et al.
    No. 159.
    Decided October 12, 1964.

      Kenneth E. Midgley, Thomas J. Hogan, Bryce Rea, Jr., Roland Rice, Homer S. Carpenter and John S. Fessenden for appellants.

      Solicitor General Cox, Assistant Attorney General Orrick, Robert B. Hummel and Robert W. Ginnane for the United States et al.; and Carl E. Enggas, D. Robert Thomas, John F. Dorielan, Nuel D. Belnap, Harvey Huston, John A. Daily, Paul R. Duke and John M. Cleary for Eastern Railroads et al., appellees.
   Per Curiam.

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


text:
    MALONEY v. HOLDEN, JUDGE.
    No. 225,
    Misc.
    Decided October 12, 1964.
   Per Curiam.

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


text:
    WYCOFF CO., INC. v. PUBLIC SERVICE COMMISSION OF UTAH et al.
    No. 238.
    Decided October 12, 1964.

      Wayne C. Durham for appellant.

      A. Pratt Kesler, Attorney General of Utah, H. Wright Volker, Assistant Attorney General, and Keith E. Sohm for appellees.
   Per Curiam.

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


text:
    AGEE v. COLUMBUS BAR ASSOCIATION.
    No. 259.
    Decided October 12, 1964.

      George E. Tyack and Alexander H. Martin, Jr., -for appellant.

      S. Noel Melvin 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 writ of . certiorari, certiorari is denied.


text:
    YORTY et al. v. JORDAN, SECRETARY OF STATE OF CALIFORNIA.
    No. 250.
    Decided October 12, 1964.

      Roger Arnebergh, Bourke Jones and James A. Doherty for appellants.

      Stanley Mosk, Attorney General of California, Charles E. Corker and Charles A. Barrett, Assistant Attorneys General, and Sanford N. Grushin, Deputy Attorney General, for appellee.
   Per Curiam.

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


text:
    BENNETT v. COUNTY OF DADE, FLORIDA.
    No. 275,
    Misc.
    Decided October 12, 1964.
   Per Curiam.

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


text:
    JURUS v. COLUMBUS BAR ASSOCIATION.
    No. 260.
    Decided October 12, 1964.

      George E. Tyack for appellant.

      S. Noel Melvin 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 writ of certiorari, certiorari is denied.


text:
    LIND v. MINNESOTA et al.
    No. 163,
    Misc.
    Decided October 12, 1964.
    Appellant pro se.

      Walter F. Mondale, Attorney. General of Minnesota, and Charles E. Houston and Linus J. Hammond, Assistant Attorneys General, for appellees.
   Per Curiam.

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


text:
    FORD v. LOUISIANA.
    No. 329.
    Decided October 12, 1964.

      Floyd J. Reed for appellant.
   Per Curiam.

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:
    McILVAINE et al. v. LOUISIANA.
    No. 21,
    Misc.
    Decided October 12, 1964.

      Maurice R. Woulfe for petitioners.

      Jim Garrison 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 vacated and the case is remanded to the Supreme Court of Louisiana for further consideration in light of Aguilar v. Texas, 378 U. S. 108.

Mr. Justice Black dissents.


text:
    WASMUTH et al. v. ALLEN, COMMISSIONER OF EDUCATION OF NEW YORK, et al.
    No. 402.
    Decided October 12, 1964.

      C. Dickerman Williams for appellants.

      Louis J. Lejkowitz, Attorney General of New York, and Paxton Blair, Solicitor General, for appellees.
   Per Curiam.

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


text:
    WRIGHT v. ILLINOIS.
    No. 273,
    Misc.
    Decided October 12, 1964.
    Appellant pro se.

      Daniel P. Ward and Elmer C. Kissane 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 writ of certiorari, certiorari is denied.


text:
    CEPERO v. PRESIDENT OF THE UNITED STATES et al.
    No. 176,
    Misc.
    Decided October 12, 1964.
   Per Curiam.

The appeal is dismissed.

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


text:
    BINZ v. HELVETIA FLORIDA ENTERPRISES, INC.
    No. 181,
    Misc.
    Decided October 12, 1964.

      Guión T. De Loach for appellant.

      Lewis Horwitz for appellee.
   Per Curiam.

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


text:
    GAGER v. KASDON.
    No. 195,
    Misc.
    Decided October 12, 1964.
    Appellant pro se.

      Hillel Abrams for appellee.
   Per Curiam.

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


text:
    SAFEWAY TRAILS, INC. v. FURMAN et al.
    No. 228.
    Decided October 19, 1964.

