author: Mr. Justice White

text:
    LEH et al. v. GENERAL PETROLEUM CORP. et al.
    No. 4.
    Argued October 11, 1965.
    Decided November 8, 1965.

      Richard O. Harris argued the cause for petitioners. With him on the brief was Maxwell Keith.

      Francis R. Kirkham argued the cause for respondents. With him on the brief were Jack E. Woods, Moses Lasky,

      Edmund- D. Buckley, Wayne H. Knight, Howard Painter, William E. Mussman, Thomas E. Haven, and George W. Jansen.

   Mr. Justice White

delivered the opinion of the Court.

On September 28, 1956, petitioners, a partnership engaged in wholesale distribution of refined petroleum products and one of the partners, filed in the Southern District of California a treble-damage action charging violations of §§ 1 and 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. §§ 1, 2 (1964 ed.), against seven companies engaged in producing, refining, and marketing gasoline and other hydrocarbon substances in interstate commerce. Defendants contended that the action was barred by the California one-year statute of limitations applicable to suits for statutory penalties or forfeitures, Cal. Code Civ. Proc. §340 (1). Plaintiffs conceded that their cause of action accrued no later than February 1954, and that the four-year limitation provision added to the Clayton Act in 1955, Clayton Act § 4B, 69 Stat. 283, 15 U. S. C. § 15b (1964 ed.), was not applicable to a right of action accruing in 1954. But plaintiffs contended that the governing provision was the California three-year statute of limitations respecting actions on a statutory Lability other than a penalty, Cal. Code Civ. Proc. § 338 (1), and that in any event the running of the statute of limitations was tolled by § 5 (b) of the Clayton Act, 38 Stat. 731, as amended, 15 U. S. C. § 16 (b) (1964 ed.), because of a civil antitrust proceeding that was commenced by the United States in 1950 and was still pending when plaintiffs filed their complaint. Section 5 (b) provides that during the pendency of a civil or criminal proceeding instituted by the United States to prevent, restrain, or punish violations of any of the antitrust laws, the running of the statute of limitations shall be suspended in respect of every private right of action “based in whole or in part on any matter complained of in said proceeding.” The lower courts upheld the defense of limitations and dismissed the complaint, holding that the one-year statute governed and that plaintiffs were not entitled to the benefit of § 5 (b). 208 F. Supp. 289 (D. C. S. D. Cal. 1962), aff’d, 330 F. 2d 288 (C. A. 9th Cir. 1964). We granted certiorari limited to the question of the applicability of § 5 (b), 379 U. S. 877, because of an apparent conflict between this case and Union Carbide & Carbon Corp. v. Nisley, 300 F. 2d 561 (C. A. 10th Cir. 1962), dismissed under Rule 60 sub nom. Wade v. Union Carbide & Carbon Corp., 371 U. S. 801, concerning interpretation of the statutory requirement that the private action for which the benefit of the tolling provision is sought be “based in whole or in part on any matter complained of” in the government proceeding. We conclude that the lower courts misapplied § 5 (b), and we reverse the judgment below.

Prior to the present case, the Court of Appeals for the Ninth Circuit had declared a restrictive interpretation of § 5 (b). In Steiner v. 20th Century-Fox Film Corp., 232 F. 2d 190 (1956), that court ruled that the scope of § 5 (b).was determined by the-principles of collateral estoppel applicable under § 5 (a) of the Clayton Act, as amended, 69 Stat. 283, 15 U. S. C. § 16 (a) (1964 ed.), which provides that a final judgment or decree rendered in a suit by the United States and holding a defendant in violation of the antitrust laws shall be prima facie evidence in a private antitrust action against such defendant “as to all. matters respecting which said judgment or decree would be an estoppel as between the parties thereto.” Accordingly, the court declared in Steiner that “[a] greater similarity is needed than that the same conspiracies are alleged. The same means must be used to achieve the same objectives of the same conspiracies by the same defendants.” 232 F. 2d, at 196. In the present case the Court of Appeals purported to follow Steiner and concluded that the running of the statute of limitations was not suspended because here, in the court’s opinion, “there were not only different overt acts charged, but different conspiracies, occurring at different times, between different parties.” 330 F. 2d, at 301; see also 208 F. Supp., at 294 — 295. Conflicting with Steiner and the present case is Union Carbide & Carbon Corp. v. Nisley, supra, which held that the evidentiary rules of estoppel are not determinative and that the running of the period of limitations is tolled by § 5 (b) if there is “substantial identity of subject matter.” 300 F. 2d, at 570.

Minnesota Mining & Mfg. Co. v. New Jersey Wood Finishing Co., 381 U. S. 311, which was decided in the interim between the granting of certiorari and oral argument in the present case, establishes certain basic principles for the construction of § 5 (b) that are to be followed here. The questions presented for decision in Minnesota Mining were whether proceedings by the Federal Trade Commission under § 7 of the Clayton Act, 38 Stat. 731, as amended, 15 U. S. C. § 18 (1964 ed.), activate § 5 (b) to the same extent as judicial proceedings and, if so, whether the claim of New Jersey Wood, the private plaintiff, was based on “any matter complained of” in the Commission action. One of the arguments advanced with respect to the first question was that Commission proceedings did not suspend the running of limitations because, it was asserted, any Commission order that might issue would not be admissible under § 5 (a). We rejected this contention that § 5 (a) and § 5 (b) were coextensive.

“It may be . . . that when it was enacted the tolling provision was a logical backstop for the prima facie evidence clause of § 5 (a). But even though § 5 (b) complements § 5 (a) in this respect by permitting a litigant to await the outcome of government proceedings and use any judgment or decree rendered therein ... it is certainly not restricted to that effect. As we have pointed out, the textual distinctions as well as the policy basis of § 5 (b) indicate that it was to serve a more comprehensive function in the congressional scheme of things. The Government’s initial action may aid the private litigant in a number of other ways. The pleadings, transcripts of testimony, exhibits and documents are available to him in most instances. . . . Moreover, difficult questions of law may be tested and definitively resolved before the private litigant enters the fray. The greater resources and expertise of the Commission and its staff render the private suitor a tremendous benefit aside from any value he may derive from a judgment or decree. Indeed, so useful is this service that government proceedings are recognized as a major source of evidence for private parties.” 381 U. S., at 319.

Minnesota Mining sweeps away much of the foundation for the Steiner view of the scope of § 5 (b). The private plaintiff is not required to allege that the same means were used to achieve the same objectives of the same conspiracies by the same defendants. Rather, effect must be given to the broad terms of the statute itself — “based in whole or in part on any matter complained of” (emphasis added) — read in light of Congress’ “belief that private antitrust litigation is one of the surest weapons for effective enforcement of the antitrust laws.” 381 U. S., at 318. Doubtlessly, care must be exercised to insure that reliance upon the government proceeding is not mere sham and that the matters complained of in the government suit bear a real relation to the private plaintiff’s claim for relief. But the courts must not allow a legitimate concern that invocation of § 5 (b) be made in good faith to lead them into a niggardly construction of the statutory language here in question. With those matters in mind we now turn to a comparison of plaintiffs’ complaint with the complaint in the government proceeding on which plaintiffs rely, United States v. Standard Oil Co. of California, Civil No. 11584-C, D. C. S. D. Cal.

The complaint of the United States charged that seven petroleum companies and the Conservation Committee of California Oil Producers had conspired together to restrain and to monopolize interstate commerce in the Pacific States area in violation of §§ 1 and 2 of the Sherman Act, beginning in or about the year 1936, and continuing up to and including the date suit was filed in 1950. The complaint divided the conspiracy into two principal branches: (1) agreement by the defendants to eliminate competition among themselves in the Pacific States area and (2) agreement by the defendants to utilize their control of the production, transportation, refining, and marketing of crude oil and refined petroleum products to restrict and to eliminate the competition of independent producers, refiners and marketers in the Pacific States area. In furtherance of the first branch of the conspiracy, the complaint further charged, defendants had conspired to do and had actually accomplished the following things, among others: sharing wholesale and retail markets with each other by selling gasoline and other refined petroleum products at identical prices, thus confining effective competition among themselves to the advertising of brand names and to the offering of free services in their retail outlets; fixing and maintaining uniform and noncompetitive prices for the sale of gasoline and other refined petroleum products at wholesale and at retail; refusing to sell their petroleum products to any wholesale or retail distributor who failed or refused to follow the prices fixed by them; and refusing to sell their petroleum products to any wholesale distributor, jobber, or retail dealer except on a “full-requirements” or “exclusive-dealer” basis. Among acts and agreements charged as having been accomplished in furtherance of the second branch of the conspiracy were the following: coercing independent producers into limiting production of crude oil through production quotas established by the defendant Conservation Committee; limiting the supply of crude oil available to independent refiners and refusing to sell crude oil to such refiners; acquiring control of independent refiners; inducing independent refiners to shut down their productive capacity or to dismantle their refining facilities in return for an agreement to furnish such independent refiners with their full requirements of gasoline and other refined petroleum products; foreclosing independent wholesale and retail markets otherwise available to the independent refiners by requiring independent jobbers, wholesalers, and retailers to handle exclusively the refined petroleum products of defendants.

