source: Caselaw Access Project

author: Me. Justice White Mr. Justice Fortas, Mr. Justice Harlan,

license: Public Domain

text:
    BLOOM v. ILLINOIS.
    No. 52.
    Argued January 16-17, 1968.
    Decided May 20, 1968.

      Anthony Bradley Eben argued the cause for petitioner. With him on the briefs was Herbert F. Friedman.

      Edward J. Hladis argued the cause for respondent. With him on the brief were John J. Stamos and Ronald Butler.

   Me. Justice White

delivered the opinion of the Court.

Petitioner was convicted in an Illinois state court of criminal contempt and sentenced to imprisonment for 24 months for willfully petitioning to admit to probate a will falsely prepared and executed after the death of the putative testator. Petitioner made a timely demand for jury trial which was refused. Since in Duncan v. Louisiana, ante, p. 145, the Constitution was held to guarantee the right to jury trial in serious criminal cases in state courts, we must now decide whether it also guarantees the right to jury trial for a criminal contempt punished by a two-year prison term.

I.

Whether federal and state courts may try criminal contempt cases without a jury has been a recurring question in this Court. Article III, § 2, of the Constitution provides that “[t]he Trial of all Crimes, except in Cases of Impeachment, shall be by Jury . . . .” The Sixth Amendment states that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . .” The Fifth and Fourteenth Amendments forbid both the Federal Government and the States from depriving any person of “life, liberty, or property, without due process of law.” Notwithstanding these provisions, until United States v. Barnett, 376 U. S. 681, rehearing denied, 377 U. S. 973 (1964), the Court consistently upheld the constitutional power of the state and federal courts to punish any criminal contempt without a jury trial. Eileribecker v. District Court of Plymouth County, 134 U. S. 31, 36-39 (1890); I. C. C. v. Brimson, 154 U. S. 447, 488-489 (1894); In re Debs, 158 U. S. 564, 594-596 (1895); Gompers v. United States, 233 U. S. 604, 610-611 (1914) ; Green v. United States, 356 U. S. 165, 183-187 (1958). These cases construed the Due Process Clause and the otherwise inclusive language of Article III and the Sixth Amendment as permitting summary trials in contempt cases because at common law contempt was tried without a jury and because the power of courts to punish for contempt without the intervention of any other agency was considered essential to the proper and effective functioning of the courts and to the administration of justice.

United States v. Barnett, supra, signaled a possible change of view. The Court of Appeals for the Fifth Circuit certified to this Court the question whether there was a right to jury trial in an impending contempt proceeding. Following prior cases, a five-man majority held that there was no constitutional right to jury trial in all contempt cases. Criminal contempt, intrinsically and aside from the particular penalty imposed, was not deemed a serious offense requiring the protection of the constitutional guarantees of the right to jury trial. However, the Court put aside as not raised in the certification or firmly settled by prior cases, the issue whether a severe punishment would itself trigger the right to jury trial and indicated, without explication, that some members of the Court were of the view that the Constitution limited the punishment which could be imposed where the contempt was tried without a jury. 376 U. S., at 694^695 and n. 12.

Two years later, in Cheff v. Schnackenberg, 384 U. S. 373 (1966), which involved a prison term of six months for contempt of a federal court, the Court rejected the claim that the Constitution guaranteed a right to jury trial in all criminal contempt cases. Contempt did not “of itself” warrant treatment as other than a petty offense; the six months’ punishment imposed permitted dealing with the case as a prosecution for “a petty offense, which under our decisions does not require a jury trial.” 384 U. S. 373, 379-380 (1966). See Callan v. Wilson, 127 U. S. 540 (1888); Schick v. United States, 195 U. S. 65 (1904); District of Columbia v. Clawans, 300 U. S. 617 (1937). It was not necessary in Chef to consider whether the constitutional guarantees of the right to jury trial applied to a prosecution for a serious contempt. Now, however, because of our holding in Duncan v. Louisiana, supra, that the right to jury trial extends to the States, and because of Bloom’s demand for a jury in this case, we must once again confront the broad rule that all criminal contempts can be constitutionally tried without a jury. Barnett presaged a re-examination of this doctrine at some later time; that time has now arrived.

In proceeding with this task, we are acutely aware of the responsibility we assume in entertaining challenges to a constitutional principle which is firmly entrenched and which has behind it weighty and ancient authority. Our deliberations have convinced us, however, that serious contempts are so nearly like other serious crimes that they are subject to the jury trial provisions of the Constitution, now binding on the States, and that the traditional rule is constitutionally infirm insofar as it permits other than petty contempts to be tried without honoring a demand for a jury trial. We accept the judgment of Barnett and Cheff that criminal contempt is a petty offense unless the punishment makes it a serious one; but, in our view, dispensing with the jury in the trial of contempts subjected to severe punishment represents an unacceptable construction of the Constitution, "an unconstitutional assumption of powers by the [courts] which no lapse of time or respectable array of opinion should make us hesitate to correct.” Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U. S. 518, 533 (1928) (Holmes, J., dissenting). The rule of our prior cases has strong, though sharply challenged, historical support; but neither this circumstance nor the considerations of necessity and efficiency normally offered in defense of the established rule, justify denying a jury trial in serious criminal contempt cases. The Constitution guarantees the right to jury trial in state court prosecutions for contempt just as it does for other crimes.

II.

Criminal contempt is, a crime in the ordinary sense; it is a violation of the law, a public wrong which is punishable by fine or imprisonment or both. In the words of Mr. Justice Holmes:

“These contempts are infractions of the law, visited with punishment as such. If such acts are not criminal, we are in error as to the most fundamental characteristic of crimes as that word has been understood in English speech.” Compers v. United States, 233 U. S. 604, 610 (1914).

Criminally contemptuous conduct may violate other provisions of the criminal law; but even when this is not the case convictions for criminal contempt are indistinguishable from ordinary criminal convictions, for their impact on the individual defendant is the same. Indeed, the role of criminal contempt and that of many ordinary criminal laws seem identical — protection of the institutions of our government and enforcement of their mandates.

Given that criminal contempt is a crime in every fundamental respect, the question is whether it is a crime to which the jury trial provisions of the Constitution apply. We hold that it is, primarily because in terms of those considerations which make the right to jury trial fundamental in criminal cases, there is no substantial difference between serious contempts and other serious crimes. Indeed, in contempt cases an even more compelling argument can be made for providing a right to jury trial as a protection against the arbitrary exercise of official power. Contemptuous conduct, though a public wrong, often strikes at the most vulnerable and human qualities of a judge’s temperament. Even when the contempt is not a direct insult to the court or the judge, it frequently represents a rejection of judicial authority, or an interference with the judicial process or with the duties of officers of the court.

The court has long recognized the potential for abuse in exercising the summary power to imprison for contempt — it is an “arbitrary” power which is “liable to abuse.” Ex parte Terry, 128 U. S. 289, 313 (1888). “[I]ts exercise is a delicate one and care is needed to avoid arbitrary or oppressive conclusions.” Cooke v. United States, 267 U. S. 517, 539 (1925).

These apprehensions about the unbridled power to punish summarily for contempt are reflected in the march of events in both Congress and the courts since our Constitution was adopted. The federal courts were established by the Judiciary Act of 1789; § 17 of the Act provided that those courts “shall have power to . . . punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same . . . .” 1 Stat. 83. See Anderson v. Dunn, 6 Wheat. 204, 227-228 (1821). This open-ended authority to deal with contempt, limited only as to mode of punishment, proved unsatisfactory to Congress. Abuses under the 1789 Act culminated in the unsuccessful impeachment proceedings against James Peck, a federal district judge who had imprisoned and disbarred one Lawless for publishing a criticism of one of Peck’s opinions in a case which was on appeal. The result was drastic curtailment of the contempt power in the Act of 1831, 4 Stat. 487. Ex parte Robinson, 19 Wall. 505, 510-511 (1874); In re Savin, 131 U. S. 267, 275-276 (1889). That Act limited the contempt power to misbehavior in the presence of the court or so near thereto as to obstruct justice; misbehavior of court officers in their official transactions; and disobedience of or resistance to the lawful writ, process, order, or decree of the court. This major revision of the contempt power in the federal sphere, which “narrowly confined” and “substantially curtailed” the authority to punish contempt summarily, Nye v. United States, 313 U. S. 33, 47-48 (1941), has continued to the present day as the basis for the general power to punish criminal contempt. 62 Stat. 701, 18 U. S. C. § 401.

The courts also proved sensitive to the potential for abuse which resides in the summary power to punish contempt. Before the 19th century was out, a distinction had been carefully drawn between contempts occurring within the view of the court, for which a hearing and formal presentation of evidence were dispensed with, and all other contempts where more normal adversary procedures were required. Ex parte Terry, 128 U. S. 289 (1888); In re Savin, 131 U. S. 267 (1889). Later, the Court could say “it is certain that in proceedings for criminal contempt the defendant is presumed to be innocent, he must be proved to be guilty beyond a reasonable doubt, and cannot be compelled to testify against himself.” Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 444 (1911). See Michaelson v. United States ex rel. Chicago, St. P., M. & O. R. Co., 266 U. S. 42, 66 (1924). Chief Justice Taft speaking for a unanimous Court in Cooke v. United States, 267 U. S. 517, 537 (1925), said:

“Due process of law, therefore, in the prosecution of contempt, except of that committed in open court, requires that the accused should be advised of the charges and have a reasonable opportunity to meet them by way of defense or explanation. We think this includes the assistance of counsel, if requested, and the right to call witnesses to give testimony, relevant either to the issue of complete exculpation or in extenuation of the offense and in mitigation of the penalty to be imposed.”