      William A. Roberts and Morris J. Levin for appellant.

      Arthur J. Sills, Attorney General of New Jersey, and Alan B. Handler, First Assistant Attorney General, 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:
    ALHAMBRA TRUCKING CO. et al. v. PUBLIC UTILITIES COMMISSION OF CALIFORNIA.
    No. 288.
    Decided October 19, 1964.

      Frederick M. Rowe for appellants.

      Mary Moran Pajalich for appellee.
   Per Curiam.

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


text:
    DIXIE FEED & SEED CO., INC., et al. v. BYRD.
    No. 311.
    Decided October 19, 1964.

      W. Neil Thomas, Jr., for appellants.

      H. Keith Harber for appellee.
   Per Curiam.

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


text:
    BOINEAU et al. v. THORNTON, SECRETARY OF STATE OF SOUTH CAROLINA, et al.
    No. 483.
    Decided October 19, 1964.

      Ralph E. Becker for appellants.

      Daniel R. McLeod, Attorney General of South Carolina, and Clarence T. Goolsby, Jr., and Everett N. Brandon, Assistant Attorneys General, for appellees.
   Per Curiam.

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


text:
    BOHMAN v. CITY OF BOSTON REAL ESTATE COMMISSION.
    No. 312,
    Misc.
    Decided October 19, 1964.
   Per Curiam.

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


text:
    BOHMAN v. PEUTUCKET FIVE CENT SAVING BANK.
    No. 313,
    Misc.
    Decided October 19, 1964.
   Per Curiam.

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


text:
    MAMULA v. UNITED STEELWORKERS OF AMERICA et al.
    No. 327.
    Decided October 19, 1964.

      Harry Alan Sherman for appellant.

      David E. Feller, Elliot Bredhoff, Jerry D. Anker, Michael H. Gottesman and Ernest G. Nassar 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.

Mr. Justice Brennan is of the opinion that the appeal should be dismissed, but that in treating the papers as a petition for writ of certiorari, certiorari should be granted.

Mr. Justice Goldberg took no part in the consideration or decision of this appeal.


text:
    GIOVA v. ROSENBERG, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE.
    No. 23.
    Decided October 26, 1964.

      Fred Okrand for petitioner.

      Solicitor General Cox, Assistant Attorney General Miller and Philip R. Monahan for respondent.
   Per Curiam.

Upon consideration of the submission of the United Stated that the judgment of the Court of Appeals should be reversed and the cause remanded with directions to entertain the petition for review, and upon examination of the entire record, the judgment is reversed and the case is remanded to the Court of Appeals with directions to entertain the petition for review.


text:
    TANCIL et al. v. WOOLLS et al., JUDGES.
    No. 386.
    Decided October 26, 1964.

      Allison W. Brown, Jr., for appellants in No. 386 and for appellees in No. 412.

      Robert F. Button, Attorney General of Virginia, R. D. Mcllwaine III, Assistant Attorney General, William J. Hassan and Ralph G. Louk for appellants in No. 412.

       Together with No. 412, Virginia Board of Elections et al. v. Hamm et al., also on appeal from the same court.

   Per Curiam.

. The motion to affirm in No. 412 is granted and the judgment in both cases is affirmed.

Mr. Justice Harlan is of the opinion that probable jurisdiction should be noted in both cases.

Mr. Justice Brennan is of the opinion that probable jurisdiction should be noted in No. 386.


text:
    SHIPE et al. v. BRENNAN.
    No. 353.
    Decided October 26, 1964.

      Wilhelm E, Shissler for appellants.

      James W. Evans for appellee.
   Per Curiam.

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


author: Mr. Justice Douglas Mr. Justice Harlan,

text:
    NATIONAL LABOR RELATIONS BOARD v. BURNUP & SIMS, INC.
    No. 15.
    Argued October 15, 1964.
    Decided November 9, 1964.

      Arnold Ordman argued the cause for petitioner. With him on the brief were Solicitor General Cox, Dominick L. Manóli and Norton J. Come.

      Erie Phillips argued the cause and filed a brief for respondent.
   Mr. Justice Douglas

delivered the opinion of the Court.

Two employees in respondent’s plant, Davis and Harmon, undertook to organize the employees who worked there. The Superintendent was advised by another employee, one Pate, that Davis and Harmon, while soliciting him for membership in the union, had told him the union would use dynamite to get in if the union did not acquire the authorizations. Respondent thereafter discharged Davis and Harmon because of these alleged statements. An unfair labor practice proceeding was brought. The Board held that the discharges violated §§' 8 (a)(1) and 8 (a) (3) of the Act,61 Stat. 136,140-141,29 U. S. C. §§ 158 (a)(1) and (a)(3). It found that Pate’s charges against Davis and Harmon were untrue and that they had actually made no threats against the company’s property; and it concluded that respondent’s honest belief in the truth of the statement was not a defense. 137 N. L. R. B. 766, 772-773.