Plaintiffs’ amended complaint in the present case also charged a conspiracy to violate §§ 1 and 2 of the Sherman Act. The period of the conspiracy of which plaintiffs complained varied somewhat from that charged in the government action, plaintiffs alleging that the conspiracy herein commenced in or about the year 1948 (the year in which plaintiffs commenced business) and continued until the date of the filing of the complaint in 1956. The defendants were the same as those in the government proceeding, except that Shell Oil Company and the Conservation Committee of California Oil Producers were named as defendants in the government suit and were not defendants here, and Olympic Oil Company was named as a defendant here and was not a defendant in the government proceeding. The complaint charged that defendants had agreed to restrain and to monopolize the wholesale and retail distribution of refined gasoline throughout the southern California area by excluding independent jobbers from such distribution and by eliminating the jobbers’ customers, i. e., retail outlets, and preventing those customers from competing with retail outlets owned and operated by defendants. In particular, defendants were alleged to have accomplished their unlawful purposes by the following acts: controlling the sale and distribution of refined gasoline in the southern California area; denying independent jobbers access to a source of supply of refined gasoline; preventing independent jobbers from obtaining refined gasoline from other sources; preventing the customers of independent jobbers from obtaining gasoline with which to compete with retail service stations and outlets operated or controlled by defendants; maintaining fixed, artificial, and noncompetitive prices for the wholesale and retail sale of refined gasoline in the southern California area and fixing the price at which gasoline would be sold, if at all, to independent dealers and jobbers; and generally controlling the sources of refined gasoline in the southern California area and preventing and precluding independent jobbers from obtaining a source of supply. Plaintiffs claimed injury to their independent jobber business through a loss of profits resulting from price-fixing and from the destruction of their business because of the termination of their source of supply.

The lower courts found that plaintiffs’ complaint was not based in whole or in part on any matter complained of in the government proceeding principally because of the differences in the defendants named in the two suits and in the period of the conspiracies alleged. See 330 F. 2d, at 301; 208 F. Supp., at 294-295. We cannot agree that these differences bar resort to the tolling provision in this case.

Here too we may find guidance in Minnesota Mining. In that case, the plaintiff, a manufacturer of electrical insulation materials, brought suit against Minnesota Mining and Manufacturing Company and the Essex Wire Corporation, the complaint alleging violations of § 7 of the Clayton Act and §§ 1 and 2 of the Sherman Act. The substance of the complaint concerned the acquisition by Minnesota Mining from Essex of Insulation and Wires, Inc., which thereafter ceased to distribute plaintiff’s products, and an alleged conspiracy between Minnesota Mining and Essex to restrain trade in electrical insulation products. The action upon which plaintiff relied as suspending the running. of limitations was a Federal Trade Commission proceeding under § 7 against Minnesota Mining but not against Essex. Essex was not a party to the interlocutory appeal in the private action and no contention was made here that the difference in parties prevented tolling of limitations as to Minnesota Mining. Minnesota Mining did argue that because of the greater burden of proof under the Sherman Act, plaintiff’s Sherman Act claims could not be held to be based in part on any matter complained of in the Clayton Act proceeding before the Commission. This Court found that “both suits set up substantially the same claims,” 381 U. S., at 323, and rejected Minnesota Mining’s argument.

Just as in Minnesota Mining the differences between Sherman Act and Clayton Act proceedings were held not to require the conclusion that the private action under the Sherman Act was not based in part on any matter complained of in the Government’s § 7 suit, so here we cannot conclude that a private claimant may invoke § 5 (b) only if the conspiracy of which he complains has the same breadth and scope in time and participants as the conspiracy described in the government action on which he relies. Here there is substantial identity of parties, six of the seven defendants in this case being defendants in the government suit as well. In suits of this kind, the absence of complete identity of defendants may be explained on several grounds unrelated to the question of whether the private claimant’s suit is based on matters of which the Government complained. In the interim between the filing of the two actions it may have become apparent that a party named as a defendant by the Government was in fact not a party to the antitrust violation alleged. Or the private plaintiff may prefer to limit his suit to the defendants named by the Government whose activities contributed most directly to the injury of which he complains. On the other hand, some of the conspirators whose activities injured the private claimant may have been too low in the conspiracy to be selected as named defendants or co-conspirators in the Government’s necessarily broader net. The overlap in the time periods of the two conspiracies is less complete, but this disparity is equally without significance. That plaintiffs alleged a conspiracy corresponding in time to the period during which they were in business obviously does not mean that this conspiracy is not based in part on matters complained of by the Government. Nor can that conclusion be drawn from the fact that plaintiffs focus on the southern California area, which is only a part of the Pacific States area with which the Government was concerned.

It is obvious from a comparison of the two complaints that plaintiffs’ suit is based in part on matters of which the Government complained. The Government charged that defendants had conspired to eliminate the competition of independent marketers; plaintiffs charged a conspiracy to eliminate independent jobbers and retailers. Both the plaintiffs and the Government alleged that defendants had fixed prices at wholesale and at retail. The Government alleged that defendants had conspired to eliminate the competition of independent refiners by acquiring such refiners, limiting the supply of crude oil available to them, and inducing them to shut down their refining facilities; plaintiffs complained that defendants had denied them a source of supply and prevented them from obtaining gasoline from other sources. To require more detailed duplication of claims would be to resurrect the collateral estoppel approach declared in Steiner and rejected by this Court in Minnesota Mining.

Defendants contend, however, that during the extensive discovery proceedings that preceded the ruling on the motion to dismiss, plaintiffs made certain concessions establishing that, whatever the complaint may allege, plaintiffs’ claim in fact is not based at all on any matter complained of by the Government in Standard Oil. Plaintiffs’ real claim, defendants say, is that they had an arrangement with Olympic Refining Company under which they were to be supplied with gasoline as long as Olympic was in turn supplied by defendant General Petroleum Corporation, that defendant Standard Oil Company of California replaced General Petroleum Corporation as Olympic’s supplier in February 1954, and that plaintiffs’ supply was thereby terminated. The attorney for plaintiffs stated in a hearing before the trial court that General Petroleum Corporation had the absolute right to terminate its supply to Olympic at any time and that if General had in this case done so unilaterally plaintiffs would not be in court. But plaintiffs contended that defendants conspired together to effect the termination of General’s supplier relationship with Olympic. Defendants argue that this conspiracy to terminate a particular supply contract is far removed from the matters with which the government complaint was concerned.

In general, consideration of the applicability of § 5 (b) must be limited to a comparison of the two complaints on their face. Obviously suspension of the running of the statute of limitations pending resolution of the government action may not be made to turn on whether the United States is successful in proving the allegations of its complaint. Minnesota Mining & Mfg. Co. v. New Jersey Wood Finishing Co., 381 U. S. 311, 316. Equally, the availability of § 5 (b) to the private claimant may not be made dependent on his ability to prove his case, however fatal failure may prove to his hopes of success on the merits.

Moreover, defendants’ argument contains a basic flaw in that it does not take account of all that plaintiffs’ counsel said. The relationship between plaintiffs and General was one of subdistributorship, and there were accordingly two levels in the chain of distribution between General and the ultimate retail outlet. Plaintiffs claimed, counsel said, that pressure was exerted to terminate the relationship between General and Olympic, and thereby between Olympic and plaintiffs, as the result of an industry commitment to do away with subdistribu-torship operations “because the sub-distributorship could not be controlled. The gasoline could be controlled, obviously, when General Petroleum sold it directly at retail. The gasoline could be controlled if you had a good company as opposed to a bad company, which was acting as a distributor. But the gasoline could not be controlled when it went to the sub-distributorship level.” Clearly this is a claim that in order to obtain and to maintain control of distribution and retail marketing, including the control and fixing of uniform wholesale and retail prices of which the government action complained, defendants agreed to tighten control of the chain of distribution through elimination of independent jobbers acting as subdistributors. Counsel’s statements simply filled out the details of the general allegations of the complaint.

As we have concluded that the running of the statute of limitations was suspended, the judgment must be

Reversed.

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

       Section 5 (b), 15 U. S. C. § 16 (b), provides:
      “(b) Whenever any civil or criminal proceeding is instituted by the United States to prevent, restrain, or punish violations of any of the antitrust laws, but not including an action under section 15a of this title, the running of the statute of limitations in respect of every private right of action arising under said laws and based in whole or in part on any matter complained of in said proceeding shall be suspended during the pendency thereof and for one year thereafter: Provided, however, That whenever the running of the statute of limitations in respect of a cause of action arising under section 15 of this title is suspended hereunder, any action to enforce such cause of action shall be forever barred unless commenced either within the period of suspension or within four years after the cause of action accrued.”