Cf. Blackmer v. United States, 284 U. S. 421, 440 (1932). It has also been recognized that the defendant in criminal contempt proceedings is entitled to a public trial before an unbiased judge, In re Oliver, 333 U. S. 257 (1948); Offutt v. United States, 348 U. S. 11 (1954); see Ungar v. Sarafite, 376 U. S. 575 (1964); but cf. Levine v. United States, 362 U. S. 610 (1960). In the federal system many of the procedural protections available to criminal contemnors are set forth in Fed. Rule Crim. Proc. 42.

Judicial concern has not been limited to procedure. In Toledo Newspaper Co. v. United States, 247 U. S. 402 (1918), the Court endorsed a broad construction of the language of the Act of 1831 permitting summary-trial of contempts “so near [to the court] as to obstruct the administration of justice.” It required only that the conduct have a “tendency to prevent and obstruct the discharge of judicial duty Id., at 419. See Craig v. Hecht, 263 U. S. 255, 277 (1923). This view proved aberrational and was overruled in Nye v. United States, 313 U. S. 33, 47-52 (1941), which narrowly limited the conduct proscribed by the 1831 Act to “misbehavior in the vicinity of the court disrupting to quiet and order or actually interrupting the court in the conduct of its business.” Id., at 52. Cf. Toledo Newspaper Co. v. United States, supra, at 422 (Holmes, J., dissenting). The congressional purpose to fence in the power of the federal courts to punish contempt summarily was further implemented in Cammer v. United States, 350 U. S. 399, 407-408 (1956). A lawyer, the Court held, “is not the kind of ‘officer’ who can be summarily tried for contempt under 18 U. S. C. § 401 (2).” In another development, the First Amendment was invoked to ban punishment for a broad category of arguably contemptuous out-of-court conduct. Bridges v. California, 314 U. S. 252 (1941); Pennekamp v. Florida, 328 U. S. 331 (1946); Craig v. Harney, 331 U. S. 367 (1947). Finally, over the years in the federal system there has been a recurring necessity to set aside punishments for criminal contempt as either unauthorized by statute or too harsh. E. g., Ex parte Robinson, 19 Wall. 505 (1874); United States v. United Mine Workers, 330 U. S. 258 (1947); Yates v. United States, 355 U. S. 66 (1957).

This course of events demonstrates the unwisdom of vesting the judiciary with completely untrammeled power to punish contempt, and makes clear the need for effective safeguards against that power’s abuse. Prosecutions for contempt play a significant role in the proper functioning of our judicial system; but despite the important values which the contempt power protects, courts and legislatures have gradually eroded the power of judges to try contempts of their own authority. In modern times, procedures in criminal contempt cases have come to mirror those used in ordinary criminal cases. Our experience teaches that convictions for criminal contempt, not infrequently resulting in extremely serious penalties, see United States v. Barnett, 376 U. S. 681, 751 (Goldberg, J., dissenting), are indistinguishable from those obtained under ordinary criminal laws. If the right to jury trial is a fundamental matter in other criminal cases, which we think it is, it must also be extended to criminal contempt cases.

III.

Nor are there compelling reasons for a contrary result. As we read the earlier cases in this Court upholding the power to try contempts without a jury, it was not doubted that the summary power was subject to abuse or that the right to jury trial would be an effective check. Rather, it seems to have been thought that summary power was necessary to preserve the dignity, independence, and effectiveness of the judicial process— “To submit the question of disobedience to another tribunal, be it a jury or another court, would operate to deprive the proceeding of half its efficiency.” In re Debs, 158 U. S. 564, 595 (1895). It is at this point that we do not agree: in our judgment, when serious punishment for contempt is contemplated, rejecting a demand for jury trial cannot be squared with the Constitution or justified by considerations of efficiency or the desirability of vindicating the authority of the court.

We cannot say that the need to further respect for judges and courts is entitled to more consideration than the interest of the individual not to be subjected to serious criminal punishment without the benefit of all the procedural protections worked out carefully over the years and deemed fundamental to our system of justice. Genuine respect, which alone can lend true dignity to our judicial establishment, will be engendered, not by the fear of unlimited authority, but by the firm administration of the law through those institutionalized procedures which have been worked out over the centuries.

We place little credence in the notion that the independence of the judiciary hangs on the power to try contempts summarily and are not persuaded that the additional time and expense possibly involved in submitting serious contempts to juries will seriously handicap the effective functioning of the courts. We do not deny that serious punishment must sometimes be imposed for contempt, but we reject the contention that such punishment must be imposed without the right to jury trial. The goals of dispatch, economy, and efficiency are important, but they are amply served by preserving the power to commit for civil contempt and by recognizing that many contempts are not serious crimes but petty offenses not within the jury trial provisions of the Constitution. When a serious contempt is at issue, considerations of efficiency must give way to the more fundamental interest of ensuring the even-handed exercise of judicial power. In isolated instances recalcitrant or irrational juries may acquit rather than apply the law to the case before them. Our system has wrestled with this problem for hundreds of years, however, and important safeguards have been devised to minimize miscarriages of justice through the malfunctioning of the jury system. Perhaps to some extent we sacrifice efficiency, expedition, and economy, but the choice in favor of jury trial has been made, and retained, in the Constitution. We see no sound reason in logic or policy not to apply it in the area of criminal contempt.

Some special mention of contempts in the presence of the judge is warranted. Rule 42 (a) of the Federal Rules of Criminal Procedure provides that “[a] criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court.” This rule reflects the common-law rulé which is widely if not uniformly followed in the States. Although Rule 42 (a) is based in part on the premise that it is not necessary specially to present the facts of a contempt which occurred in the very presence of the judge, it also rests on the need to maintain order and a deliberative atmosphere in the courtroom. The power of a judge to quell disturbance cannot attend upon the impaneling of a jury. There is, therefore, a strong temptation to make exception to the rule we establish today for disorders in the courtroom. We are convinced, however, that no such special rule is needed. It is old law that the guarantees of jury trial found in Article III and the Sixth Amendment do not apply to petty offenses. Only today we have reaffirmed that position. Duncan v. Louisiana, supra, at 159-162. By deciding to treat criminal contempt like other crimes insofar as the right to jury trial is concerned, we similarly place it under the rule that petty crimes need not be tried to a jury.

IV.

Petitioner Bloom was held in contempt of court for filing a spurious will for probate. At his trial it was established that the putative testator died on July 6, 1964, and that after that date Pauline Owens, a practical nurse for the decedent, engaged Bloom to draw and execute a will in the decedent’s name. The will was dated June 21, 1964. Bloom knew the will was false when he presented it for admission in the Probate Division of the Circuit Court of Cook County. The State’s Attorney of that county filed a complaint charging Bloom with contempt of court. At trial petitioner’s timely motion for a jury trial was denied. Petitioner was found guilty of criminal contempt and sentenced to imprisonment for 24 months. On direct appeal to the Illinois Supreme Court, his conviction was affirmed. That court held that neither state law nor the Federal Constitution provided a right to jury trial in criminal contempt proceedings. 35 Ill. 2d 255, 220 N. E. 2d 475 (1966). We granted certiorari, 386 U. S. 1003 (1967).

Petitioner Bloom contends that the conduct for which he was convicted of criminal contempt constituted the crime of forgery under Ill. Rev. Stat., c. 38, § 17-3. Defendants tried under that statute enjoy a right to jury trial and face a possible sentence of one to 14 years, a fine not to exceed $1,000, or both. Petitioner was not tried under this statute, but rather was convicted of criminal contempt. Under Illinois law no maximum punishment is provided for convictions for criminal contempt. People v. Stollar, 31 Ill. 2d 154, 201 N. E. 2d 97 (1964). In Duncan we have said that we need not settle “the exact location of the line between petty offenses and serious crimes” but that “a crime punishable by two years in prison is ... a serious crime and not a petty offense.” Supra, at 161, 162. Bloom was sentenced to imprisonment for two years. Our analysis of Barnett, supra, and Cheff v. Schnackenberg, 384 U. S. 373. makes it clear that criminal contempt is not a crime of the sort that requires the right to jury trial regardless of the penalty involved. Under the rule in Cheff, when the legislature has not expressed a judgment as to the seriousness of an offense by fixing a maximum penalty Which may be imposed, we are to look to the penalty actually imposed as the best evidence of the seriousness of the offense. See Duncan, supra, at 162, n. 35. Under this rule it is clear that Bloom was entitled to the right to trial by jury, and it was constitutional error to deny him that right. Accordingly, we reverse and remand for proceedings not inconsistent with this opinion.

Reversed and remanded.

Mr. Justice Fortas,

concurring.

I join the judgments and opinions of the Court in these cases because I agree that the Due Process Clause of the Fourteenth Amendment requires that the States accord the right to jury trial in prosecutions for offenses that are not, petty. A powerful reason for reaching this conclusion is that the Sixth Amendment to the Constitution guarantees the right to jury trial in federal prosecutions for such offenses. It is, of course, logical and reasonable that in seeking, from time to time, the content of “due process of law/’ we should look to and be guided by the great Bill of Rights in our Constitution. Considerations of the practice of the forum States, of the States generally, and of the history and office of jury trials are also relevant to our task. I believe, as my Brother White’s opinion for the Court in Duncan v. Louisiana persuasively argues, that the right to jury trial in major prosecutions, state as well as federal, is so fundamental to the protection of justice and liberty that “due process of law” cannot be accorded without it.

