author: Per Curiam. Mr. Justice Marshall,

text:
    MARSTON et al. v. LEWIS et al.
    No. 72-899.
    Decided March 19, 1973
   Per Curiam.

Fourteen county recorders and other public officials of Arizona appeal from a judgment of a three-judge district court holding the State’s 50-day durational voter residency requirement and its 50-day voter registration requirement unconstitutional under the decision in Dunn v. Blumstein, 405 U. S. 330 (1972). A permanent injunction was entered against enforcement of these or any other greater-than-30-day residency and registration requirements in any election held after November 1972. Appellants do not seek review of the District Court’s judgment insofar as it enjoins application of the 50-day requirements in presidential elections. See Voting Rights Act Amendments of 1970, 84 Stat. 316, 42 U. S. C. § 1973aa-l. Appellants assert, however, that the requirements, as applied to special, primary, or general elections involving state and local officials, are supported by sufficiently strong local interests to pass constitutional muster. We agree and reverse.

In Dunn v. Blumstein, we struck down Tennessee’s durational voter residency requirement of one year in the State and three months in the county. We recognized that a person does not have a federal constitutional right to walk up to a voting place on election day and demand a ballot. States have valid and sufficient interests in providing for some period of time — prior to an election — in order to prepare adequate voter records and protect its electoral processes from possible frauds. A year, or even three months, was found too long, particularly in the context of “the judgment of the Tennessee lawmakers,” who had set “the cutoff point for registration [at] 30 days before an election . . . .” 405 U. S., at 349. The Arizona scheme, however, stands in a different light. The durational residency requirement is only 50 days, not a year or even three months. Moreover, unlike Tennessee’s, the Arizona requirement is tied to the closing of the State’s registration process at 50 days prior to elections and reflects a state legislative judgment that the period is necessary to achieve the State’s legitimate, goals.

We accept that judgment, particularly in light of the realities of Arizona’s registration and voting procedures. Those procedures, apparently first adopted during the Populist Era, rely on a “massive” volunteer deputy registrar system. See Ariz. Rev. Stat. Ann. § 16-141. According to appellants’ testimony, although these volunteers make registration convenient for voters, they average 1.13 mistakes per voter registration and the county recorder must correct those mistakes before certifying to the “completeness and correctness” of each precinct register. Ariz. Rev. Stat. Ann. § 16-155. The District Court itself noted that there were estimates that “in Maricopa County alone, some 4,400 registered voters might be denied the right to vote if the county voter list is in error by only one percent.”

An additional complicating factor in Arizona registration procedures is the State’s fall primary system. The uncontradicted testimony demonstrates that in the weeks preceding the deadline for registration in general elections — a period marked by a curve toward the “peak” in terms of the registration affidavits received — county recorders and their staffs are unable to process the incoming affidavits because of their work in the fall primaries. It is only after the primaries are over that the officials can return to the accumulated backlog of registration affidavits and undertake to process them in accordance with applicable statutory requirements.

On the basis of the evidence before the District Court, it is clear that the State has demonstrated that the 50-day voter registration cutoff (for election of state and local officials) is necessary to permit preparation of accurate voter lists. We said in Dunn v. Blumstein that “[f]ixing a constitutionally acceptable period is surely a matter of degree. It is sufficient to note here that 30 days appears to be an ample period of time for the State to complete whatever administrative tasks are necessary to prevent fraud — and a year, or three months, too much.” 405 U. S., at 348. In the present case, we are confronted with a recent and amply justifiable legislative judgment that 50 days rather than 30 is necessary to promote the State’s important interest in accurate voter lists. The Constitution is not so rigid that that determination and others like it may not stand.

The judgment of the District Court, insofar as it has been appealed from, is

Reversed.

Mr. Justice Marshall,

with whom Mr. Justice Douglas and Mr. Justice Brennan concur,

dissenting.