       Section 5 (a), 15 U. S. C. § 16 (a), provides:
      “(a) A final judgment or decree heretofore or hereafter rendered in any civil or criminal proceeding brought by or on behalf of the United States under the antitrust laws to the effect that a defendant has violated said laws shall be prima facie evidence against such defendant in any action or proceeding brought by any other party against such defendant under said laws or by the United States under section 15a of this title, as to all matters respecting which said judgment or decree would be an estoppel as between the parties thereto: Provided, That this section shall not apply to consent judgments or decrees entered before any testimony has been taken or to judgments or decrees entered in actions under section 15a of this title.”
      See generally Emich Motors Corp. v. General Motors Corp., 340 U. S. 558.

       The case has since been terminated by consent judgments entered into by all defendants except the Conservation Committee of California Oil Producers and Texaco, Inc., as to each of which the case was dismissed. See 1958 CCH Trade Cases, ¶ 69,212; 1959 CCH Trade Cases, If 69,240; 1959 CCH Trade Cases, ¶ 69,399.

       Olympic was dismissed from the case prior to the ruling on defendants’ statute of limitations defense.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    ANDREWS VAN LINES, INC., et al. v. UNITED STATES et al.
    No. 438.
    Decided November 8, 1965.

      J. Max Harding for appellants.

      Solicitor General Marshall, Assistant Attorney General Turner, Robert B. Hummel, Gerald Kadish, Robert W. Ginnane and Thomas H. Ploss for the United States et al.
   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:
    McGEE v. CROUSE, WARDEN.
    No. 550,
    Misc.
    Decided November 8, 1965.
   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:
    RICHMOND TELEVISION CORP. v. UNITED STATES.
    No. 420.
    Decided November 8, 1965.

      Robert T. Barton, Jr., for petitioner.

      Solicitor General Marshall and Acting Assistant Attorney General Roberts for the United States.
   Per Curiam.

The petition for writ of certiorari is granted. In the light of the representations of the Solicitor General, and an independent examination of the record, we believe . that the Court of Appeals for the Fourth Circuit was mistaken in its view that the petitioner’s amortization claims for the taxable years 1956 and 1957 were not properly before it. Although the record is not free from ambiguity, we take the Court of Appeals to have based its decision on the ground that the petitioner’s amortization claims derived solely from net operating loss deductions carried forward from prior years, and that no additional amortization deductions for 1956 and 1957 were sought. Since we find that the petitioner adequately presented its amortization claims for 1956 and 1957, we vacate the judgment of the Court of Appeals and remand the case to .that court for the consideration of those claims, without intimation of any kind as to their merit.


text:
    MILLAN-GARCIA v. IMMIGRATION AND NATURALIZATION SERVICE.
    No. 369,
    Misc.
    Decided November 8, 1965.
    Petitioner pro se.

      Solicitor General Marshall, Assistant Attorney General Vinson, Beatrice Rosenberg and Julia P. Cooper 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 Court of Appeals upon examination of the entire record and in light of the representations of the Solicitor General that the petitioner will be afforded an opportunity to apply for citizenship and that there will be no deportation proceedings until such determination.


author:
MR. Justice Brennan
      Mr. Justice Black Mr. Justice Clark,

text:
    ALBERTSON et al. v. SUBVERSIVE ACTIVITIES CONTROL BOARD.
    No. 3.
    Argued October 18, 1965.
    Decided November 15, 1965.

      John J. Abt argued the cause for petitioners. With him on the briefs was Joseph Forer.

      Kevin T. Maroney argued the cause for respondent. With him on the brief were Solicitor General Marshall, Assistant Attorney General Yeagley, Nathan Lewin, George B. Searls and Lee B. Anderson.

    Briefs of amici curiae were filed by Osmond K. Fraenkel for the American Civil Liberties Union, and by Ernest Goodman for the National Lawyers Guild.
   MR. Justice Brennan

delivered the opinion of the Court.

The Communist Party of the United States of America failed to register with the Attorney General as required by the order of the Subversive Activities Control Board sustained in Communist Party of the United States v. SACB, 367 U. S. I. Accordingly, no list of Party members was filed as required by § 7 (d) (4) of the Subversive Activities Control Act of 1950, 64 Stat. 993-994, 50 U. S. C. § 786 (d)(4) (1964 ed.). Sections 8(a) and (c) of the Act provide that, in that circumstance, each member of the organization must register and file a registration statement; in default thereof, § 13 (a) authorizes the Attorney General to petition the Board for an order requiring the member to register. The Attorney General invoked § 13 (a) against petitioners, and the Board, after evidentiary hearings, determined that petitioners were Party members and ordered each of them to register pursuant to §§ 8 (a) and (c). Review of the orders was sought by petitioners in the Court of Appeals for the District of Columbia Circuit under § 14 (a). The Court of Appeals affirmed the orders, 118 U. S. App. D. C. 117, 332 F. 2d 317. We granted certiorari, 381 U. S. 910. We reverse.

I.

Petitioners address several constitutional challenges to the validity of the orders, but we consider only the contention that the orders violate their Fifth Amendment privilege against self-incrimination.

The Court of Appeals affirmed the orders without deciding the privilege issue, expressing the view that under our decision in Communist Party, 367 U. S., at 105-110, the issue was not ripe for adjudication and would be ripe only in a prosecution for failure to register if the petitioners did not register. 118 U. S. App. D. C., at 121-123, 332 F. 2d, at 321-323. We disagree. In Communist Party the Party asserted the privilege on behalf of unnamed officers — those obliged to register the Party and those obliged “to register for” the Party if it failed to do so. The self-incrimination claim asserted on behalf of the latter officers was held premature because the Party might choose to register and thus the duty of those officers might never arise. Here, in contrast, the contingencies upon which the members’ duty to register arises have already matured; the Party did not register within 30 days after the order to register became final and the requisite 60 days since the order became final have elapsed. As to the officers obliged to register the Party, Communist Party held that the self-incrimination claim asserted on their behalf was not ripe for adjudication because it was not known whether they would ever claim the privilege or whether the claim, if asserted, would be honored by the Attorney General. But with respect to the orders in this case, addressed to named individuals, both these contingencies are foreclosed. Petitioners asserted the privilege in their answers to the Attorney General’s petitions; they did not testify at the Board hearings; they again asserted the privilege in the review proceedings in the Court of Appeals. In each instance the "Attorney General rejected their claims. Thus, the considerations which led the Court -in Communist Party to hold that the claims on behalf of unnamed officers were premature are not present in this case.

There are other reasons for holding that petitioners’ self-incrimination claims are ripe for decision. Specific orders requiring petitioners to register have been issued. The Attorney General has promulgated regulations requiring that registration shall be accomplished on Form IS-52a and that the accompanying registration statement shall be a completed Form IS-52, 28 CFR §§ 11.206, 11.207, and petitioners risk very heavy penalties if they fail to register by completing and filing these forms. Under § 15 (a)(2) of the Act, 64 Stat. 1002, 50 U. S. C. §794(a)(2), for example, each day of failure to register constitutes a separate offense punishable by a fine of up to $10,000 or imprisonment of up to five years, or both. Petitioners must either register without a decision on the merits of their privilege claims, or fail to register and risk onerous and rapidly mounting penalties while awaiting the Government’s pleasure whether to initiate a prosecution against them. To ask, in these circumstances, that petitioners await such a prosecution for an adjudication of their self-incrimination claims is, in effect, to contend that they should be denied the protection of the Fifth Amendment privilege intended to relieve claimants of the necessity of making a choice between incriminating themselves and risking serious punishments for refusing to do so.

Indeed the Government concedes in its brief in this Court that the Court of Appeals’ holding of prematurity was erroneous insofar as petitioners’ claims of privilege relate to the Board’s power to compel the act of registration and the submission of an accompanying registration statement. The brief candidly acknowledges that, since § 14 (b) provides for judicial review of a Board order to register, petitioners’ claims in that regard, like any other contention that an order is invalid, may be heard and determined by the reviewing court — thus distinguishing orders that are not similarly reviewable, see Alexander v. United States, 201 U. S. 117; Cobbledick v. United States, 309 U. S. 323. Nevertheless, the Government argues that petitioners’ claims are premature insofar as they relate to “any particular inquiry” on Forms IS-52a and IS-52. Two contingencies are hypothesized in support of this contention: (1) that the Attorney General might alter the present forms or (2) that he might accept less than fully completed forms.

The distinction upon which this argument is predicated is illusory. Neither the statute nor the regulations draw any distinction between the act of registering and the submission of a registration statement, on the one hand, and, on the other hand, the answering of the inquiries demanded by the forms; the statute and regulations contemplate rather that the questions asked on the forms are to be fully and completely answered. Morever, the contingencies hypothesized are irrelevant. Petitioners are obliged to register and to submit registration forms in accordance with presently existing regulations; the mere contingency that the Attorney General might revise the regulations at some future time does not render premature their challenge to the existing requirements. Nor can these requirements be viewed as requiring that petitioners answer — at the risk of criminal prosecution for error — only those items which will not incriminate petitioners; full compliance is required. Finally, the Government’s argument would do violence to the congressional scheme. The penalties are incurred only upon failure to register as required by final orders and, under § 14 (b), orders become final upon completion of judicial review. In so providing, Congress plainly manifested an intention to afford alleged members, prior to criminal prosecution for failure to register, an adjudication of all, not just some, of the claims addressed to the validity of the Board’s registration orders. We therefore proceed to a determination of the merits of petitioners’ self-incrimination claims.