It is the progression of history, and especially the deepening realization of the substance and procedures that justice and the demands of human dignity require, which has caused this Court to invest the command of “due process of law” with increasingly greater substance. The majority lists outstanding stations in this progression, ante, at 147-148. This Court has not been alone in its progressive recognition of the content of the great phrase which my Brother White describes as “spacious language” and Learned Hand called a “majestic generality.” The Congress, state courts, and state legislatures have moved forward with the advancing conception of human rights in according procedural as well as substantive rights to individuals accused of conflict with the criminal laws.

But although I agree with the decision of the Court, I cannot agree with the implication, see ante, at 158-159, n. 30, that the tail must go with the hide: that when we hold, influenced by the Sixth Amendment, that “due process” requires that the States accord the right of jury trial for all but petty offenses, we automatically import all of the ancillary rules which have been or may hereafter be developed incidental to the right to jury trial in the federal courts. I see no reason whatever, for example, to assume that our decision today should require us to impose federal requirements such as unanimous verdicts or a jury of 12 upon the States. We may well conclude that these and other features of federal jury practice are by no means fundamental — that they are not essential to due process of law — and that they are not obligatory on the States.

I would make these points clear today. Neither logic nor history nor the intent of the draftsmen of the Fourteenth Amendment can possibly be said to require that the Sixth Amendment or its jury trial provision be applied to the States together with the total gloss that this Court’s decisions have supplied. The draftsmen of the Fourteenth Amendment intended what they said, not more or less: that no State shall deprive any person of life, liberty, or property without due process of law. It is ultimately the duty of this Court to interpret, to ascribe specific meaning to this phrase. There is no reason whatever for us to conclude that, in so doing, we are bound slavishly to follow not only the Sixth Amendment but all of its bag and baggage, however securely or insecurely affixed they may be by law and precedent to federal proceedings. To take this course, in my judgment, would be not only unnecessary but mischievous because it would inflict a serious blow upon the principle of federalism. The Due Process Clause commands us to apply its great standard to state court proceedings to assure basic fairness. It does not command us rigidly and arbitrarily to impose the exact pattern of federal proceedings upon the 50 States. On the contrary, the Constitution’s command, in my view, is that in our insistence upon state observance of due process, we should, so far as possible, allow the greatest latitude for state differences. It requires, within the limits of the lofty basic standards that it prescribes for the States as well as the Federal Government, maximum opportunity for diversity and minimal imposition of uniformity of method and detail upon the States. Our Constitution sets up a federal union, not a monolith.

This Court has heretofore held that various provisions of the Bill of Rights such as the freedom of speech and religion guarantees of the First Amendment, the prohibition of unreasonable searches and seizures in the Fourth Amendment, the privilege against self-incrimination of the Fifth Amendment, and the right to counsel and to confrontation under the Sixth Amendment “are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.” Malloy v. Hogan, 378 U. S. 1, 10 (1964); Pointer v. Texas, 380 U. S. 400, 406 (1965); Miranda v. Arizona, 384 U. S. 436, 464 (1966). I need not quarrel with the specific conclusion in those specific instances. But unless one adheres slavishly to the incorporation theory, body and substance, the same conclusion need not be superimposed upon the jury trial right. I respectfully but urgently suggest that it should not be. Jury trial is more than a principle of justice applicable to individual cases. It is a system of administration of the business of the State. While we may believe (and I do believe) that the right of jury trial is fundamental, it does not follow that the particulars of according that right must be uniform. We should be ready to welcome state variations which do not impair — indeed, which may advance — the theory and purpose of trial by jury.

Mr. Justice Harlan,

whom Mr. Justice Stewart joins,

dissenting.

I dissent for the reasons expressed in my dissenting opinion in Duncan v. Louisiana, ante, p. 171, and in my separate opinion in Cheff v. Schnackenberg, 384 U. S. 373, 380. See also United States v. Barnett, 376 U. S. 681; Green v. United States, 356 U. S. 165.

This case completes a remarkable circle. In Duncan, supra, the Court imposed on the States a rule of procedure that was neither shown to be fundamental to procedural fairness nor held to be part of the originally understood content of the Fourteenth Amendment. The sole justification was that the rule was found in the Bill of Rights. The Court now, without stating any additional reasons, imposes on the States a related rule that, as recently as Cheff v. Schnackenberg, supra, the Court declined to find in the Bill of Rights. That the words of Mr. Justice Holmes, inveighing against a century of “unconstitutional assumption of [state] powers by the Courts of the United States” in derogation of the central premise of our Constitution, should be invoked to support. the Court's action here can only be put down to the vagaries of the times.

       Many more cases have supported the rule that courts may punish criminal contempt summarily, or accepted that rule without question. See cases collected in Green v. United States, 356 U. S. 165, 191, n. 2 (1958) (concurring opinion); United States v. Barnett, 376 U. S. 681, 694, n. 12 (1964). The list of the Justices of this Court who have apparently subscribed to this view is long. See Green v. United States, supra, at 192.
      The argument that the power to punish contempt was an inherent power of the courts not subject to regulation by Congress was rejected in Michaelson v. United States ex rel. Chicago, St. P., M. & O. R. Co., 266 U. S. 42, 65-67 (1924), which upheld the maximum sentence and jury trial provisions of the Clayton Act. Cf. Lar-remore, Constitutional Regulation of Contempt of Court, 13 Harv. L. Rev. 615 (1900).

       Blackstone’s description of the common-law practice in contempt cases appears in 4 Commentaries on the Laws of England 286-287:
      “The process of attachment for these and the like contempts must necessarily be as ancient as the laws themselves; for laws without a competent authority to secure their administration from disobedience and contempt would be vain and nugatory. A power, therefore, in the supreme courts of justice, to suppress such contempts by an immediate attachment of the offender results from the first principles of judicial establishments, and must be an inseparable attendant upon every superior tribunal.
      “If the contempt be committed in the face of the court, the offender may be instantly apprehended and imprisoned, at the discretion of the judges, without any further proof or examination. But in matters that arise at a distance, and of which the court cannot have so perfect a knowledge, unless by the confession of the party or the testimony of others, if the judges upon affidavit see sufficient ground to suspect that a contempt has been committed, they either make a rule on the suspected party to show cause why an attachment should not issue against him, or, in very flagrant instances of contempt, the attachment issues in the first instance; as it also does if no sufficient cause be shown to discharge; and thereupon the court confirms and makes absolute the original rule.” And see id., at 280. A similar account is contained in 2 W. Hawkins, A Treatise of the Pleas of the Crown 4, 141 (2d ed. 1724).
      Of course, “Blackstone’s Commentaries are accepted as the most satisfactory exposition of the common law of England. . . . [U]n-doubtedly the framers of the Constitution were familiar with it.” Schick v. United States, 195 U. S. 65, 69 (1904).
      Blackstone, however, was acutely aware that this practice was a significant departure from ordinary principles: “It cannot have escaped the attention of the reader that this method of making the defendant answer upon oath to a criminal charge is not agreeable to the genius of the common law in any other instance . . . .” 4 Blackstone, supra, at 287.
      The unalloyed doctrine that by “immemorial usage” all criminal contempts could be tried summarily seems to derive from Mr. Justice (later Chief Justice) Wilmot’s undelivered opinion in The King v. Almon (1765), first brought to public light by the posthumous publication of his papers, Wilmot, Notes 243 (1802), reprinted in 97 Eng. Rep. 94. Wilmot’s opinion appears to have been the source of Blackstone’s view, but did not become an authoritative part of the law of England until Rex v. Clement, 4 Barn. & Ald. 218, 233, 106 Eng. Rep. 918, 923 (K. B. 1821). Cf. Roach v. Garvan, 2 Atk. 469, 26 Eng. Rep. 683 (Ch. 1742). See discussion in 8 How. St. Tr. 14, 22-23, 49-59, and the subsequent civil action, Burdett v. Abbot, 14 East 1, 138, 104 Eng. Rep. 501, 554 (K. B. 1811); 4 Taunt. 401, 128 Eng. Rep. 384 (Ex. 1812); 5 Dow 165, 202, 3 Eng. Rep. 1289, 1302 (H. L. 1817). The historical authenticity of this view has been vigorously challenged, initially by Solly-Flood, The Story of Prince Henry of Monmouth and Chief-Justice Gascoign, 3 Transactions of the Royal Historical Society (N. S.) 47, 61-64, 147-150 (1886). This led to the massive reappraisal of the contempt power undertaken by Sir John Fox: The King v. Almon, Pts. 1 & 2, 24 L. Q. Rev. 184, 266 (1908); The Summary Process to Punish Contempt, Pts. 1 & 2, 25 L. Q. Rev. 238, 354 (1909); Eccentricities of the Law of Contempt of Court, 36 L. Q. Rev. 394 (1920); The Nature of Contempt of Court, 37 L. Q. Rev. 191 (1921); The Practice in Contempt of Court Cases, 38 L. Q. Rev. 185 (1922); The Writ of Attachment, 40 L. Q. Rev. 43 (1924); J. Fox, The History of Contempt of Court (1927). On contempt generally, see R. Goldfarb, The Contempt Power (1963).
      Learned writers have interpreted Fox’s work as showing that until the late 17th or early 18th centuries, apart from the extraordinary proceedings of the Star Chamber, English courts neither had, nor claimed, power to punish contempts, whether in or out of court, by summary process. Frankfurter .& Landis, Power of Congress over Procedure in Criminal Contempts in “Inferior” Federal Courts — A Study in Separation of Powers, 37 Harv. L. Rev. 1010, 1042-1052 (1924). Cf. J. Oswald, Contempt of Court 3, n. (g) (Robertson ed., 1910). Fox’s own appraisal of the evidence, however, seems to have been that prior to the 18th century there probably was no valid basis for summary punishment of a libel on the court by a stranger to the proceedings, but that summary punishment for contempts outside the court consisting in resistance to a lawful process or order of the court, or contumacious behavior by an officer of the court, was probably permissible. J. Fox, The History of Contempt of Court 4, 49-50, 98-100, 108-110, 208-209 (1927); Fox, The Summary Process to Punish Contempt, Pt. 1, 25 L. Q. Rev. 238, 244-246 (1909). Although jury trials had been provided in some instances of contempt in the face of the court, Fox does not seem to have questioned that such contempts could be punished summarily. J. Fox, The History of Contempt of Court 50 (1927).
      We do not find the history of criminal contempt sufficiently simple or unambiguous to rest rejection of our prior decisions entirely on historical grounds, particularly since the Court has been aware of Solly-Flood’s and Fox’s work for many years. See Gompers v. United States, 233 U. S. 604, 611 (1914); Michaelson v. United States ex rel. Chicago, St. P., M. & O. R. Co., 266 U. S. 42, 66-67 (1924); Green v. United States, 356 U. S. 165, 185, n. 18 (1958). In any event, the ultimate question is not whether the traditional doctrine is historically correct but whether the rule that criminal contempts are never entitled to a jury trial is a necessary or an acceptable construction of the Constitution. Cf. Thompson v. Utah, 170 U. S. 343, 350 (1898).