The Court of Appeals refused reinstatement of Davis and Harmon, holding that since the employer acted in good faith, the discharges-were not unlawful. 322 F. 2d 57. We granted the petition for certiorari because of a conflict among the. Circuits. Cf. with the opinion below Labor Board v. Industrial Cotton Mills, 208 F. 2d 87; Labor Board v. Cambria Clay Products Co., 215 F. 2d 48; Cusano v. Labor Board, 190 F. 2d 898.

We find it unnecessary to reach the questions raised under § 8 (a)(3) for we are of the view that in thé context of this record § 8 (a)(1) was plainly violated, whatever the employer’s motive. Section 7 grants employees, inter alia, “the right to self-organization, to form, join, or assist labor organizations.” Defeat of those rights by employer action does not necessarily depend on the existence of an anti-union bias. Over and again the Board has ruled that §8 (a)(1) is violated if an employee is discharged for misconduct arising out of a protected activity, despite the employer’s good faith, when it is shown that the misconduct never occurred. See, e. g., Mid-Continent Petroleum Corp., 54 N. L. R. B. 912, 932-934; Standard Oil Co., 91 N. L. R. B. 783, 790-791; Rubin Bros. Footwear, Inc., 99 N. L. R. B. 610, 611. In sum, § 8 (a) (1). is violated if it is shown that the discharged employee was at the time engaged in a protected activity, that the employer knew it was such, that the basis of the discharge was an alleged act of misconduct in the course of that activity, and that the employee was not, in fact, guilty of that misconduct.

That rule seems to us to be in conformity with the policy behind §8 (a)(1). Otherwise the protected activity would lose some of its immunity, since the example of employees who are discharged on false charges would or might have a deterrent effect on other employees. Union activity often engenders strong emotions and gives rise to active rumors. A protected activity acquires a precarious status if innocent employees can be discharged while engaging in it, even though the employer acts in good faith. It is the tendency of those discharges to weaken or destroy the § 8 (a)(1) right that is controlling. We are not in the realm of managerial prerogatives. Rather we are concerned with the manner of soliciting union membership over which the Board has been entrusted with powers of surveillance. See Garment Workers v. Labor Board, 366 U. S. 731, 738-739; Labor Board v. Erie Resistor Corp., 373 U. S. 221, 228-229. Had the alleged dynamiting threats been wholly disassociated from § 7 activities quite different considerations might apply.

Reversed.

Mr. Justice Harlan,

concurring in part and dissenting in part.

Both the rule adopted by the lower court and that now announced by this Court seem to me unacceptable. On the one hand, it impinges on the rights assured by §§ 7 and 8 (a)(1) to hold, as the Court of Appeals did, that the employee must bear the entire brunt of his honest, but mistaken, discharge. On the other hand, it is hardly fair that the employer should be faced with the choice of risking damage to his business or incurring a penalty for taking honest action to thwart it.

Between these two one-way streets lies a middle two-way course: a rule which would require reinstatement of the mistakénly discharged employee- and back pay only as of the time that the employér learned, or should have learned, of his mistake, subject, however, to a valid business reason for refusing reinstatement. Such a rule gives offense neither to any policy of the statute nor to the dictates of fairness to the employer, and in my opinion represents a reasonable accommodation between the two inflexible points of view evinced by the opinions below and here.

Since I do not believe that this case presents the rare situation in which the Board can ignore motive,1 would vacate the judgment of the Court of Appeals and remand the case to the Board for further appropriate proceedings in light of what I believe to be the proper rule.

       Sections 8 (a)(1) and (3) .read as follows:
      “It shall be an unfair labor practice for an employer—
      “(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7;
      “(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization . . . .”

       As an alternative ground for its finding that the Act had been violated) the Board held that Pate’s allegation was merely “seized up [on]” by the respondent as an “excuse” for the discharges of Davis and Harmon. 137 N. L. R. B. 766, 772-773. The Court of Appeals, however, rejected without discussion this suggestion of the existence of anti-union bias. 322 F. 2d 57, 59, 61. In its petition for writ of certiorari the Board expressly stated that “The propriety of this action [by the Court of Appeals] is not questioned here.” In fight of this concession it is unnecessary for us to determine whether the Board’s alternative finding of a discriminatory motivation is supported by substantial evidence.