II.

The risks of incrimination which the petitioners take in registering are obvious. Form IS-52a requires an admission of membership in the Communist Party. Such an admission of membership may be used to prosecute the registrant under the membership clause of the Smith Act, 18 U. S. C. § 2385 (1964 ed.), or under § 4 (a) of the Subversive Activities Control Act, 64 Stat. 991, 50 U. S. C. § 783 (a) (1964 ed.), to mention only two federal criminal statutes. Scales v. United States, 367 U. S. 203, 211. Accordingly, we have held that mere association with the Communist Party presents sufficient threat of prosecution to support a claim of privilege. Patricia Blau v. United States, 340 U. S. 159; Irving Blau v. United States, 340 U. S. 332; Brunner v. United States, 343 U. S. 918; Quinn v. United States, 349 U. S. 155. These cases involved questions to witnesses on the witness stand, but if the admission cannot be compelled in oral testimony, we do not see how compulsion in writing makes a difference for constitutional purposes. Cf. New York ex rel. Ferguson v. Reardon, 197 N. Y. 236, 243-244, 90 N. E. 829, 832. It follows that the requirement to accomplish registration by completing and filing Form IS-52a is inconsistent with the protection of the Self-Incrimination Clause.

The statutory scheme, in providing that registration “shall be accompanied” by a registration statement, clearly implies that there is a duty to file Form IS-52, the registration statement, only if there is an enforceable obligation to accomplish registration by completing and filing Form IS-52a. Yet, even if the statute and regulations required petitioners to complete and file Form IS-52 without regard to the validity of the order to register on Form IS-52a, the requirement to complete and file Form IS-52 would also invade the privilege. Like the admission of Party membership demanded by Form IS-52a, the information called for by Form IS-52— the organization of which the registrant is a member, his aliases, place and date of birth, a list of offices held in the organization and duties thereof — might be used as evidence in or at least supply investigatory leads to a criminal prosecution. The Government, relying on United States v. Sullivan, 274 U. S. 259, argues that petitioners might answer some questions and appropriately claim the privilege on the form as to others, but cannot fail to submit a registration statement altogether. Apart from our conclusion that nothing in the Act or regulations permits less than literal and full compliance with the requirements of the form, the reliance on Sulli van is misplaced. Sullivan upheld a conviction for failure to file an income tax return on the theory that “[i]f the form of return provided called for answers that the defendant was privileged from making he could have raised the objection in the return, but could not on that account refuse to make any return at all.” 274 U. S., at 263. That declaration was based on the view, first, that a self-incrimination claim against every question on the tax return, or based on the mere submission of the return, would be virtually frivolous, and second, that to honor the claim of privilege not asserted at the time the return was due would make the taxpayer rather than a tribunal the final arbiter of the merits of the claim. But neither reason applies here. A tribunal, the Board, had an opportunity to pass upon the petitioners’ self-incrimination claims; and since, unlike a tax return, the pervasive effect of the information called for by Form IS-52 is incriminatory, their claims are substantial and far from frivolous. In Sullivan the questions in the income tax return were neutral on their face and directed at the public at large, but here they are directed at a highly selective group inherently suspect of criminal activities. Petitioners’ claims are not asserted in an essentially noncriminal and regulatory area of inquiry, but against an inquiry in an area permeated with criminal statutes, where response to any of the form’s questions in context might involve the petitioners in the admission of a crucial element of a crime.

III.

Section 4 (f) of the Act, the purported immunity provision, does not save the registration orders from petitioners’ Fifth Amendment challenge. In Counselman v. Hitchcock, 142 U. S. 547, decided in 1892, the Court held “that no [immunity] statute which leaves the party or witness subject to prosecution after he answers the criminating question put to him, can have'the effect of supplanting the privilege . . . ,” and that such a statute is valid only if it supplies “a complete protection from all the perils against which the constitutional prohibition was designed to guard . . .” by affording “absolute immunity against future prosecution for the offence to which the question relates.” Id., at 585-586. Measured by these standards, the immunity granted by § 4 (f) is not complete. See Scales v. United States, 367 U. S., at 206-219. It does not preclude any use of the information called for by Form IS-52, either as evidence or as an investigatory lead. With regard to the act of registering on Form IS-52a, § 4 (f) provides only that the admission of Party membership thus required shall not per se constitute a violation of §§ 4 (a) and (c) or any other criminal statute, or “be received in evidence” against a registrant in any criminal prosecution; it does not preclude the use of the admission as an investigatory lead, a usé which is barred by the privilege. Counselman v. Hitchcock, 142 U. S., at 564-565, 585.

The Government does not contend that the shortcoming of § 4 (f) is remedied in regard to information called for on the registration statement, Form IS-52. With respect to Form IS-52a, however, the argument is made that, since an order to register is preceded by a Board finding of Party membership, the admission of membership required on that form would be of no investigatory value and thus is not “incriminatory” within the meaning of the Fifth Amendment privilege. On this view the incompleteness of the § 4 (f) grant of immunity would be rendered immaterial and the admission of Party membership could be compelled without violating the privilege. We disagree. The judgment as to whether a disclosure would be “incriminatory” has never been made dependent on an assessment of the information possessed by the Government at the time of interrogation; the protection of the privilege would be seriously impaired if the right to invoke it was dependent on such an assessment, with all its uncertainties. The threat to the privilege is no less present where it is proposed that this assessment be made in order to remedy a shortcoming in a statutory grant of immunity. The representation that the information demanded is of no utility is belied by the fact that the failure to make the disclosure is so severely sanctioned; and permitting the incompleteness of § 4 (f) to be cured by such a representation would render illusory the Counselman requirement that a statute, in order to supplant the privilege, must provide “complete protection from all the perils against which the constitutional prohibition was designed to guard.”

The judgment of the Court of Appeals is reversed and the Board’s orders are set aside.

It is so ordered.

Mr. Justice Black

concurs in the reversal for all the reasons set out in the Court’s opinion as well as those set out in his dissent in Communist Party of the United States v. SACB, 367 U. S. 1, 137.

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

APPENDIX TO OPINION OF THE COURT.

Form IS-52a is as follows:

Form No. IS-52a

(Ed. 9-6-61)

Budget Bureau No. 43-R414

Approval expires July 31, 1966

UNITED STATES DEPARTMENT OF JUSTICE

Washington, D. C.

REGISTRATION FORM FOR INDIVIDUALS

Pursuant to Section 8(a) or (b) of the Internal Security Act of 1950

(Note: This form should be accompanied by a Registration Statement, Form IS-52)

.hereby

(Name of individual — Print or type)

registers as a member of ., a Communist-action organization.

/s/ .

(Signature) (Date)

(Typed or printed name) (Date)

(Address — type or print)

Form IS-52 is as follows:

Budget Bureau No. 43-R301.2

Approval expires July 31, 1966

UNITED STATES DEPARTMENT OF JUSTICE

Washington, D. C.

Form IS-52 U O REGISTRATION STATEMENTS OP INDIVIDUALS

Pursuant to section 8 of the Internal Security Act of 1950

Instruction Sheet — Read Carefully

1. All individuals required to register under section 8 of the Internal Security Act of 1950 shall use this form for their registration statements.

2. Two copies of the statement are to be filed. An additional copy of the statement should be prepared and retained by the Registrant for future references.

3. The statement is to be filed with the Internal Security Division, Department of Justice, Washington, D. C.

4. All items of the form are to be answered. Where the answer to an item is “None” or “inapplicable,” it should be so stated.

5. Both copies of the statement are to be signed. The making of any willful false statement or the omission of any material fact is punishable under 18 U. S. Code, 1001.

6. If the space provided on the form for the answer to any given item is insufficient, reference shall be made in such space to a full insert page or pages on which the item number and item shall be restated and the answer given.

For an Individual

a. Who is a member of any Communist-action organization which has failed to file a registration statement as required by Section 7(a) of the Internal Security Act of 1950.

OR

b. Who is a member of any organization which has registered as a Communist-action organization under Section 7(a) of the Internal Security Act of 1950 but which has failed to include the individual’s name upon the list of members filed with the Attorney General.

1. Name of the Communist-action organization of which Registrant was a member within the preceding twelve months.

2. (a) Name of Registrant.

(b) All other names used by Registrant during the past ten years and dates when used.

(c) Date of birth.

(d) Place of birth.

3.(a) Present business address.

(b) Present residence address.

4. If the Registrant is now or has within the past twelve months been an officer of the Communist-actión organization listed in response to question number 1:

(a) List all offices so held and the date when held.

(b) Give a description of the duties or functions performed during tenure of office.

The undersigned certifies that he has read the information set forth in this statement, that he is familiar with the contents thereof, and that such contents are in their entirety true and accurate to the best of his knowledge and belief. The undersigned further represents that he is familiar with the provisions of Section 1001, Title 18, U. S. Code (printed at the bottom of this form).

/s/ .