       See also New Orleans v. The Steamship Co., 20 Wall. 387, 392 (1874) (“[c]ontempt of court is a specific criminal offence”); O’Neal v. United States, 190 U. S. 36, 38 (1903) (an adjudication for contempt is “in effect a judgment in a criminal case”); Bessette v. W. B. Conkey Co., 194 U. S. 324, 336 (1904) (that criminal contempt proceedings are “criminal in their nature has been constantly affirmed”); Michaelson v. United States ex rel. Chicago, St. P., M. & O. R. Co., 266 U. S. 42, 66 (1924) (“[t]he fundamental characteristics of both [crimes and criminal contempts] are the same”); Green v. United States, 356 U. S. 165, 201 (1958) (BlacK, J., dissenting) (“criminal contempt is manifestly a crime by every relevant test of reason or history”). The Court also held in Bessette, supra, at 335, that criminal contempt “'cannot be considered as an infamous crime.”

       “That contempt power over counsel, summary or otherwise, is capable of abuse is certain. Men who make their way to the bench sometimes exhibit vanity, irascibility, narrowness, arrogance, and other weaknesses to which human flesh is heir.” Sacher v. United States, 343 U. S. 1, 12 (1952). See also Ex parte Hudgings, 249 U. S. 378 (1919); Nye v. United States, 313 U. S. 33 (1941); Cammer v. United States, 350 U. S. 399 (1956).

       Section 1 of the Act of 1831 stated:
      “That the power of the several courts of the United States to issue attachments and inflict summary punishments for contempts of court, shall not be construed to extend to any cases except the misbehaviour of any person or persons in the presence of the said courts, or so near thereto as to obstruct the administration of justice, the mis-behaviour of any of the officers of the said courts in their official transactions, and the disobedience or resistance by any officer of the said courts, party, juror, witness, or any .other person or persons, to any lawful writ, process, order, rule, decree, or command of the said courts.” Fox concluded that the 1831 Act was in accord with the general common law of England. See J. Fox, The History of Contempt of Court 208 (1927). Section 2 of the Act provided for prosecution by the regular criminal procedures of those guilty of obstruction of justice. See generally Nelles & King, Pts. 1 & 2, Contempt by Publication in the United States, 28 Col. L. Rev. 401, 525 (1928).

       At a later date, when passing the Clayton Act, Congress focused its attention on conduct which was not only criminally contemptuous but which also constituted other crimes under federal or state law. Contempts of this nature, unless committed in the presence of the court or so near thereto as to obstruct justice, or unless they involved disobedience to a court writ, process, order, or decree in a case brought by the United States, were required to be tried to a jury, and the possible punishment was limited to six months, a fine of $1,000, or both. 38 Stat. 738, § 21, now 18 U. S. C. § 402. Circumscription of the contempt power was carried further in the Norris-LaGuardia Act, which extended the right to jury trial to contempt cases arising out of injunctions issued in labor disputes. 47 Stat. 72, § 11, now 18 U. S. C. § 3692. The Civil Rights Act of 1957, 71 Stat. 638, § 151, 42 U. S. C. § 1995, provides a right to a de novo trial by jury to all criminal contemnors convicted in cases arising under the Act who are fined in excess of $300 or sentenced to imprisonment for more than 45 days, exception being made for contempts committed in the presence of the court or so near thereto as to obstruct justice, and misbehavior, misconduct, or disobedience of any officer of the court. The Civil Rights Act of 1964, 78 Stat. 268, § 1101, 42 U. S. C. § 2000h, provides a right to jury trial in all proceedings for criminal contempt arising under the Act, and limits punishment to a fine of $1,000 or imprisonment for six months. Again exception is made for contempts committed in the presence of the court, or so near thereto as to obstruct justice, and for the misbehavior, misconduct, or disobedience of court officers. Proof of criminal mens rea is specifically required. See Goldfarb & Kurzman, Civil Rights v. Civil Liberties: The Jury Trial Issue, 12 U. C. L. A. L. Rev. 486, 496-506 (1965).

       It has also been held that a defendant in criminal contempt proceedings is eligible for executive pardon, Ex parte Grossman, 267 U. S. 87 (1925), and entitled to the protection of the statute of limitations, Gompers v. United States, 233 U. S. 604, 611-613 (1914); Pendergast v. United States, 317 U. S. 412 (1943).

       Limitations on the maximum penalties for criminal contempt are common in the States. According to Note, Constitutional Law: The Supreme Court Constructs a Limited Right to Trial by Jury for Federal Criminal Contemnors, 1967 Duke L. J. 632, 654, n. 84, in 26 States the maximum penalty that can be imposed in the absence of a jury trial is six months or less, in three States a jury trial must be provided upon demand of the defendant, in three other States the maximum penalty cannot exceed one year (this group of States includes Illinois, however, which, as the present case demonstrates, has no such limitation), in 15 States there is either no limitation upon the maximum penalty which may be imposed, or else that maximum exceeds one year, and finally, in three States, while there are statutes relating to particular kinds of contempt, there are no general contempt provisions. Independent examination suggests that the available materials concerning the law of contempt in some States are such that precise computation is difficult. It is clear, however, that punishment for contempt is limited to one year or less in over half the States.
      Most other Western countries seem to be highly restrictive of the latitude given judges to try their own contempts without a jury. See Jann, Contempt of Court in Western Germany, 8 Am. U. L. Rev. 34 (1959); Bigelow, Contempt of Court, 1 Crim. L. Q. 475 (1959); Pekelis, Legal Techniques and Political Ideologies: A Comparative Study, 41 Mich. L. Rev. 665 (1943). By contrast, there was no right of appeal against a conviction for criminal contempt in England until the Administration of Justice Act, 1960, 8 & 9 Eliz. 2, c. 65. See Hamon, Civil and Criminal Contempts of Court, 25 Mod. L. Rev. 179 (1962).

      [This opinion applies also to No. 410, Duncan v. Louisiana, ante, p. 145.]

       See, e. g., Bail Reform Act of 1966, Pub. L. 89-465, 18 U. S. C. §3141 et seq. (1964 ed., Supp. II); Criminal Justice Act of 1964, Pub. L. 88-455, 18 U. S. C. § 3006A; Jury Selection and Service Act of 1968, Pub. L. 90-274, 82 Stat. 53; Schowgurow v. State, 240 Md. 121, 213 A. 2d 475 (1965); Note, The Proposed Penal Law of New York, 64 Col. L. Rev. 1469 (1964).

        Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U. S. 518, 532, at 533 (dissenting opinion, quoted ante, at 198).


author:
Me. Justice White Mr. Justice Harlan,
      Mr. Justice Black,

text:
    DYKE et al. v. TAYLOR IMPLEMENT MANUFACTURING CO., INC.
    No. 149.
    Argued January 18, 1968.
    Decided May 20, 1968.

      Michael H. Gottesman argued the cause for petitioners. With him on the briefs were Bernard Kleiman, Elliot Bredhoff, George H. Cohen, George Longshore, and Tom J. Taylor.

      Allen H. Carter argued the cause for respondent. With him on the brief were Foster D. Arnett and S. Randolph Ayres.

   Me. Justice White

delivered the opinion of the Court.

Petitioners, Wayne Dyke, Ed McKinney, and John Blackwell, were found guilty of criminal contempt by the Chancery Court of McMinn County, Tennessee. All three were given the maximum sentence authorized by statute, 10 days in jail and a $50 fine. The Tennessee Supreme Court affirmed, rejecting contentions that the convictions violated the Federal Constitution because a jury trial was denied and because testimony concerning a gun, allegedly discovered during an unconstitutional search, was admitted at trial. Petitioners raised both challenges in their petition for a writ of certiorari, and we granted the writ. 389 U. S. 815 (1967).