In Dunn v. Blumstein, 405 U. S. 330, 348 (1972), just last Term, we held that a 30-day residency requirement provided the State with “an ample period of time . . . to complete whatever administrative tasks are necessary to prevent fraud” in the process of voter registration. We made that judgment in light of the facts that Congress had made a similar judgment as to presidential and vice-presidential elections, 42 U. S. C. § 1973aa-l (a) (6), that roughly half the States had periods of similar length, 1972-1973 Book of the States 36-37 (as of time of decision), and that the evidence needed to determine residency was relatively easy to find. The District Court, after hearing evidence about the administrative burdens in Arizona, found that appellants needed no longer than 30 days to complete the same tasks. I find nothing in the record that leads me to conclude that this judgment was erroneous.

The Court relies on two factors to justify the longer period. First, Arizona’s volunteer registrar system is said to result in so many errors that their correction requires 45 days. But these errors occur only because the deputy registrars are inadequately trained and the central supervision of the data-control process is not well organized. The District Court found that “under present conditions, at least forty-five days are required to make a voter list as free from error as possible” (emphasis added). This justified its refusal to enjoin the operation of the statute as to the election held in November 1972. But appellant Marston’s testimony was directed almost exclusively to what can only be considered readily solvable problems caused by untrained personnel in a relatively small office. Appellants presented no evidence that improvements in the administration of the deputy registrar system, including earlier recruitment and better training of deputy registrars and of data-processing personnel in the central offices, could not be adopted before the next election. If, as we held in Dunn, the State “cannot choose means which unnecessarily burden or restrict constitutionally protected activity,” and if the State must carry “a heavy burden of justification,” 405 U. S., at 343, surely it must show that it cannot, by better administration, eliminate the errors that justified a 50-day period in 1972. The District Court, in my view, correctly concluded that “the State has presented no facts demonstrating a compelling interest” in its 50-day requirement.

The second “complicating factor” is said to be the burden on county recorders caused by the need to interrupt the processing of affidavits filed by new registrants in order for them to work on the fall primaries. Here too the appellants showed no need to use small staffs. It is by no means obvious that the recorders’ staffs could not be increased temporarily to deal with this “complication.” Certainly that is a method of processing affidavits which less seriously burdens the right to vote. “And if there are other, reasonable ways to achieve those goals with a lesser burden on constitutionally protected activity, a State may not choose the way of greater interference.” Dunn v. Blumstein, supra, at 343.

In addition, appellants have established a system to register voters for presidential and vice-presidential elections, in compliance with the requirement of 42 U. S. C. § 1973aa-l (d), that no State may impose a residency requirement of greater than 30 days for such elections. In Arizona, those voters who qualify for presidential and vice-presidential elections, but not for state elections, are given absentee ballots. This eliminates the necessity to prepare a separate list of registration lists. Any administrative problems caused by the inability to correct misspellings, to alphabetize the lists, and to determine in which precinct the voter lived — the only difficulties which appellants mentioned in their testimony — could be eliminated by similar treatment of late registrants for all elections. And if these voters did not have to appear at the polls, the fears of deterring other voters by delays at the polling places would disappear.

Even if the evidence below established that the administrative burdens of a 30-day limitation on general registration could not possibly be removed, that would not itself justify the same limitation on registration of newly arrived voters. General registration requirements affect every voter in the State. Durational residency requirements affect a much smaller class of potential voters, and the burdens of registering the members of that class will therefore be significantly smaller. Further, general registration requirements, with which any otherwise eligible voter may comply if he acts with sufficient diligence, might be thought to impair less substantially the right to vote than do durational residency requirements, which bar a newly arrived voter from any participation in the elections. Serious administrative problems might justify the less severe impairment, but a total bar to participation can be justified only by administrative problems of the highest order.

In short, the evidence produced below abundantly supports the District Court’s conclusion that appellants had failed to carry the heavy burden of justifying the 50-day limitation period in light of reasonably available and less restrictive alternatives. If this Court has drawn a line beyond which reliance on administrative inconvenience is extremely questionable, as we did in Dunn, we can avoid an unprincipled numbers game only if we insist that any deviations from the line we have drawn, after mature consideration, be justified by far more substantial evidence than that produced in the District Court by appellants. I would therefore affirm the judgment of the District Court.