(Signature) (Date)

/t/ .

(Name) (date)

(Print or type)

Mr. Justice Clark,

concurring.

I join in the opinion of the Court. The conclusion it reaches today was forecast in 1948. In response to the request of the Chairman of the Senate Judiciary Committee for an expression of the views of the Department of Justice on H. R. 5852, a precursor of the Act here under attack, it was then pointed out that the “measure might be held . . . even to compel self-incrimination.”

This view was expressed in a letter over my signature as Attorney General which noted that the proposed legislation “would require every Communist political organization and every Communist-front organization to register .... In addition to information which would be required of both organizations in common, a Communist political organization would be obliged to disclose the names and addresses of its members in its registration statement. ... In case of the failure of any organization to register in accordance with the measure, it would be the duty of the executive officer and the secretary of such organization to register in behalf of the organization. ... A failure to register . . . subjects the organization and certain of its agents to severe penalties.” After consideration of other provisions of the bill the letter advised that the Department of Justice had concluded that “the measure might be held (notwithstanding the legislative finding of clear and present danger) to deny freedom of speech, of the press, and of assembly, and even to compel self-incrimination.” It also expressed the belief of the Department that “there would not be any voluntary registrations under the measure. Should a Communist organization fail to register, the burden to proceed would shift to the Attorney General ... to prove that the organization is required to register.”

As finally passed, the Act imposed a duty to register upon individual members after the refusal of the Communist Party to register and disclose its membership. Though not in H. R. 5852 about which the Department of Justice expressed constitutional doubts, this more pervasive registration requirement directly abridges the privilege of members against self-incrimination. I therefore join in this reversal.

       The judgment of conviction of the Party for failure to register was reversed by the Court of Appeals for the District of Columbia Circuit, and the case remanded for a new trial. Communist Party of the United States v. United States, 118 U. S. App. D. C. 61, 331 F. 2d 807.

       Under this section the registration statement which accompanies the registration of a Communist-action organization is required to include "the name and last-known address of each individual who was a member of the organization at any time during the period of twelve full calendar months preceding the filing of such statement.”

       Sections 8(a) and (c), 64 Stat. 995, 50 U. S. C. §§ 787 (a) and (c) (1964 ed.), provide:
      “(a) Any individual who is or becomes a member of any organization concerning which (1) there is in effect a final order of the Board requiring such organization to register under section 786 (a) of this title as a Communist-action organization, (2) more than thirty days have elapsed since such order has become final, and (3) such organization is not registered under section 786 of this title as a Communist-action organization, shall within sixty days after said order has become final, or within thirty days after becoming a member of such organization, whichever is later, register with the Attorney General as a member of such organization.
      “(c) The registration made by any individual under subsection (a) or (b) of this section shall be accompanied by a registration statement to be prepared and filed in such manner and form, and containing such information, as the Attorney General shall by regulations prescribe.”
      Section 13 (a), 64 Stat. 998, 50 U. S. C. § 792 (a) (1964 ed.), provides:
      “Whenever the Attorney General shall have reason to believe that . . . any individual who has not registered under section 787 of this title is in fact required to register under such section, he shall file with the Board and serve upon such . . . individual a petition for an order requiring such . . . individual to register pursuant to such subsection or section, as the case may be. Each such petition shall be verified under oath, and shall contain a statement of the facts upon which the Attorney General relies in support of his prayer for the issuance of such order.”

       Section 14 (a), 64 Stat. 1001, 50 U. S. C. §793 (a) (1964 ed.), provides:
      “The party aggrieved by any order entered by the Board . . . may obtain a review of such order by filing in the United States Court of Appeals for the District of Columbia, within sixty days from the date of service upon it of such order, a written petition praying that the order of the Board be set aside. . . . Upon the filing of such petition the court shall have jurisdiction of the proceeding and shall have power to affirm or set aside the order of the Board .... The findings of the Board as to the facts, if supported by the preponderance of the evidence, shall be conclusive. . . . The judgment and decree of the court shall be final, except that the same shall be subject to review by the Supreme Court upon certiorari . . . .”

       The Government’s opposition to the petition for certiorari suggested that the case is moot as to petitioner Albertson by reason of his alleged expulsion from the Party. Albertson, however, challenges the suggestion of mootness. There is no occasion to decide the question since, in any event, we must reach the merits of the issues in respect of an identical order issued against petitioner Proctor.

       Petitioners’ other challenges assailed the Act and registration orders as denying substantive due process (because they allegedly serve no governmental purpose), as abridging First Amendment freedoms, as violating procedural due process and constituting bills of attainder (because they made the Board’s 1953 determination that the Communist Party was a Communist-action organization conclusive upon petitioners), and finally, as denying petitioners the safeguards of grand jury indictment, judicial trial and trial by jury.

       The regulations governing Party registration pursuant, to § 7 (d), 50 U. S. C. § 786 (d), are 28 CFR §§ 11.200 and 11.201, and the forms are IS-51a. and IS — 51. The regulation governing officers obliged by §7 (h), 50 U. S. C. §786 (h) “to register for” the Party if it failed to register is 28 CFR § 11.205. See Communist Party, 367 U. S., at 105-110.

       Copies of Form IS-52a and Form IS-52 are reproduced in the Appendix to this opinion.

       The case was argued orally by both sides on the premise that the penalty for failure to complete arid file Form IS-52 constituted a separate offense punishable by fine of up to $10,000 or imprisonment of up to five years, or both, but that each day of failure to file the form did not constitute a separate offense. We have no occasion, however, to decide the question, and intimate no view upon it. See § 15 (b), 50 U. S. C. § 794 (b).

       Section 4 (f), 64 Stat. 992, 50 U. S. C. §783 (f) provides:
      “Neither the holding of office nor membership in any Communist organization by any person shall constitute per se a violation of subsection (a) or subsection (c) of this section or of any other criminal statute. The fact of the registration of any person under section 787 or section 788 of this title as an officer or member of any Communist organization shall not be received in evidence against such person in any prosecution for any alleged violation of subsection (a) or subsection (c) of this section or for any alleged violation of any other criminal statute.”

       The legislative history includes several expressions of doubt that the immunity granted was coextensive with the privilege. See S. Rep. No. 2369, 81st Cong., 2d Sess., Pt. 2, pp. 12-13 (Sen. Kilgore) (Minority Report); 96 Cong. Rec. 14479 (Sen. Humphrey); 96 Cong. Rec. 15199 and 15554 (Sen. Kefauver); see also 96 Cong. Rec. 13739-13740 (Rep. Celler), dealing with a more modified immunity grant in H. R. 9400. See generally Scales v. United States, 307 U. S., at 212-219 (Court opinion), 282-287 (dissenting opinion).

      18 U. S. C., Section 1001, provides: Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.

       Hearings on H. R. 5852 before the Senate Committee on the Judiciary, 80th Cong., 2d Sess., 422 (1948).


author:
      Mr. Justice Stewart MR. Justice Douglas,
      Mr. Justice Brennan, Mr. Justice Fortas,

text:
    SHUTTLESWORTH v. CITY OF BIRMINGHAM.
    No. 5.
    Argued October 11, 1965.
    Decided November 15, 1966.

      James M. Nabrit III argued the cause for petitioner. With him on the brief were Jack Greenberg, Norman C. Amaker, Peter A. Hall, Orzell Billingsley, Jr., and Anthony G. Amsterdam.

      Earl McBee argued the cause and filed a brief for respondent.
   Mr. Justice Stewart

delivered the opinion of the Court.

The petitioner was brought to trial in the Circuit Court of Jefferson County, Alabama, upon a complaint charging him with violating two sections of the General Code of the City of Birmingham, Alabama. After trial without a jury, the court found him “guilty as charged in the Complaint,” and imposed a sentence of imprisonment for 180 days at hard labor and an additional 61 days at hard labor in default of a $100 fine and costs. The judgment of conviction was affirmed by the Alabama Court of Appeals, 42 Ala. App. 296, 161 So. 2d 796, and the Supreme Court of Alabama declined review. 276 Ala. 707, 161 So. 2d 799. We granted certiorari to consider the petitioner’s claim that under the Fourteenth Amendment of the United States Constitution his conviction cannot stand. 380 U. S. 905.

The two ordinances which Shuttlesworth was charged with violating are §§ 1142 and 1231 of the Birmingham General City Code. The relevant paragraph of § 1142 provides: “It shall be unlawful for any person or any number of persons to so stand, loiter or walk upon any street or sidewalk in the city as to obstruct free passage over, on or along said street or sidewalk. It shall also be unlawful for any person to stand or loiter upon any street or sidewalk of the city after having been requested by any police officer to move on.” Section 1231 provides: “It shall be unlawful for any person to refuse or fail to comply with any lawful order, signal or direction of a police officer.” The two counts in the complaint were framed in the words of these ordinances.