In connection with a labor dispute, McMinn County Chancery Court issued, on January 24, 1966, an injunction against, inter alia,

“inflicting harm or damage upon the persons or property of [respondent Taylor Implement Company’s] employees, customers, visitors or any other persons.”

On the night of February 25, 1966, a car was seen to drive past the home of Lloyd Duckett, a nonstriking Taylor Implement employee who lived in Monroe County, which adjoins McMinn. Shots were fired from the car at or into the Duckett home. Robert Wayne Ellis, Duckett’s son-in-law, was standing in the front yard with another son-in-law, Dale Harris; Ellis fired back at the car with a pistol, and thought his first shot hit the back of the car. Ellis informed Monroe County Sheriff Howard Kirkpatrick by telephone, and soon after, Monroe Deputy Sheriff Loyd Powers, contacted by Kirkpatrick on his radio and presumably told of the crime, spotted a suspicious car and began following it. The car raced away but was stopped by Athens, Tennessee, policemen, notified by Powers of a speeding car heading for Athens. When Powers reached the stopped car, which contained the three petitioners, he and the Athens policemen took them to McMinn County jail, and parked their car outside the jail. While petitioners were waiting inside the jail, Powers and several Athens policemen searched the car. Under the front seat they found an air rifle. At trial there was testimony that Ellis and Harris had recognized the car from which shots were fired as a two-tone 1960 or 1961 Dodge, that Ellis thought he hit the back of the Dodge with one shot, that the car stopped in Athens was a 1960 Dodge with a fresh bullet hole through the trunk lid, that an air rifle pellet was found the next day outside the Duckett home, and that an air rifle was found under the car’s seat. The chancellor noted that the case against petitioners was “premised entirely upon circumstantial evidence” but that nonetheless he had “no trouble at all with the proof which I have heard and I have weighed it in its severest form, that the charges made must be proven beyond a reasonable doubt.” The three petitioners were found guilty.

Petitioners’ first claim is that the Fourteenth Amendment was violated when their request for trial by jury was denied. We have held today, in Duncan v. Louisiana, ante, p. 145, that the Fourteenth Amendment imposes upon the States the requirement of Article III and the Sixth Amendment that jury trials be available to criminal defendants. We have also held, in Bloom v. Illinois, ante, p. 194, that prosecutions for criminal contempt are within the constitutional guarantee. The Bloom and Duncan cases, however, have reaffirmed the view that the guarantee of jury trial does not extend to petty crimes. As Bloom makes clear, supra, at 195-200, criminal contempt has always been thought not to be a crime of the sort that requires a jury trial regardless of the penalty authorized. Alleged criminal contemnors must be given a jury trial, therefore, unless the legislature has authorized a maximum penalty within the “petty offense” limit or, if the legislature has made no judgment about the maximum penalty that can be imposed, unless the penalty actually imposed is within that limit. This Court has not had occasion to state precisely where the line falls between punishments that can be considered “petty” and those that cannot be. From Cheff v. Schnackenberg, 384 U. S. 373 (1966), it is clear that a six-month sentence is short enough to be “petty.” That holding is sufficient for resolution of this case. Here the maximum penalty which Tennessee statutes permitted the chancellor to impose was 10 days in jail and a fine of $50. The contempt was therefore a “petty offense,” and petitioners had no federal constitutional right to a jury trial.

Petitioners next contend that admission at trial, over timely objection, of evidence concerning the discovery of an air rifle under the seat of the car in which they were riding when arrested violated the Fourth and Fourteenth Amendments. The State concedes that the search was without a warrant, but asserts that it was not in violation of the Constitution because “reasonable.” While the record is not entirely clear, petitioners appear to have been arrested for reckless driving. Whether or not a car may constitutionally be searched “incident” to arrest for a traffic offense, the search here did not take place until petitioners were in custody inside the courthouse and the car was parked on the street outside. Preston v. United States, 376 U. S. 364 (1964), holds that under such circumstances a search is “too remote in time or place to [be] incidental to the arrest . . . .” 376 U. S., at 368.

The search in question here is not saved by Cooper v. California, 386 U. S. 58 (1967), which upheld a war-rantless search of a car impounded “as evidence” pursuant to a state statute. The police there were required to seize the car and to keep it until forfeiture proceedings could be completed. In those circumstances, said the Court, “[i]t would be unreasonable to hold that the police, having to retain the car in their custody for such a length of time, had no right, even for their own protection, to search it.” 386 U. S., at 61-62. In the. instant case there is no indication that the police had purported to impound or to hold the car, that they were authorized by any state law to do so, or that their search of the car was intended to implement the purposes of such custody. Here the police seem to have parked the car near the courthouse merely as a convenience to the owner, and to have been willing for some friend or relative of McKinney (or McKinney himself if he were soon released from custody) to drive it away. The reasons that made the warrantless search in Cooper reasonable thus do not apply to the search here. The Court discussed in Cooper, 386 U. S., at 61, the reasons why that case was distinguishable from Preston. The case before us is like Preston and unlike Cooper according to each of the distinguishing tests set forth in the Cooper opinion.

Automobiles, because of their mobility, may be searched without a warrant upon facts not justifying a warrantless search of a residence or office. Brinegar v. United States, 338 U. S. 160 (1949); Carroll v. United States, 267 U. S. 132 (1925). The cases so holding have, however, always insisted that the officers conducting the search have “reasonable or probable cause” to believe that they will find the instrumentality of a crime or evidence pertaining to a crime before they begin their warrantless search. The record before us does not contain evidence that Sheriff Kirkpatrick, Deputy Sheriff Powers, or the officers who assisted in the search had reasonable or probable cause to believe that evidence would be found in petitioners’ car. Powers had not been told that Harris and Ellis had identified the car from which shots were fired as a 1960 or 1961 Dodge. He testified:

“All I got is just that it would be an old make model car. Kinda old make model car.”

The record also contains no suggestion that Ellis told Sheriff Kirkpatrick, Deputy Sheriff Powers, or any other law enforcement official that he had fired at the Dodge or that he thought he had hit it with one bullet. As far as this record shows, Powers knew only that the car he chased was “an old make model car,” that it speeded up when he chased it, and that it contained a fresh bullet hole. The evidence placed upon the record is insufficient to justify a conclusion that McKinney’s car was searched with “reasonable or probable cause” to believe the search would be fruitful.

Since the search was not shown to have been based upon sufficient cause, we need not reach the question whether Carroll and Brinegar, supra, extend to a warrant-less search, based upon probable cause, of an automobile which, having been stopped originally on a highway, is parked outside a courthouse.

Because evidence was admitted without a satisfactory showing that it was obtained in compliance with the Fourth and Fourteenth Amendments, the judgment below is reversed and the case is remanded to the Tennessee Supreme Court for disposition not inconsistent with this opinion.

Reversed and remanded.

Mr. Justice Harlan,

whom Mr. Justice Stewart joins,

concurring.

I concur in the judgment in this case, and in that part of the Court’s opinion dealing with the admission at petitioners’ trial of evidence produced by an unlawful search.

Mr. Justice Black,

with whom Mr. Justice Douglas joins,

dissenting.

The Court holds in this case, as it said in dictum in Bloom v. Illinois, ante, p. 194, that persons charged with so-called “petty” crimes are not entitled to trial by jury. I am not as sure as the Court seems to be that this classification should be used to deprive a criminal defendant of a jury trial. See my dissenting opinion in Green v. United States, 356 U. S. 165, 193-219. The word “petty” has no exact meaning, and until it is given a better definition than that which the Court gives to it today, I do not desire to condemn the right to trial by jury to such an uncertain fate. See Cheff v. Schnackenberg, 384 U. S. 373, 384-393 (dissenting opinion). My Brother Harlan’s dissent in Duncan v. Louisiana, ante, p. 171, points out that whippings, even where 31 lashes were inflicted, were classified as petty crimes. And the Court here states that six months’ punishment is petty. I am loath to hold whippings or six months’ punishment as “petty.” And here, where the offense is punishable by a $50 fine and 10 days in jail behind bars, I feel the same way. Even though there be some offenses that are “petty,” I would not hold that this offense falls in that category. See my dissenting opinion in United States v. Barnett, 376 U. S. 681, 727. Since I would reverse and remand this case for a trial by jury, I do not find it necessary to consider the other questions decided by the Court.

       Tenn. Code Ann. § 23-903 (1955): “The punishment for contempt may be by fine or imprisonment, or both; but where not otherwise specially provided, the circuit, chancery, and appellate courts are limited to a fine of fifty dollars ($50.00), and imprisonment not exceeding ten (10) days, and all other courts are limited to a fine of ten dollars ($10.00).”

        Sub nom. Taylor Implement Mfg. Co., Inc. v. United Steelworkers of America, 219 Tenn. 472, 410 S. W. 2d 881 (1966), rehearing denied, 219 Tenn. 481, 410 S. W. 2d 885 (1967).

       This claim by petitioners is based on the Fourteenth Amendment, and respondent calls our attention to the fact that at trial and on appeal to the Tennessee Supreme Court petitioners pointed only to specific Bill of Rights provisions. The opinion below demonstrates that the Tennessee Supreme Court considered and rejected the contention that the Fourteenth Amendment and the Sixth Amendment, taken together, required that petitioners be given a jury trial. We have frequently held that a party is not barred by failure to cite below the proper constitutional provisions when the lower courts consider the relevant provisions. E. g., Braniff Airways, Inc. v. Nebraska State Bd. of Equalization and Assessment, 347 U. S. 590, 598-599 (1954); Gibbs v. Burke, 337 U. S. 773, 779 (1949).