       The requirements appear, respectively, at Ariz. Rev. Stat. Ann. §§ 16-101 (3) and 16-107. These provisions were enacted after our decision in Dunn v. Blumstein.

      Appellees are a deputy registrar in Maricopa County and a resident of Maricopa County.

       Section 1973aa-l withstood constitutional attack in Oregon v. Mitchell, 400 U. S. 112 (1970).

      Appellant Marston testified that there would be difficulty in locating the proper precincts and school districts for each registrant. Again, this pertains exclusively to the election in 1972, because of several nonrecurring facts: the State had recently “cleansed” its voting lists, dropping everyone from the rolls and requiring reregistration of every voter; the State had just been redistricted; and a statute rescheduling school board elections caused transitional problems. Difficulties in determining the proper precinct for each voter could be eliminated by a simple reprograming of the computer used by the registrars. Now the computer simply indicates an error if the address and the precinct entered on the registration form by the registrars are inconsistent; it would not be difficult for a programer to have the computer itself find the proper precinct. And, as appellant Marston testified, his task would not be difficult at all if he used an “on-line” system of processing the cards through the computer rather than the present “batch” system.


source: Caselaw Access Project

author: Per Curiam. Mr. Justice Blackmun, Mr. Justice Marshall,

license: Public Domain

text:
    BURNS et al. v. FORTSON, SECRETARY OF STATE OF GEORGIA, et al.
    No. 72-901.
    Decided March 19, 1973
   Per Curiam.

By statute, Georgia registrars are required to close their voter registration books 50 days prior to November general elections, except for those persons who seek to register to vote for President or Vice President. Ga. Code Ann. §§ 34-611 and 34-602. The District Court upheld the registration cutoff against appellants’ constitutional attack based upon this Court’s decision in Dunn v. Blumstein, 405 U. S. 330 (1972). This appeal followed.

The State offered extensive evidence to establish “the need for a 50-day registration cut-off point, given the vagaries and numerous requirements of the Georgia election laws.” Plaintiffs introduced no evidence. On the basis of the record before it, the District Court concluded that the State had demonstrated “that the 50-day period is necessary to promote . . . the orderly, accurate, and efficient administration of state and local elections, free from, fraud.” (Footnote omitted.) Although the 50-day registration period approaches the outer constitutional limits in this area, we affirm the judgment of the District Court. What was said today in Marston v. Lewis, ante, p. 679, at 681, is applicable here:

“In the present case, we are confronted with a recent and amply justifiable legislative judgment that 50 days rather than 30 is necessary to promote the State’s important interest in accurate voter lists. The Constitution is not so rigid that that determination and others like it may not stand.”

The judgment of the District Court is

Affirmed.

Mr. Justice Blackmun,

concurring in the result.

I concur only in the result, for I hesitate to join what, for me, is the Court’s unnecessary observation that “the 50-day registration period approaches the outer constitutional limits in this area.” I also concurred in the result in Dunn v. Blumstein, 405 U. S. 330 (1972), and said,

“It is, of course, a matter of line drawing, as the Court concedes, ante, at 348. But if 30 days pass constitutional muster, what of 35 or 45 or 75? The resolution of these longer measures, less than those today struck down, the Court leaves, I suspect, to the future.” Id., at 363.

I am not prepared to intimate at this point that a period of time in excess of 50 days cannot be sustained, no matter how supportive the record may be. In Blumstein, the Court struck down Tennessee’s 90-day county durational residency requirement in part, I suppose, because it exceeded the State’s 30-day registration period. Had the latter been 60 days, rather than 30, I suspect the Court would have indicated approval of a corresponding 60-day durational residency requirement. See 405 U. S., at 345-349. I feel that each case in this area should be decided on its own record unrestricted by an arbitrary number-of-days figure.

Mr. Justice Marshall,

with whom Mr. Justice Douglas and Mr. Justice Brennan concur,

dissenting.