The evidence was in conflict, but the prosecution’s version of the facts can be briefly summarized. On April 4, 1962, at about 10:30 a. m., Patrolman Byars of the Birmingham Police Department observed Shuttlesworth standing on a sidewalk with 10 or 12 companions outside a department store near the intersection of 2d Ave. and 19th St. in the City of Birmingham. After observing the group for a minute or so, Byars walked up and “told them they would have to move on and clear the sidewalk and not obstruct it for the pedestrians.” After some, but not all, of the group began to disperse, Byars repeated this request twice. In response to the second request, Shuttlesworth said, “You mean to say we can’t stand here on the sidewalk?” After the third request he replied, “Do you mean to tell me we can’t stand here in front of this store?” By this time everybody in the group but Shuttlesworth had begun to walk away, and Patrolman Byars told him he was under arrest. Shut-tlesworth then responded, “Well, I will go into the store,” and walked into the entrance of the adjacent department store. Byars followed and took him into custody just inside the store’s entrance.

I.

On its face, the here relevant paragraph of § 1142 sets out two separate and disjunctive offenses. The paragraph makes it an offense to “so stand, loiter or walk upon any street or sidewalk ... as to obstruct free passage over, on or along said street or sidewalk.” The paragraph makes it “also . . . unlawful for any person to stand or loiter upon any street or sidewalk . . . after having been requested by any police officer to move on.” (Emphasis added.) The first count of the complaint in this case, tracking the ordinance, charged these two separate offenses in the alternative.

Literally read, therefore, the second part of this ordinance says that a person may stand on a public sidewalk in Birmingham only at the whim of any police officer of that city. The constitutional vice of so broad a provision needs no demonstration. It “does not provide for government by clearly defined laws, but rather for government by the moment-to-moment opinions of a policeman on his beat.” Cox v. Louisiana, 379 U. S. 536, 579 (separate opinion of Mr. Justice Black). Instinct with its ever-present potential for arbitrarily suppressing First Amendment liberties, that kind of law bears the hallmark of a police state.

The matter is not one which need be exhaustively pursued, however, because, as the respondent correctly points out, the Alabama Court of Appeals has not read § 1142 literally, but has given to it an explicitly narrowed construction. The ordinance, that court has ruled, “is directed at obstructing the free passage over, on or along a street or sidewalk by the manner in which a person accused stands, loiters or walks thereupon. Our decisions make it clear that the mere refusal to move on after a police officer’s requesting that a person standing or loitering should do so is not enough to support the offense. . . . [T]here must also be a showing of the accused’s blocking free passage . . . .” Middlebrooks v. City of Birmingham, 42 Ala. App. 525, 527, 170 So. 2d 424, 426.

The Alabama Court of Appeals has thus authoritatively ruled that § 1142 applies only when a person who stands, loiters, or walks on a street or sidewalk so as to obstruct free passage refuses to obey a request by an officer to move on. It is our duty, of course, to accept this state judicial construction of the ordinance. Winters v. New York, 333 U. S. 507; United States v. Burnison, 339 U. S. 87; Aero Mayflower Transit Co. v. Board of Railroad Comm’rs, 332 U. S. 495. As so construed, we cannot say that the ordinance is unconstitutional, though it requires no great feat of imagination to envisage situations in which such an ordinance might be unconstitutionally applied.

The present limiting construction of § 1142 was not given to the ordinance by the Alabama Court of Appeals, however, until its decision in Middlebrooks, supra, two years after the petitioner’s conviction in the present case. In Middlebrooks the Court of Appeals stated that it had applied its narrowed construction of the ordinance in affirming Shuttlesworth’s conviction, but its opinion in the present case, 42 Ala. App. 296, 161 So. 2d 796, nowhere makes explicit any such construction. In any event, the trial court in the present case was without guidance from any state appellate court as to the meaning of the ordinance.

The trial court made no findings of fact and rendered no opinion. For all that appears, that court may have found the petitioner guilty only by applying the literal-— and unconstitutional — terms of the ordinance. Upon the evidence before him, the trial judge as finder of the facts might easily have determined that the petitioner had created an obstruction, but had subsequently moved on. The court might alternatively have found that the petitioner himself had created no obstruction, but had simply disobeyed Patrolman Byars’ instruction to move on. In either circumstance the literal terms of the ordinance would apply; in neither circumstance would the ordinance be applicable as now construed by the Alabama Court of Appeals. Because we are unable to say that the Alabama courts in this case did not judge the petitioner by an unconstitutional construction of the ordinance, the petitioner’s conviction under § 1142 cannot stand.

II.

We find the petitioner’s conviction under the second count of the complaint, for violation of § 1231 of the General City Code, to be constitutionally invalid for a completely distinct reason. That ordinance makes it a criminal offense for any person “to refuse or fail to comply with any lawful order, signal or direction of a police officer.” Like the provisions of § 1142 discussed above, the literal terms of this ordinance are so broad as to evoke constitutional doubts of the utmost gravity. But the Alabama Court of Appeals has confined this ordinance to a relatively narrow scope. In reversing the conviction of the petitioner’s codefendant, the court said of § 1231: “This section appears in the chapter regulating vehicular traffic, and provides for the enforcement of the orders of the officers of the police department in directing such traffic.” Phifer v. City of Birmingham, 42 Ala. App. 282, 285, 160 So. 2d 898, 901.

The record contains no evidence whatever that Patrolman Byars was directing vehicular traffic at the time he told the petitioner and his companions to move on. Whatever Patrolman Byars’ other generally assigned duties may have been, he testified unambiguously that he directed the petitioner’s group to move on, to “clear the sidewalk and not obstruct it for the pedestrians.”

Five years ago this Court decided the case of Thompson v. City of Louisville, 362 U. S. 199. There we reversed the conviction of a man who had been found guilty in the police court of Louisville, Kentucky, of loitering and disorderly conduct. The proposition for which that case stands is simple and clear. It has nothing to do with concepts relating to the weight or sufficiency of the evidence in any particular case. It goes, rather, to the most basic concepts of due process of law. Its application in Thompson’s case turned, as Mr. Justice Black pointed out, “not on the sufficiency of the evidence, but on whether this conviction rests upon any evidence at all.” 362 U. S., at 199. The Court found there was “no evidence whatever in the record to support these convictions,” and held that it was “a violation of due process to convict and punish a man without evidence of his guilt.” 362 U. S., at 206. See also Garner v. Louisiana, 368 U. S. 157.

No more need be said in this case with respect to the petitioner’s conviction for violating § 1231 of the General Code of the City of Birmingham, Alabama. Quite simply, the petitioner was not in, on, or around any vehicle at the time he was directed to move on or at the time he was arrested. He was a pedestrian. Officer Byars did not issue any direction to the petitioner in the course of directing vehicular traffic, because Officer Byars was not then directing any such traffic. There was thus no evidence whatever in the record to support the petitioner’s conviction under this ordinance as it has been authoritatively construed by the Alabama Court of Appeals. It was a violation of due process to convict and punish him without evidence of his guilt.

For these reasons the judgment is reversed and the case is remanded to the Court of Appeals of Alabama for proceedings not inconsistent with this opinion.

Reversed and remanded.

MR. Justice Douglas,

concurring.

I join Part II of the Court’s opinion but would reverse on Count I for a somewhat different reason. The police power of a municipality is certainly ample to deal with all traffic conditions on the streets — pedestrian as well as vehicular. So there could be no doubt that if petitioner were one member of a group obstructing a sidewalk he could, pursuant to a narrowly drawn ordinance, be asked to move on and, if he refused, be arrested for the obstruction. But in this case the testimony is that the group dissolved when warned by the police, save only the petitioner. At the time of the arrest petitioner was no longer blocking traffic. Section 1142 of the Birmingham General Code makes it unlawful to “obstruct the free passage of persons on . . . sidewalks.” The ordinance, as it has been construed by the Alabama Court of Appeals, has been held to apply only to one who continues to block a sidewalk after a police warning to move. Middlebrooks v. City of Birmingham, 42 Ala. App. 525, 527, 170 So. 2d 424, 426. There was no such “obstructing” here, unless petitioner’s presence on the street was itself enough. Failure to obey such an order, when one is not acting unlawfully, certainly cannot be made a crime in a country where freedom of locomotion (Edwards v. California, 314 U. S. 160) is honored. For these reasons I think there was no evidence, within the meaning of Thompson v. City of Louisville, 362 U. S. 199, to sustain the conviction and hence I would reverse the judgment outright.

APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS.

Officer Robert L. Byars, who made the arrest, testified on cross-examination as follows:

“Q. How many persons were standing there at that intersection when you first observed it?

“A. Some ten or twelve.

“Q. Were they all colored or white people, or altogether or what?

“A. I didn’t pay particular notice to the race.

“Q. You stood there a minute or minute and a half and then you went out and cleared the intersection?

“A. I went out and asked them to move.

“Q. Was that great big crowd out there and the intersection completely blocked? You testified you had half of the south-north cross walk free, that the defendants were not blocking half of the south-north cross walk, they were standing in the west part of the cross walk where they should be standing assuming they were going south, they were not blocking the east-west cross walk at all? Now, where was the crowd that was blocking?

“A. They were all standing on the sidewalk.

“Q. You mean the crowd?

“A. That’s right, including the defendant.