       The record suggests that petitioners were told they were under arrest for reckless driving.

       The air rifle itself was not introduced. The trial judge treated it as “filed and withdrawn.”


author: Mr. Justice White Mr. Justice Fortas,

text:
    JOINT INDUSTRY BOARD OF THE ELECTRICAL INDUSTRY et al. v. UNITED STATES.
    No. 616.
    Argued March 25, 1968.
    Decided May 20, 1968.

      Harold Stem argued the cause for petitioners. With him on the brief for petitioner Joint Industry Board of the Electrical Industry was Norman Rothfeld. Max Schwartz filed a brief for petitioner Trustee in Bankruptcy of A & S Electric Corp.

      Lawrence G. Wallace argued the cause for the United States. On the brief were Solicitor General Griswold, Assistant Attorney General Rogovin, Harris Weinstein, and Crombie J. D. Garrett.

      J. Albert Woll, Laurence Gold, and Thomas E. Harris filed a brief for the American Federation of Labor and Congress of Industrial Organizations, as amicus curiae, urging reversal.
   Mr. Justice White

delivered the opinion of the Court.

Section 64a (2) of the Bankruptcy Act, 30 Stat. 563, 11 U. S. C. § 104(a)(2), grants priority over the claims of other creditors to “wages . . . due to workmen, . . the priority being limited to $600 and to wages earned within three months before the commencement of the proceedings. The question before us is whether priority under § 64a (2) must be accorded to an employer’s unpaid contributions to an employees’ annuity plan established by a collective bargaining contract. The referee and the District Court denied the priority and the Court of Appeals affirmed. In re A & S Electric Corp., 379 F. 2d 211 (C. A. 2d Cir. 1967). We granted certiorari, sub nom. Joint Industry Board of the Electrical Industry v. United States, 389 U. S. 969 (1967). We affirm the judgment.

The Annuity Plan of the Electrical Industry in New York City was established by a collective bargaining agreement between Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO, and four associations of electrical contractors. The plan covers all employees in the bargaining unit represented by the union and is funded by employer contributions of “Four Dollars ($4.00) per day for each day worked or each holiday for which payment is received by his employees . . . .” Payments are made to trustees who are empowered to collect and administer the contributions under the provisions of the plan. These trustees are the petitioners here. Contributions received by the trustees are credited to the account of the individual employees but are “payable to him only as hereinafter provided,” namely, upon death, retirement from the industry at age 60, permanent disability, entry into the Armed Forces, or ceasing to be a participant under the plan. Death benefits are paid only out of income, if available, and other benefits, though they may be payable in installments, will at a minimum return to the employee the total of the contributions credited to his name, without interest.

A & S Electric Corporation, an employer liable for contributions to the annuity plan, was adjudicated a bankrupt in 1963. The Joint Industry Board filed a claim which included $5,114 representing payments under the plan which fell due but were unpaid during the three months prior to the commencement of the proceedings. Priority for this amount was asserted under § 64a (2). The United States, with a fourth-class priority claim for unpaid taxes, objected to the allowance of the Joint Board’s priority claim. The referee and the courts agreed with the United States, holding that payments due to the Joint Board were not wages due to workmen, relying for this conclusion principally upon United States v. Embassy Restaurant, Inc., 359 U. S. 29 (1959).

We agree that Embassy Restaurant controls this case. There the claim was for unpaid employer contributions to a welfare fund, the contributions being $8 per month for each full-time employee; the fund provided life insurance, weekly sick benefits, hospital and surgical payments, and other advantages for covered employees. That claim, the Court held, was not entitled to § 64a (2) priority because payments to such a welfare fund did not satisfy the manifest purpose of the priority, which was “to enable employees displaced by bankruptcy to secure, with some promptness, the money directly due to them in back wages, and thus to alleviate in some degree the hardship that unemployment usually brings to workers and their families.” 359 U. S., at 32. The contributions involved there were payable to trustees, not to employees, and were disbursable to employees only on the occurrence of certain events, not including the bankruptcy of the employer. Neither the contributions nor the plan provided any immediate support for workmen during the period of financial distress.

The case before us concerns employer contributions to the welfare fund which are similarly not due the employees and never were; they were payable only to the trustees, who had the exclusive right to hold and manage the fund. Though the contributions were credited to individual employee accounts, nothing was payable to employees except upon the occurrence of certain events. Until death, retirement after age 60, permanent disability, entry into military service, or cessation of participation under the plan, no benefits were payable. Further, as the referee pointed out, the employee could not assign, pledge, or borrow against the contributions, or otherwise use them as his own. Quite obviously the annuity fund was not intended to relieve the distress of temporary unemployment, whether arising from the bankruptcy of the employer or for some other reason. Hence, if Embassy Restaurant is to be followed, the unpaid contributions in this case do not satisfy the fundamental purpose of the § 64a (2) priority for wages due to workmen.

Nor are we inclined to overrule Embassy Restaurant’s construction of § 64a (2). This is a matter more appropriately left to the Congress, which has not infrequently given attention to § 64a of the Bankruptcy Act and to the priorities it creates. The latest amendments to § 64a occurred in 1966, in the Acts of July 5, 1966, 80 Stat. 268 and 80 Stat. 271. Although the section was completely re-enacted in 1967, § 64a (2) was left unchanged despite the fact that in every Congress since Embassy Restaurant bills have been introduced to overrule or modify the result reached in that case.

Despite the general policy of the Bankruptcy Act to distribute assets of the estate equally to creditors, the priorities established in § 64a give priority to wages due workmen- up to $600 if earned within three months prior to bankruptcy. Other unpaid wages are allowable as general claims but are not entitled to priority. If delinquent contributions to welfare and annuity funds providing deferred benefits to employees were to have equal priority with wages payable directly to employees, the maximum payable immediately and directly to employees would be reduced whenever individual wage claims approached $600 or whenever the assets of the estate would not permit all wage claims to be paid in full. Also, increasing the amounts payable to second priority creditors would reduce the assets available for distribution to lower priority claimants and general creditors, including wage claimants not entitled to priority. Embassy Restaurant was decided nine years ago. If there is still any question as to whether claims for unpaid contributions to provide deferred benefits to employees should share the assets of bankrupts with general creditors or should be entitled to the limited priority granted wages due to workmen, any new resolution of that question should come from Congress.

Affirmed.

Mr. Justice Fortas,

with whom The Chief Justice and Mr. Justice Brennan join,

dissenting.

I do not agree that United States v. Embassy Restaurant, Inc., 359 U. S. 29 (1959)-, controls this case. I believe the employer’s unpaid contributions to the employees’ annuity plan are “wages . . . due to workmen” within § 64a (2) of the Bankruptcy Act. Those contributions accrued and unpaid within three months before the commencement of the bankruptcy proceedings are entitled to the statutory priority.

In this case, the employees and the employer agreed, in a collective bargaining agreement, that the employer would compensate each employee with stipulated wages and, additionally, $4 per day “for each day worked or each holiday . . . .” The latter sum, instead of being paid directly to the employees, was remitted to trustees of an annuity plan. In the accounts of the plan, the sum remitted for each employee, and measured by his days of work, was credited to that employee. The employee was entitled to receive the sum credited to his account upon retirement from the industry at age 60, death, permanent disability, entrance into the Armed Forces, or ceasing to be a participant under the plan by leaving the electrical industry or by accepting employment with some electrical company that is not covered by the collective bargaining agreement.

It is unmistakably clear (1) that the sums in question were to be paid as part of the wage bargain between employer and employee; (2) that the sum due each employee was specifically related to and measured by his work; (3) that the sum which each employee earned was accounted for separately and individually; he was entitled to the amount paid to the trustee on account of his individual labor; and (4) that inevitably, as sure as death, there was to come a point of time when the sum remitted to the trustee on account of each individual’s work would be paid to that individual or his heirs.

In my judgment, it is impossible to distinguish, on the basis of the purpose of the priority provisions of the Bankruptcy Act, between these payments to the annuity plan and direct payments to the employee for his labors. The Court, however, holds that payments to the plan do not satisfy the “manifest purpose of the priority,” as that purpose was explained in Embassy Restaurant. This purpose, the Court says, was to enable employees, upon the bankruptcy of their employer, promptly to secure money directly due them in back wages and thereby to alleviate the hardship that unemployment brings. Embassy Restaurant demonstrates, the Court says, that since the contributions to the annuity plan were not immediately payable to the employees upon bankruptcy, they do not fall within the definition of “wages” for priority purposes.

But the present case is materially different from Embassy Restaurant. In that case, the employee was never entitled to receive the sums which were paid into the fund on account of his labor. These sums and the sums paid by the employer for all other employees were used to provide life insurance, sick benefits, hospital and surgical payments, and other benefits. An .employee was never entitled to demand and receive payment of sums that he had earned. These sums were not credited to him to be paid upon his death or retirement or other contingencies.

In a dissenting opinion in that case, Mr. Justice Black (joined by The Chief Justice and Mr. Justice Douglas) argued that the majority misconceived the nature of the payments into the fund in Embassy Restaurant and the purpose of the priority for wages. But we need not quarrel with the Court’s conclusions in Embassy Restaurant, for purposes of the present case. Here, it is entirely clear that the sums paid and payable into the fund were payable to the individual employee. They were his. They were part of his wages. Only the time of receipt was deferred until retirement at age 60, separation from the industry, death, etc.