For the same reasons that I gave in Marston v. Lewis, ante, p. 682,1 dissent from the affirmance of the judgment of the District Court. Unlike Arizona, Georgia does not use volunteer deputy registrars, a system that the Court in Marston thought created special problems warranting special treatment. Indeed, the State’s expert witness in this case testified that there was something dangerous about using deputy registrars. Nor does Georgia have as late a primary as Arizona. As in Marston, appellees here did not show that it was impossible to increase the size of the registrars’ staffs or the efficiency of their operations. Moreover, there was evidence that final lists of registered voters are not prepared until 14 days before the election, which indicates that there is no serious administrative impediment to keeping registration open for a relatively long period.

The Court also relies on an ingenious bootstrap argument that I cannot let pass without comment. The statutes in question in Marston were enacted last year after our decision in Dunn v. Blumstein, 405 U. S. 330 (1972). The Arizona Legislature therefore knew that its limitations on registration could only be justified by the administrative burdens faced by registrars. It knew that insuring the purity of the ballot box and guaranteeing the knowledgeability of voters were not goals that could be permissibly served by time limitations on registration. Id., at 353-357. The Court in Marston thus correctly noted that the Arizona statutes reflected a recent judgment that 50 days were necessary to avoid administrative problems.

In this case, the Court quotes that statement from Marston. The difficulty is that the Georgia statutes here were adopted nearly a decade ago. The legislative judgment is hardly a recent one. Nor was it made knowing that only administrative difficulties were a justification for durational residency requirements. Even if we would be inclined to defer to a recent and informed legislative determination of necessity, when there is no reason to believe that the legislature made such a determination, deference in that regard is uncalled for.

Finally, I believe it important to indicate my view that the decisions today provide no basis for making it more difficult to register by making shorter any existing registration periods, in the absence of compelling evidence of extraordinary new circumstances. If 30 days were all that some state officials needed yesterday, that is all they need today.

      Section 34-611 was enacted in 1964. At present, Georgia has no independent durational residency requirement. The State’s statutory requirement of one year in the State and six months in the county (see Ga. Code Ann. §34-602) was held unconstitutional in Abbott v. Carter (No. 15689, ND Ga. 1972).


text:
    LaVALLEE, CORRECTIONAL SUPERINTENDENT v. DELLE ROSE
    No. 72-905.
    Decided March 19, 1973
   Per Curiam.

The State of New York petitions for certiorari to review the adverse determination of the Court of Appeals in this federal habeas corpus proceeding directing the release of respondent Pasquale Delle Rose. Delle Rose was serving a life sentence for the premeditated murder of his wife in 1963. At his trial, occurring before Jackson v. Denno, 378 U. S. 368 (1964), respondent was convicted by a jury which chose to credit his two confessions over his protestation of accidental involvement, and which presumably found them to be voluntary. On appeal, the New York appellate court directed the trial court to hold a special hearing to determine the voluntariness of his confessions in accordance with People v. Huntley, 15 N. Y. 2d 72, 204 N. E. 2d 179 (1965), the State’s procedural response to this Court’s decision in Jackson v. Denno, supra.

On remand to the trial court, the State rested on the trial record, and the respondent, in addition to relying on the record, testified in his own behalf. After extensively summarizing the trial evidence and respondent’s explanations of certain of his confession statements, the court concluded:

“On all evidence, both at the trial and at the hearing, and after considering the totality of the circumstances, including the omission to warn defendant of his right to counsel and his right against self-incrimination, I find and decide that the respective confessions to the police and district attorney were, in all respects, voluntary and legally admissible in evidence at the trial. . . .”

On this basis, respondent’s conviction was affirmed by the New York appellate courts, 33 App. Div. 2d 657, 27 N. Y. 2d 882, 265 N. E. 2d 770 (1970), and this Court denied certiorari, 402 U. S. 913 (1971).

Respondent then petitioned the United States District Court for a writ of habeas corpus alleging his confessions were involuntary. That court held that since the state trial judge had “neglected to say how far he credited— and to what extent, if any, he discounted or rejected” respondent’s testimony and the evidence before him, there was no “adequate” determination within the meaning of 28 U. S. C. § 2254 (d), which would have entitled the state court’s findings to a presumption of correctness and placed on respondent the burden of establishing by-convincing evidence that the state court’s conclusion was erroneous. The District Court therefore held its own hearing, found both confessions involuntary, and ordered respondent discharged from custody unless retried. A divided panel of the Second Circuit affirmed.