“Q. Now, you placed the defendants where you have the X. Now, the crowd is what we are interested in now, the crowd they were blocking, where were they?

“Mr. Walker: We object. There has been no testimony that there was a crowd that was being blocked; the testimony is there was a crowd blocking the moving trafile.

“Q. Are these defendants charged then with assembling the crowd or something? Who were they blocking? Where were the persons they were blocking, these two defendants here?

“A. They were blocking half of the sidewalk causing the people walking east to go into the street around them.

“Q. The people walking east along what street?

“A. Along 2nd Avenue.

“Q. Along this way (indicating)?

“A. That’s right.

“Q. The people walking along 2nd Avenue from west to east had to go around them?

“A. That is true.

“Q. While they stood there?

“A. That is true.

“Q. And you observed that for a minute or minute and a half?

“A. That is true.

“Q. And then you went out and you required them to move on. Did you speak directly to the Defendant Shuttlesworth?

"A. I spoke to the people standing assembled there.

“Q. They all moved but him, is that correct?

“A. Not on the first request they didn’t all move. Some began to move.

“Q. Well, all had moved by the time you made the arrest?

“A. Except Shuttlesworth.

“Q. Nobody was standing there but Shuttlesworth?

“A. Nobody was standing; everybody else was in motion except the Defendant Shuttlesworth, who had never moved.

“Q. Was he talking to you during this time?

“A. He made a statement to me on two occasions when I informed him to move on on three occasions.

“Q. Did he ask you where you wanted him to move?

“A. No.

“Q. Did you tell him where to move?

“A. I did not.

“Q. You didn’t arrest anybody but Shuttlesworth?

“A. Not at that time.” (R. 27-28.)

Officer C. W. Hallman, who observed the above after having been called over by Officer Byars, testified on direct examination as follows:

“Q. About how many was in the group at that time, if you know?

“A. I would say five or six. It could have been more or less.

“Q. What happened to the group then, if anything?

“A. All of them dispersed except Shuttlesworth.

“Q. What happened after that?

“A. Officer Byars told him he was under arrest for blocking the sidewalk and placed him under arrest.” (R. 59-60.)

Mr. Justice Brennan,

concurring.

I join the Court’s opinion on my understanding that Middlebrooks v. City of Birmingham, is being read as holding that § 1142 applies only when a person (a) stands, loiters or walks on a street or sidewalk so as to obstruct free passage, (b) is requested by an officer to move on, and (c) thereafter continues to block passage by loitering or standing on the street. It is only this limiting construction which saves the statute from the constitutional challenge that it is overly broad. Moreover, because this construction delimits the statute to “the sort of ‘hard-core’ conduct that would obviously be prohibited under any construction,” Dombrowski v. Pfister, 380 U. S. 479, 491-492, it may be legitimately applied to such conduct occurring before that construction.

Mr. Justice Fortas,

with whom The Chief Justice joins,

concurring.

I agree that Shuttlesworth’s conviction must be set aside. But I am concerned lest the opinion of the Court be considered as indicating, that Shuttlesworth can constitutionally be convicted of violating the General Code of the City of Birmingham, Alabama, on the facts here presented. Any such conviction would violate basic constitutional guaranties. I would make this clear now.

The Court’s opinion does not challenge the constitutionality of § 1142 of the Birmingham Code as that section was construed by the Alabama Court of Appeals two years after Shuttlesworth’s conviction. The opinion may be read to imply that if Shuttlesworth is now put to trial for violation of § 1142, as construed, the vice of the present conviction may be eliminated. I would make it clear that the Federal Constitution forbids a conviction on the facts of this record, regardless of the validity of the ordinance involved.

I agree that, as construed by Alabama two years after Shuttlesworth was convicted, § 1142 cannot be held unconstitutional on its face. I agree that if there were a rational basis for charging Shuttlesworth with violating the section as so construed, he could be retried if Alabama should choose so vigorously to protect the sidewalks of Birmingham. Civil rights leaders, like all other persons, are subject to the law and must comply with it. Their calling carries no immunity. Their cause confers no privilege to break or disregard the law.

But there is here no possible basis for a conviction which would be valid under the Federal Constitution. The accused provision would be unconstitutional as applied to Shuttlesworth’s facts even after the plastic surgery by Alabama’s Court of Appeals in 1964. Middlebrooks v. City of Birmingham, 42 Ala. App. 525, 170 So. 2d 424. A revision of the formula does not and cannot change the facts; and those facts do not permit the State to jail Shuttlesworth for his actions on April 4, 1962.

Taking the prosecution’s version of the facts, it appears that Shuttlesworth was one of a group of 8, 10 or 12 persons who at 10:30 a. m. on April 4, 1962, were accosted by a patrolman after they had stood for a minute or a minute and a half at 19th Street and 2d Avenue in Birmingham. They occupied one-half of the sidewalk. They were conversing among themselves. There is no suggestion of disorder or of deliberate obstruction of pedestrian traffic. After the first command by the patrolman, the group commenced to move away. The officer repeated his command, and Shuttlesworth said, “You mean to say we can’t stand here on the sidewalk?” After the third command, Shuttlesworth said, “Do you mean to tell me we can’t stand here in front of this store?” The officer then told Shuttlesworth he was under arrest. Shuttlesworth said he would go into the store. The officer followed and arrested him. There was no resistance. By this time everybody in the group except Shut-tlesworth had moved away. The entire incident took less than four and one-half minutes, from arrival of Shuttlesworth and his friends at the corner to his arrest.

For this, Shuttlesworth was tried, convicted and sentenced to spend half a year at hard labor and to pay a fine of $100.

In my view, there is nothing in the facts which justified an arrest and conviction. Prior to the officer’s command the situation was that a small group of people occupying one-half of the sidewalk were engaged in orderly conversation. Promptly upon the officer’s command, the group began to disperse and only Shuttlesworth remained. He, alone, cannot be held to have blocked the sidewalk. His rhetorical questions may have irritated the patrolman; but a policeman’s lot is not a happy one — ■ and certainly, in context, Shuttlesworth’s questions did not rise to the magnitude of an offense against the laws of Alabama. If one were to confine oneself to the surface version of the facts, a general alarm for the people of Birmingham would be in order. Their use of the sidewalks would be hazardous beyond measure.

But this, of course, is fiction. It is facade for a narrower, but no less disagreeable, truth. On April 4, 1962, the Negroes of Birmingham were engaged in a “selective buying campaign” — an attempted boycott — of Birmingham’s stores for the purpose of protesting discrimination against them. Shuttlesworth and his companions were Negroes. They were standing in front of a department store. Shuttlesworth, as an officer who participated in the arrest testified, was a “notorious” person in the field of civil rights in Birmingham.

In my view the net effect of the facts in this case is inescapable. Shuttlesworth’s arrest was an incident in the tense racial conflict in Birmingham. This may explain the arrest, but it adds nothing to its lawfulness. There is no basis in the facts and circumstances of the case for charging that Shuttlesworth was “blocking free passage” on the sidewalk, Middlebrooks, supra, at 527, 170 So. 2d, at 426, or that he culpably refused to obey an order of an officer to move on, or remained after such an order so as to justify arrest, trial or conviction. Any attempt to punish Shuttlesworth in these circumstances would, in my view, violate the Fourteenth Amendment of the Federal Constitution.

       This was a trial de novo on appeal from a judgment of conviction in the Recorder’s Court of the City of Birmingham.

       “Count One
      “Comes the City of Birmingham, Alabama, a municipal corporation, and complains that F. L. Shuttlesworth, within twelve months before the beginning of this prosecution and within the City of Birmingham, or the police jurisdiction thereof, did stand, loiter or walk upon a street or sidewalk within and among a group of other persons so as to obstruct free passage over, on or along said street or sidewalk at, to-wit: 2nd Avenue, North, at 19th Street or did while in said group stand or loiter upon said street or sidewalk after having been requested by a police officer to move on, contrary to and in violation of Section 1142 of the General City Code of Birmingham of 1944, as amended by Ordinance Number 1436-F.
      “Count Two
      “Comes the City of Birmingham, Alabama, a municipal corporation, and complains that F. L. Shuttlesworth, within twelve months before the beginning of this prosecution and within the City of Birmingham, or the police jurisdiction thereof, did refuse to comply with a lawful order, signal or direction of a police officer, contrary to and in violation of Section 1231 of the General City Code of the City of Birmingham.”

       The record contains many references to a so-called “selective buying campaign” in which Birmingham Negroes were engaged at that time. There was no showing, however, of any connection between this campaign and the presence of the petitioner and his companions outside the department store on the morning of his arrest.

       See note 2, supra.

        Thornhill v. Alabama, 310 U. S. 88, 97; NAACP v. Button, 371 U. S. 415, 433, 435; Amsterdam, Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. Pa. L. Rev. 67, 75-81, 96-104 (1960). Cf. Smith v. California, 361 U. S. 147, 151; Baggett v. Bullitt, 377 U. S. 360, 371.

        Lovell v. City of Griffin, 303 U. S. 444, 451; Kunz v. New York, 340 U. S. 290, 293; Schneider v. State, 308 U. S. 147, 163-164.