There is nothing whatever in § 64 to indicate, as the Court would have us believe, that “wages” lose their priority position if they are not immediately payable upon the event of bankruptcy. There is no basis whatever, except this Court’s ipse dixit in this case, to say that the priority is available only to provide “immediate support for workmen during the period of financial distress.” Embassy Restaurant is not authority for this. Embassy Restaurant is authority for the proposition that when the “wages” are never payable to the employee, but benefit him only through providing life insurance or various types of services, the priority is not applicable. That is not the present case.

I take it that the purpose of the “wages” priority— just as in the case of all other priorities — is to give a preferred status to claims deemed particularly meritorious, so that the chances that the claimant will recover the sums due him on such claims will be enhanced. “Wages . . . due to workmen” are in this category, as are other claims such as costs of administering the bankruptcy estate and taxes owed to the United States or any State. The lower court cases which the majority claims are “in agreement” as to the purpose of the “wages” priority are probably not in agreement with each other at all and certainly not in agreement with the majority’s restrictive definition of that purpose. In re Lawsam Electric Co., Inc., 300 F. 736 (D. C. N. Y.), Judge Learned Hand said: “The statute was intended to favor those who could not be expected to know anything of the credit of their employer, but must accept a job as it comes, to whom the personal factor in employment is not a practicable consideration.” In re Estey, 6 F. Supp. 570 (D. C. N. Y.), it was said that “the intention of Congress was plainly to give special protection to a class of wage-earners who generally have no substantial savings or other reserves to fall back on in case of adversity and therefore cannot afford to lose.” Certainly neither of these statements, which the majority cites in support of its definition of the purpose of the “wages” priority, constitutes authority for the proposition that the priority was intended only to alleviate the hardship caused by unemployment following immediately upon the bankruptcy of an employer. As a matter of fact, recognizing the priority does not assure immediate payment. Payment is made upon interim or final distribution of the estate. Priority merely increases the prospects of recovery.

The Court’s decision in this case, in my opinion, deprives the workers here concerned of the protection which Congress accorded their claims. We should reverse the judgment below.

       Section 64a, 30 Stat. 563 (as amended by Act of June 22, 1938, 52 Stat. 874, and Act -of July 30, 1956, 70 Stat. 725), 11 U. S. C. § 104 (a), provides in relevant part:
      “The debts to have priority, in advance of the payment of dividends to creditors, and to be paid in full out of bankrupt estates, and the order of payment, shall be . . . (2) wages and commissions, not to exceed $600 to each claimant, which have been earned within three months before the date of the commencement of the proceeding, due to workmen, servants, clerks, or traveling or city salesmen on salary or commission basis, whole or part time, whether or not selling exclusively for the bankrupt; and for the purposes of this clause, the term 'traveling or city salesman’ shall include all such salesmen, whether or not they are independent contractors selling the products or services of the bankrupt on a commission basis, with or without a drawing account or formal contract . . . .”

       The cases in the lower courts are in agreement as to the purpose of §64a(2). See 3 Collier on Bankruptcy ¶ 64.201, at 2112, nn. 7-9 and related text (14th ed., 1967).

       The plan also provides that no person claiming by or through any participant shall have any right, title, or interest in or to the annuity fund. Section 9 (f) of the plan imposes additional limitations: “The benefits payable to Participants or beneficiaries under this Plan cannot be assigned and shall not be liable to attachment, garnishment or other process, and shall not be taken, appropriated or applied by any legal or equitable process, or by operation of law, to pay any debt or liability of the Participant or of any beneficiary or next-of-kin who may have a right thereunder, either before or after payment.”
      It seems agreed in this ease that the employer contributions to the fund are not taxable to the employee at the time they are made, but only when later received as benefits.

       The history of § 64a (2) is dealt with in both the majority and dissenting opinions in United States v. Embassy Restaurant, 359 U. S. 29 (1959). For a more complete consideration see 3 Collier on Bankruptcy ¶¶ 64.01, 64.201 (14th ed., 1967).

       Act of November 28, 81 Stat. 511.

       H. R. 2076, 90th Cong., 1st Sess. (1967); H. R. 991, 89th Cong., 1st Sess. (1965); H. R. 1784, 88th Cong., 1st Sess. (1963); H. R. 66, 88th Cong., 1st Sess. (1963); H. R. 2274, 87th Cong., 1st Sess. (1961); and H. R. 9831, 86th Cong., 2d Sess. (1960).

       It is instructive that workmen’s compensation claims were not provable in bankruptcy until 1934, when they were given a seventh priority. In 1938 the priority for compensation claims was abolished. Moreover, taxes and Social Security contributions which are withheld from wages are entitled to a fourth priority as taxes rather than a second priority as wages.

       See ante, at 227, n. 2.

       Even if I were to accept the majority’s definition of the purpose of the “wages” priority, I still could not agree with the decision to affirm. For the majority indulges in a major, unexplained, assumption with which I do not agree: the majority assumes, without any basis that I can find in the record or anywhere else, that upon the bankruptcy of an employer an employee is likely to suffer the hardship of unemployment yet unlikely to suffer the hardship of accepting a job outside the electrical industry or with an employer who is not covered by the collective bargaining contract and annuity plan. Of course, if an employee does choose, upon the bankruptcy of his employer, to seek work with an employer not covered by the contract, he ceases to participate in the annuity plan and may, under the terms of that plan, claim the monies that have accrued in- his account. In this plausible and, I would suspect, common situation, the employee receives his annuity account “immediately” after the bankruptcy. I see no significant difference— and certainly the majority suggests none — between payments that may alleviate the hardship of unemployment caused by bankruptcy and payments that may alleviate the hardship of unattractive employment after a discharge caused by bankruptcy.


author: Mr. Justice Fortas Mr. Justice Harlan

text:
    CARAFAS v. LaVALLEE, WARDEN.
    No. 71.
    Argued March 27, 1968.
    Decided May 20, 1968.

      James J. Cally argued the cause and filed briefs for petitioner.

      Brenda Soloff, Assistant Attorney General of New York, argued the cause for respondent. With her on the brief were Louis J. Lefkowitz, Attorney General, Samuel A. Hirshowitz, First Assistant Attorney General, and Michael H. Rauch, Assistant Attorney General.
   Mr. Justice Fortas

delivered the opinion of the Court.

This case has a lengthy procedural history. In 1960, petitioner was convicted of burglary and grand larceny in New York state court proceedings and was sentenced to concurrent terms of three to five years. On direct appeal (following Mapp v. Ohio, 367 U. S. 643 (1961)), petitioner claimed that illegally obtained evidence had been introduced against him at trial. The Appellate Division affirmed the conviction without opinion, People v. Carafas, 14 App. Div. 2d 886, 218 N. Y. S. 2d 536 (1961), as did the New York Court of Appeals, 11 N. Y. 2d 891, 182 N. E. 2d 413 (1962). This Court denied a petition for a writ of certiorari. 372 U. S. 948 (1963).

Thereafter, complex proceedings took place in which petitioner sought in both federal and state courts to obtain relief by writ of habeas corpus, based on his claim that illegally seized evidence was used against him. 334 F. 2d 331 (1964); petition for writ of certiorari denied, 381 U. S. 951 (1965). On November 5, 1965, the United States District Court, as directed by the United States Court of Appeals for the Second Circuit (334 F. 2d 331 (1964)), heard petitioner’s claim on the merits. It dismissed his petition on the ground that he had failed to show a violation of his Fourth Amendment rights. Petitioner appealed in circumstances hereinafter related. The Court of Appeals for the Second Circuit dismissed the appeal. On March 20, 1967, a petition for a writ of certiorari was filed here. We granted the petition, 389 U. S. 896 (1967), to consider whether, because of facts to which we later refer, the Court of Appeals’ dismissal conformed to our holding in Nowakowski v. Maroney, 386 U. S. 542 (1967). But first we must consider the State’s contention that this case is now moot because petitioner has been unconditionally released from custody.

Petitioner applied to the United States District Court for a writ of habeas corpus in June 1963. He was in custody at that time. On March 6, 1967, petitioner’s sentence expired, and he was discharged from the parole status in which he had been since October 4, 1964. We issued our writ of certiorari on October 16, 1967 (389 U. S. 896).

The issue presented, then, is whether the expiration of petitioner’s sentence, before his application was finally adjudicated and while it was awaiting appellate review, terminates federal jurisdiction with respect to the application. Respondent relies upon Parker v. Ellis, 362 U. S. 574 (1960), and unless this case is overruled, it stands as an insuperable barrier to our further consideration of petitioner’s cause or to the grant of relief upon his petition for a writ of habeas corpus.

Parker v. Ellis held that when a prisoner was released from state prison after having served his full sentence, this Court could not proceed to adjudicate the merits of the claim for relief on his petition for habeas corpus which he had filed with the Federal District Court. This Court held that upon petitioner’s unconditional release the case became "moot.” Parker was announced in a per curiam decision.

It is clear that petitioner’s cause is not moot. In consequence of his conviction, he cannot engage in certain businesses; he cannot serve as an official of a labor union for a specified period of time; he cannot vote in any election held in New York State; he cannot serve as a juror. Because of these “disabilities or burdens [which] may flow from” petitioner’s conviction, he has “a substantial stake in the judgment of conviction which survives the satisfaction of the sentence imposed on him.” Fiswick v. United States, 329 U. S. 211, 222 (1946). On account of these “collateral consequences,” the case is not moot. Ginsberg v. New York, 390 U. S. 629, 633-634, n. 2 (1968); Fiswick v. United States, supra, at 222, n. 10; United States v. Morgan, 346 U. S. 502, 512-513 (1954).