The Court of Appeals held that the state court’s opinion did not meet the requisites of 28 U. S. C. § 2254 (d) which provides in relevant part:

“[A] determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction . . . evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear ... —
“(1) that the merits of the factual dispute were not resolved in the State court hearing . . . .”

Although it is true that the state trial court did not specifically articulate its credibility findings, it can scarcely be doubted from its written opinion that respondent’s factual contentions were resolved against him.

Respondent’s wife was killed by a blast from a sawed-off shotgun device which had been set to shoot through the back of their front car seat. His confessions indicated that because of extreme jealousy, he rigged the device to go off when his wife pulled the car seat forward. For some reason it failed initially; so when he was seated with her in the car, he operated it by hand. At trial, he claimed his confessions were false and testified that he was seated in the car with his wife and he noticed a lump on the floor behind the front seat. When he reached down to investigate, it shot her.

At trial, in support of his theory of relentless questioning and police coercion, respondent presented evidence to the effect that, at the time of his confessions,

“he had had a back injury, and therefore was in pain; that he was taken to the garage and asked to put his hand in the back seat where the blood of his wife was; that the police threatened to beat him up if he did not admit he killed her; that he was compelled to say by the police that he had killed his wife but that what he meant was that he had done so inadvertently, by placing his hand over the lump; and that, after telling the officer he wanted to see his wife, he did not remember what happened thereafter until 9 :00 o’clock in the morning.”

In addition, at his “Huntley” hearing, he testified that the officers told him they would beat him up if he did not talk to them; that one of the detectives told him to put his hands in the front seat hole where his wife’s blood was and when he did not, the detective took his hands and put them there himself; and that he did not remember anything past the time when he asked to see his wife at the morgue, including the giving of the second statement. He also attempted to explain the reasons for his giving such detailed and factually accurate confession statements.

The trial court’s summary of the State’s evidence tended to show that although respondent had been taken to the station house about 5 p. m. on the day of the murder, he was not even a suspect as late as 9 p. m., and he was only giving information. He was taken to the morgue at his own request, a factor which triggered the first confession. Further, he had been allowed to sit with his family, was given coffee by his mother-in-law and police, and he admitted that his treatment by the police was good during the time of the questioning. There was also testimony that he had been offered food, but as he admitted, he was not hungry. Again at the “Huntley” hearing, he acknowledged that the police had treated him “nice.” It was “on this evidence” that the state trial court made its finding and conclusion that the confessions were voluntary.

The Court of Appeals stated that it could not tell whether the state courts “credited Delle Rose’s story of the circumstances surrounding his confessions but still held these to have been voluntary, a conclusion to which we could not agree, or based their holding of voluntariness on a partial or complete rejection of his testimony, in which event the district judge would have been bound to deny the petition." 468 F. 2d 1288, 1290. In Townsend v. Sain, 372 U. S. 293, 314-315 (1963), the precursor of 28 U. S. C. §2254 (d), this Court set forth general standards governing the holding of hearings on federal habeas petitions, stating:

“[T]he possibility of legal error may be eliminated in many situations if the fact finder has articulated the constitutional standards which he has applied. Furthermore, the coequal responsibilities of state and federal judges in the administration of federal constitutional law are such that we think the district judge may, in the ordinary case in which there has been no articulation, properly assume that the state trier of fact applied correct standards of federal law to the facts, in the absence of evidence . . . that there is reason to suspect that an incorrect standard was in fact applied. Thus, if third-degree methods of obtaining a confession are alleged and the state court refused to exclude the confession from evidence, the district judge may assume that the state trier found the facts against the petitioner, the law being, of course, that third-degree methods necessarily produce a coerced confession.”