       The petitioner's trial took place in October 1962. The Alabama Court of Appeals affirmed the judgment of conviction in November 1963. The Middlebrooks case was decided in October 1964. 42 Ala. App. 525, 170 So. 2d 424. The Middlebrooks construction of the ordinance was adumbrated in Smith v. City of Birmingham; decided the same day. 42 Ala. App. 467, 168 So. 2d 35.

       Cf. Shelton v. City of Birmingham, 42 Ala. App. 371, 165 So. 2d 912, affirming the conviction of a defendant who refused to obey an officer’s direction to get out of the middle of a street which had been closed to private vehicles and in which “[pjolice cars and fire engines were being used to move and quiet the crowd.”

       Patrolman Byars testified that on the morning in question he was a “utility officer,” and that as such he was “in charge of the direction and movement of all traffic at 3rd Avenue and 19th Street and four blocks in an east, west, north and south direction.” He conceded that, he was “not regularly placed” at the intersection where the arrest occurred, and that he had “nothing to do with the other officers who were also there.”

       The record shows that the officer directing vehicular traffic at the intersection of 2d Ave. and 19th St. at the time of the petitioner’s arrest was Officer Hallman. His relevant testimony was as follows:
      “Q. Now, you observe on these corners from your position here when you police that corner, do you not?
      “A. I try to.
      “Q. Had you seen these people over there blocking traffic before you saw Officer Byars?

        “A. I saw him standing over there talking to them.
      “Q. Did you see them before he was talking to them?
      “A. I saw them over there. I didn’t pay any particular attention to them.
      “Q. Did you get the impression they were waiting for the light to change ?
      “A. I couldn’t answer that because I don’t know what they had on their mind.
      “Q. You formed no impression when you first saw them?

        “A. No.
      “Q. You took no note of them when you first saw them, is that right ?
      “A. Just saw them standing over there.
      “Q. The only time you made note of them standing over there was when you saw the policeman assisting you talking to them?
      “A. When I saw him over there talking to them. He wasn’t assisting me.
      “Q. He wasn’t assisting you with your corner.
      “A. No.”

      See Appendix hereto.

       As the Court’* opinion herein points out, in Middlebrooks, the Court of Appeals stated that its narrowed construction of the ordinance had been the “ratio decidendi” of Shuttlesworth, decided a year earlier. But there is no indication of this in Shuttlesworth itself.

       Officer Renshaw testified there were 8, 10 or 12 people, in the group (R. 40). Officer Byars testified to 10 or 12 (R. 17).

       Testimony of Officer Renshaw (R. 49). Officer Byars testified that he didn’t know what color they were (R. 27, 36).

       The principal arresting officer testified that he did not recognize Shuttlesworth, but he had seen his picture on television. He had heard of him, had read that he had frequently been arrested, and that he had been in the Birmingham jail. Shuttlesworth’s walk on April 4, 1962, started during a recess in a federal court civil rights trial in which he was involved. The trial had been publicized.


text:
    BRADLEY et al. v. SCHOOL BOARD OF CITY OF RICHMOND et al.
    No. 415.
    Decided November 15, 1965

      Jack Greenberg, James M. Nábrit III, S. W. Tucker and Henry L. Marsh III for petitioners in both cases.

      J. Elliott Drinard and Henry T. Wickham for respondents in No. 415. Frederick T. Gray for respondents in No. 416.

      Together with No. 416, Gilliam et al. v. School Board of City of Hopewell et al., also on petition for writ of certiorari to the same court.

   Per Curiam.

The petitions for writs of certiorari to the Court of Appeals for the Fourth Circuit are granted for the purpose of deciding whether it is proper to approve school desegregation plans without considering, at a full evi-dentiary hearing, the impact on those plans of faculty allocation on an alleged racial basis. We hold that the Court of Appeals erred in both these cases in this regard, 345 F. 2d 310, 319-321; 345 F. 2d 325, 328.

Plans for desegregating the public school systems of Hopewell and Richmond, Virginia, were approved by the District Court for the Eastern District of Virginia without full inquiry into petitioners’ contention that faculty allocation on an alleged racial basis rendered the plans inadequate under the principles of Brown v. Board of Education, 347 U. S. 483. The Court of Appeals, while recognizing the standing of petitioners, as parents and pupils, to raise this contention, declined to decide its merits because no evidentiary hearings had been held on this issue. But instead of remanding the cases for such hearings prior to final approval of the plans, the Court of Appeals held that “[wjhether and when such an inquiry is to be had are matters with respect to which the District Court . . . has a large measure of discretion,” and it reasoned as follows:

“When direct measures are employed to eliminate all direct discrimination in the assignment of pupils, a District Court may defer inquiry as to the appropriateness of supplemental measures until the effect and the sufficiency of the direct ones may be determined. The possible relation of a reassignment of teachers to protection of the constitutional rights of pupils need not be determined when it is speculative. When all direct discrimination in the assignment of pupils has been eliminated, assignment of teachers may be expected to follow the racial patterns established in the schools. An earlier judicial requirement of general reassignment of all teaching and administrative personnel need not be considered until the possible detrimental effects of such an order upon the administration of the schools and the efficiency of their staffs can be appraised along with the need for such an order in aid of protection of the constitutional rights of pupils.” 345 F. 2d, at 320-321.

We hold that petitioners were entitled to such full evidentiary hearings upon their contention. There is no merit to the suggestion that the relation between faculty allocation on an alleged racial basis and the adequacy of the desegregation plans is entirely speculative. Nor can we perceive any reason for postponing these hearings: Each plan had been in operation for at least one academic year; these suits had been pending for several years; and more than a decade has passed since we directed desegregation of public school facilities “with all deliberate speed,” Brown v. Board of Education, 349 U. S. 294, 301. Delays in desegregating school systems are no longer tolerable. Goss v. Board of Education, 373 U. S. 683, 689; Calhoun v. Latimer, 377 U. S. 263, 264-265; see Watson v. City of Memphis, 373 U. S. 526.

The judgments of the Court of Appeals are vacated and the cases are remanded to the District Court for evidentiary hearings consistent with this opinion. We, of course, express no views of the merits of the desegregation plans submitted, nor is further judicial review precluded in these cases following the hearings.

Vacated rnd remanded.


text:
    ALABAMA HIGHWAY EXPRESS, INC., et al. v. UNITED STATES et al.
    No. 447.
    Decided November 15, 1965.

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

      Solicitor General Marshall, Assistant Attorney General Turner, Robert B. Hummel, Robert W. Ginnane and Robert S. Burk for the United States et al.
   Per Curiam.

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


text:
    BURNHAM VAN SERVICE et al. v. PENTECOST et al.
    No. 494.
    Decided November 15, 1965.

      J. G. Lackey, Jr., for appellants.

      George F. McCanless, Attorney General of Tennessee, and Milton P. Rice, Assistant Attorney General, for appellees.
   Per Curiam.

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


text:
    MICHIGAN BELL TELEPHONE CO. v. CITY OF DETROIT.
    No. 497.
    Decided November 15, 1965

      Thomas O. Long, James M. Smith and Donald E. Brown for appellant in No. 497. Harvey A. Fischer and Richard Ford for appellant in No. 498.

      John H. Witherspoon for appellee.

      Together with No. 498, Detroit Edison Co. v. City of Detroit, also on appeal from the same court.

   Per Curiam.

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:
    FERNANDEZ v. BABARE et ux.
    No. 610,
    Misc.
    Decided November 15, 1965.

      Howard R. Lonergan for appellant.
   Per Curiam.

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


text:
    ADELMAN et al. v. LOWER MINNESOTA RIVER WATERSHED DISTRICT.
    No. 512.
    Decided November 15, 1965.

      Thomas E. Ticen for appellants.

      Raymond A. Haik 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:
    WILSON v. COMMISSIONER OF INTERNAL REVENUE.
    No. 520.
    Decided November 15, 1965.
    Appellant pro se.

      Solicitor General Marshall, Acting Assistant Attorney General Roberts and Melva M. Graney 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:
    HAINSWORTH v. MARTIN, SECRETARY OF STATE OF TEXAS, et al.
    No. 477.
    Decided November 15, 1965.

      Robert W. Hainsworth, appellant, pro se.

      Waggoner Carr, Attorney General of Texas, and Hawthorne Phillips, Pat Bailey and Mary K. Wall, Assistant Attorneys General, for appellees.
   Per Curiam.

This cause having become moot in the light of the enactment of the Texas Apportionment Act of 1965, the judgment of the Court of Civil Appeals, Third Supreme Judicial District of Texas, is vacated, and the cause is remanded for such proceedings as by that court may be deemed appropriate.

Mr. Justice Harlan and Mr. Justice Stewart would dismiss the appeal for want of a substantial federal question.

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


text:
    ROSENBLATT v. AMERICAN CYANAMID CO.
    No. 501.
    Decided November 15, 1965.

      E. Barrett Prettyman, Jr., and Thomas J. O’Toole for appellant.
   Per Curiam.

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

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