The substantial issue, however, which is posed by Parker v. Ellis, is not mootness in the technical or constitutional sense, but whether the statute defining the habeas corpus jurisdiction of the federal judiciary in respect of persons in state custody is available here. In Parker v. Ellis, as in the present case, petitioner’s application was filed in the Federal District Court when he was in state custody, and in both the petitioner was unconditionally released from state custody before his case could be heard in this Court. For the reasons which we here summarize and which are stated at length in the dissenting opinions in Parker v. Ellis, we conclude that under the statutory scheme, once the federal jurisdiction has attached in the District Court, it is not defeated by the release of the petitioner prior to completion of proceedings on such application.

The federal habeas corpus statute requires that the applicant must be “in custody” when the application for habeas corpus is filed. This is required not only by the repeated references in the statute, but also by the history of the great writ. Its province, shaped to guarantee the most fundamental of all rights, is to provide an effective and speedy instrument by which judicial inquiry may be had into the legality of the detention of a person. See Peyton v. Rowe, ante, p. 54.

But the statute does not limit the relief that may be granted to discharge of the applicant from physical custody. Its mandate is broad with respect to the relief that may be granted. It provides that “[t]he court shall . . . dispose of the matter as law and justice require.” 28 U. S. C. § 2243. The 1966 amendments to the habeas corpus statute seem specifically to contemplate the possibility of relief other than immediate release from physical custody. At one point, the new § 2244 (b) (1964 ed., Supp. II) speaks in terms of “release from custody or other remedy.” See Peyton v. Rowe, supra; Walker v. Wainwright, 390 U. S. 335 (1968). Cf. Ex parte Hull, 312 U. S. 546 (1941).

In the present case, petitioner filed his application shortly after June 20, 1963, while he was in custody. He was not released from custody until March 6, 1967, two weeks before he filed his petition for certiorari here. During the intervening period his application was under consideration in various courts. Petitioner is entitled to consideration of his application for relief on its merits. He is suffering, and will continue to suffer, serious disabilities because of the law’s complexities and not because of his fault, if his claim that he has been illegally convicted is meritorious. There is no need in the statute, the Constitution, or sound jurisprudence for denying to petitioner his ultimate day in court.

This case illustrates the validity of The Chief Justice’s criticism that the doctrine of Parker simply aggravates the hardships that may result from the “intolerable delay[s] in affording justice.” Parker v. Ellis, supra, at 585 (dissenting opinion). The petitioner in this case was sentenced in 1960. He has been attempting to litigate his constitutional claim ever since. His path has been long — partly because of the inevitable delays in our court processes and partly because of the requirement that he exhaust state remedies. He should not be thwarted now and required to bear the consequences of assertedly unlawful conviction simply because the path has been so long that he has served his sentence. The federal habeas corpus statute does not require this result, and Parker v. Ellis must be overruled.

We turn now to the substance of the question as to which we granted certiorari. Petitioner’s first hearing on the merits in the Federal District Court was held on November 5, 1965. The District Court dismissed the petition for habeas corpus, denying petitioner’s claim that evidence used against him had been obtained by an illegal search and seizure. The District Court issued a certificate of probable cause pursuant to 28 U. S. C. § 2253 and ordered that the notice of appeal be filed without prepayment of the prescribed fee. A notice of appeal was filed, and the petitioner applied in the Court of Appeals for an order allowing him to appeal in forma pauperis. 28 U. S. C. § 1915. The State opposed petitioner’s application for leave to appeal in forma pauperis and moved to dismiss the appeal on the ground that it was without merit. Petitioner filed a reply in July 1966 in which he opposed the State’s motion to dismiss and in which he renewed his plea for leave to appeal in forma pauperis. On February 3, 1967, the Court of Appeals entered the following order: “Application for Leave to Proceed in Forma Pauperis. Application denied. Motion to dismiss appeal granted.” Rehearing was thereafter denied. It is this action of the Court of-Appeals that brings into issue our decision in Nowakowski v. Maroney, 386 U. S. 542 (April 10, 1967).

In Nowakowski, we held that “when a district judge grants ... a certificate [of probable cause], the court of appeals must grant an appeal in forma pauperis (assuming the requisite showing of poverty), and proceed to a disposition of the appeal in accord with its ordinary procedure.” At 543. Although Nowakowski was decided after the Court of Appeals dismissed petitioner’s appeal, its holding applies to a habeas corpus proceeding which, like this one, was not concluded at the time Nowakowski was decided. Cf. Eskridge v. Washington Prison Board, 357 U. S. 214 (1958); see also Linkletter v. Walker, 381 U. S. 618, 628, n. 13 and 639, n. 20 (1965); Tehan v. Shott, 382 U. S. 406, 416 (1966).

Respondent argues that the denial of the motion to proceed in forma pauperis by the Court of Appeals in this case and the dismissal of the appeal were permissible because the Court had before it the entire District Court record and because respondent’s motion to dismiss and petitioner’s reply contained some argument on the merits. Nothing in the order entered by the Court of Appeals, however, indicates that the appeal was duly considered on its merits as Nowakowski requires in cases where a certificate of probable cause has been granted. Although Nowakowski does not necessarily require that the Court of Appeals give the parties full opportunity to submit briefs and argument in an appeal which, despite the issuance of the certificate of probable cause, is frivolous, enough must appear to demonstrate the basis for the court’s summary action. Anything less than this, as we held in Nowakowski, would negate the office of the certificate of probable cause. Indeed, it appears that since Nowakowski, the Court of Appeals for the Second Circuit has accorded this effect to that ruling. The State informs us that “it appears to be the policy of the Court of Appeals for the Second Circuit that in cases where habeas corpus appeals have been dismissed, reargument will be granted and the appeal reinstated where the time to apply for certiorari had not expired prior to the decision in NowakowskiBrief for respondent 22-23.

Accordingly, the judgment below is vacated and the case is remanded to the United States Court of Appeals for the Second Circuit for further proceedings consistent with this opinion.

It is so ordered.

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

Mr. Justice Harlan

and Mr. Justice Stewart,

concurring.

Although we joined the per curiam decision in Parker v. Ellis, 362 U. S. 574, we are now persuaded that what the Court there decided was wrong insofar as it held that even though a man be in custody when he initiates a habeas corpus proceeding, the statutory power of the federal courts to proceed to a final adjudication of his claims depends upon his remaining in custody. Consequently we concur in the opinion and judgment of the Court.

Mr. Justice Harlan also notes that his views upon the issue discussed in his separate concurring opinion in Parker, id., at 576, have not changed.

       The New York Court of Appeals amended its remittitur to reflect that it had passed on petitioner’s constitutional claim. 11 N. Y. 2d 969, 183 N. E. 2d 697 (1962).

       It appears that petitioner was on bail after conviction until this Court denied his earlier petition for a writ of certiorari. 372 U. S. 948 (March 18, 1963).

       The Chief Justice and Justices Black, Douglas, and BreNnan dissented.

        E. g., New York Education Law §§ 6502, 6702; New York General Business Law §74, subd. 2; New York Real Property Law § 440-a; New York Alcoholic Beverage Control Law § 126.

       73 Stat. 536, 29 U. S. C. § 504.

       New York Election Law § 152, subd. 2.

       New York Judiciary Law §§ 596, 662.

       Undoubtedly there are others. See generally Note, Civil Disabilities of Felons, 53 Va. L. Rev. 403 (1967).

       See 28 U. S. C. §§ 2241, 2242, 2243, 2244, 2245, 2249, 2252, 2254.

       See 9 W. Holdsworth, History of English Law 108-125 (1926).

         E. g., Article 39 of the Magna Carta (see 9 W. Holdsworth, at 112-125). The federal habeas corpus statute grants jurisdiction to inquire into violations of the United States Constitution.

       If there has been, or will be, an unconditional release from custody before inquiry can be made into the legality of detention, it has been held that there is no habeas corpus jurisdiction. See
        Parker v. Ellis, supra, at 582, n. 8 (WARREN, C. J., dissenting); Ex parte Baez, 177 U. S. 378 (1900); United States ex rel. Rivera v. Reeves, 246 F. Supp. 599 (D. C. S. D. N. Y. 1965); Burnett v. Gladden, 228 F. Supp. 527 (D. C. D. Ore. 1964).

       Petitioner was convicted in 1960. He took his case through the state appellate process, and this Court denied a writ of certiorari in March 1963. 372 U. S. 948. In June 1963 petitioner began his quest for a writ of habeas corpus in the federal courts. The District Court denied the petition without prejudice, suggesting, in view of what the judge thought was the unsettled state of New York law, that petitioner reapply to the state courts. See 28 U. S. C. § 2254. Petitioner did so, and apparently at the same time appealed to the United States Court of Appeals for the Second Circuit. The state courts denied relief a second time. The United States Court of Appeals reversed the District Court and ordered a hearing on the merits. 334 F. 2d 331 (1964). This Court denied the State’s petition for a writ of certiorari. 381 U. S. 951 (1965). The hearing ordered by the Court of Appeals was held by the District Court on November 5, 1965. The petition was dismissed on the merits on May 2, 1966. Petitioner’s appeal to the Second Circuit was dismissed on February 3, 1967, and a petition for rehearing was denied on February 21, 1967, A petition for a writ of certiorari was filed here on March 20, 1967, and granted on October 16, 1967, 389 U. S. 896, about seven years after petitioner’s conviction..

       See Thomas v. Cunningham, 335 F. 2d 67 (C. A. 4th Cir. 1964).

       See n. 13, supra.