Here, not only is there no evidence that the state trier utilized the wrong standard, but there is every indication he applied the correct standards. His determination was made on the “totality of the circumstances” and, in this pre-Escobedo v. Illinois, 378 U. S. 478 (1964), pre-Miranda v. Arizona, 384 U. S. 436 (1966), situation, the court also considered the facts that respondent was not warned of his rights to the assistance of counsel and against self-incrimination before confessing. And we quite agree with the District Court’s statement that it could not go along with the state trial court’s conclusion of voluntariness if it “were to find the facts to have been as petitioner’s [Delle Rose’s] testimony portrayed them,” See, e. g., Spano v. New York, 360 U. S. 315 (1959); Watts v. Indiana, 338 U. S. 49 (1949). Under these circumstances, we think the District Court could have been reasonably certain that the state court would have granted relief if it had believed respondent’s allegations. See Townsend v. Sain, supra, at 315.

We, therefore, hold that the opinion of the state trial court met the requirements of 28 U. S. C. § 2254 (d)(1), and that the courts below incorrectly determined it did not. The burden was thus on respondent to establish in the District Court by convincing evidence that the state court’s determination was erroneous. The motion of the respondent for leave to proceed in forma pauperis and the petition for certiorari are granted. The judgment of the Court of Appeals is reversed, and this cause is remanded for further proceedings consistent with this opinion.

Mr. Justice Marshall,

with whom Mr. Justice Douglas, Mr. Justice Brennan, and Mr. Justice Stewart concur,

dissenting.

Although I am in complete disagreement with this Court’s per curiam decision herein, I see no reason to set this case for oral argument in light of the majority’s firmly held views.

I cannot accept the Court’s holding that both the District Court and the Court of Appeals improperly concluded that the voluntariness of respondent’s confessions was not adequately resolved by the state trial court, thereby relieving respondent of the obligation to establish “by convincing evidence that the factual determination by the State court was erroneous,” 28 U. S. C. § 2254 (d). The Court does not deny that the state trial court judge, after summarizing the record evidence and respondent’s testimony on the question of voluntariness, utterly failed to explain the basis for his conclusion that “considering the totality of circumstances . . . the respective confessions to the police and district attorney were, in all respects, voluntary and legally admissible in evidence at the trial. . . .” Despite this absence of any reasoned explanation for the state court’s action, the Court now assures us that “it can scarcely be doubted from its written opinion that respondent’s factual contentions were resolved against him.” Ante, at 692. I could not disagree more, and therefore I must respectfully dissent.

Foremost, the Court’s certainty as to the basis for the state court’s action rests upon the fact that it is clear the state court “applied” the correct legal standard in evaluating the voluntariness of respondent’s confession. Without question, the state court in this case ritualistically recited the standard of “totality of the circumstances” which governs the determination of vol-untariness with respect to these 1963 confessions. See, e. g., Clewis v. Texas, 386 U. S. 707, 708 (1967). But this recitation in itself provided the courts below with no guarantee that the state court had not erroneously applied this standard to the facts of this case, perhaps accepting respondent’s version of the circumstances surrounding the confession, rather than rejecting respondent’s version as incredible. Thus, the able District Judge noted that “[t]his court cannot be 'reasonably certain’ what facts of possibly coercive or stressful impact the trial judge found from the disputed testimony” introduced before him. 342 F. Supp. 567, 570.

The Court, however, places heavy reliance upon our prior statement in Townsend v. Sain, 372 U. S. 293, 314-315 (1963), the source of the test set forth in § 2254 (d) (1), that “the district judge may, in the ordinary case in which there has-been no articulation, properly assume that the state trier of fact applied correct standards of federal law to the facts, in the absence of evidence . . . that there is reason to suspect that an incorrect standard was in fact applied. Thus, if third-degree methods of obtaining a confession are alleged and the state court refused to exclude the confession from evidence, the district judge may assume that the state trier of fact found the facts against the petitioner, the law being, of course, that third-degree methods necessarily produce a coerced confession.” But this is hardly the limit of the inquiry — contemplated by Townsend and § 2254 (d)— into whether a state court has adequately resolved the factual issues presented by the constitutional claim.