       The Rubin Bros, case made a qualification as to burden of proof. Prior thereto the burden was on the employer to prove that the discharged employee was in fact guilty of the misconduct. Rubin Bros, said that “once such an honest belief is established', the General Counsel must go forward with evidence to prove that the employees did not, in fact, engage in such misconduct.” 99 N. L. R. B., at 611.

       As for example, if a replacement.had been hired and the discharged employee unduly delayed in apprising the employer of the mistake.

       See Teamsters Local v. Labor Board, 365 U. S. 667, 677 (1961) (concurring opinion). Respondent here had a significant business justification — to avoid dynamiting of a silo — for discharging the employees, unlike the situations presented in Allis-Chalmers Mfg. Co. v. Labor Board, 162 F. 2d 435; Cusano v. Labor Board, 190 F. 2d 898, and Labor Board v. Industrial Cotton Mills, 208 F. 2d 87. See Teamsters Local, supra, at 680.
      In Allis-Chalmers the employer downgraded the status of plant inspectors after they had voted to join a union, and it was apparent that the employer acted only because of the inspectors’ membership in the union. There was no business justification for the employer’s action except for his feeling that union members should not exercise supervisory powers and the Board was therefore justified in treating this as an unfair labor practice without a specific finding of discriminatory motive.

        Cusano involved a mistaken belief by the employer that an employee had made a misstátement about company profits, which might well have been protected campaign “oratory” even if the employee had made the misstatement. Since the employer could simply have denied the truth of the profit figures, there was no business justification for discharging the employee.

        Industrial Cotton Mills presents- the closest analogy to the case before us. There an employee was refused reinstatement following a strike for alleged strike misconduct — throwing tacks on the street during a strike — which he did not commit. The Court of Appeals recognized the special congressional concern for the right to strike embodied in §§ 2 (3) and 13 of the Act, and held that the employer’s lack of antiunion motive was irrelevant. There was also little-business justification for punishing the employee after the strike had ended, unlike the fear in this case of future sabotage by the employees.


text:
    BROTHERHOOD OF RAILWAY & STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS & STATION EMPLOYES v. UNITED AIR LINES, INC.
    No. 31.
    Argued October 22, 1964.
    Decided November 9, 1964.

      James L. Highsaw, Jr., argued the cause for petitioner. With him on the briefs was Edward J. Hickey, Jr.

      Stuart Bernstein argued the cause for respondent. With him on the brief were H. Templeton Brown and Robert L. Stern.

      Solicitor General Cox, by special leave of Court, argued the cause for the United States, as amicus curiae, urging reversal. With him on the brief were Assistant Attorney General Douglas and Alan S. Rosenthal.

   Per Curiam.

The writ of certiorari is dismissed as improvidently granted.

Mr. Justice Harlan, believing that the questions which brought this case here should be decided, dissents from the dismissal of the writ.

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


text:
    HOOPER v. DUNCAN, SUPERINTENDENT, DEPARTMENT OF LIQUOR LICENSES AND CONTROL OF ARIZONA, et al.
    No. 393.
    Decided November 9, 1964.

      Alfred C. Marquez for appellant.
   Per Curiam.

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


text:
    ALBAUGH v. TAWES, GOVERNOR OF MARYLAND, et al.
    No. 481.
    Decided November 9, 1964.
   Per Curiam.

The judgment is affirmed.


text:
    TRAUTWEIN et al. v. COMMUNITY REDEVELOPMENT AGENCY OF LOS ANGELES.
    No. 416.
    Decided November 9, 1964.

      Frank Wickhem for appellants in No. 416.
    Appellants pro se in No. 426.

      Henry O. Duque for appellee in both cases.

      Austin Clapp for John Swigart et al., as amici curiae, in support of appellants in No. 426.

       Together with No. 426, Goldman et ux. v. Community Redevelopment Agency of Los Angeles, also on appeal from the same court.

   Per Curiam.

The motion of John Swigart et al., for leave to file a brief as amici curiae in No. 426 is granted. The motions to dismiss are granted and the appeals are dismissed for want of jurisdiction. Treating the papers whereon the appeals were taken as petitions for writs of certiorari, certiorari is denied.


text:
    DENMAN et ux. v. WHITE, SECRETARY OF STATE OF MASSACHUSETTS, et al.
    No. 379,
    Misc.
    Decided November 9, 1964.
   Per Curiam.

The appeal is dismissed.