“[E]ven if it is clear that the state trier of fact utilized the proper standard, a hearing is sometimes required if his decision presents a situation in which the ‘so-called facts and their constitutional significance [are] ... so blended that they cannot be severed in consideration.’ . . . Unless the district judge can be reasonably certain that the state trier would have granted relief if he had believed petitioner’s allegations, he cannot be sure that the state trier in denying relief disbelieved these allegations. If any combination of the facts alleged would prove a violation of constitutional rights and the issue of law on those facts presents a difficult or novel problem for decision, any hypothesis as to the relevant factual determinations of the state trier involves the purest speculation. The federal court cannot exclude the possibility that the trial judge believed facts which showed a deprivation of constitutional rights and yet (erroneously) concluded that relief should be denied. Under these circumstances it is impossible for the federal court to reconstruct the facts, and a hearing must be held.” Townsend v. Sain, supra, at 315-316 (emphasis added).

The precise problem encountered by the courts below in evaluating the state court’s conclusion — a problem which the Court now effectively ignores — is that the issue of voluntariness in this case presents just the sort of “difficult” mixed question of law and fact which Townsend recognized would make federal court speculation concerning the basis for unreasoned state court action wholly inappropriate. To be sure, where, for instance, a defendant alleges simply that a confession was extracted from him by means of a physical beating administered by the police, it is obvious that if the defendant’s story is believed, the confession would be involuntary. Thus, even if a state court holds the defendant’s confession to be voluntary without articulating any reasons, a federal district court may safely assume that in such an uncomplicated situation the state court’s determination resulted from a rejection of the defendant’s factual allegations. But it can hardly be argued that this case involves allegations of the type of straightforward police “third-degree methods of obtaining a confession” which the Townsend Court suggested would entail little possibility of misapplication of the relevant legal standard so that a district court might, with reasonable confidence, assume that an unexplained state court finding of voluntariness rests upon a rejection of the defendant’s version of the interrogation, not upon constitutional error. For a review of the state court’s opinion following the “Huntley” hearing reveals that here the state court was confronted, not with an allegation of a single coercive incident which, if believed, would clearly have resulted in a finding of involuntariness, but rather with allegations of a series of coercive police actions applied to a particularly susceptible suspect.

Respondent claimed that he was held and interrogated, apparently without rest, from 5 p. m. on the day of the murder until sometime early the next morning. Throughout this time, respondent purportedly was suffering pain due to a serious back ailment and was undoubtedly handicapped by his lack of facility with the English language. Meanwhile, without any warnings as to his constitutional rights, he was questioned repeatedly by police officers, questioning which allegedly included physical threats if he refused to confess. During this process, respondent was compelled by the police to reenact the alleged murder of his wife complete with his hand being forced by a police officer into the torn seat back which was wet with his wife’s blood. Then the police offered to take respondent on what the District Court properly described as a “macabre” visit to the morgue to see his dead wife’s body. There the police obtained the first confession. Subsequently, further questioning by an assistant district attorney produced a second confession at about 6 a. m. A defense psychiatrist testified at trial that respondent was, in his opinion, so exhausted from his long ordeal at the hands of the police that “he would say yes if you asked him if the moon were made of green cheese.”

It is possible, of course, that the state court rejected all of respondent’s testimony as incredible and therefore properly held the confessions voluntary. On the other hand, if the state court had believed all of respondent’s contentions, it would undoubtedly have found the confessions involuntary. There remains, however, the third possibility that the state court believed some of respondent’s contentions and rejected others. It is this last possibility that makes for substantial uncertainty in a factually complex case such as this as to whether the state court correctly applied the abstract legal standard and did not, instead, commit constitutional error. Due to the unrevealing nature of the state court’s decision, it is impossible to say that that court may not have credited a sufficient portion of respondent’s story to establish, under the controlling standard, the involuntariness of his confessions and nevertheless have reached an erroneous conclusion of voluntariness because the question may have been a close one on the facts that it accepted. It is this inherent uncertainty as to what the state court may have believed or disbelieved that justified the action of the District Court and the Court of Appeals in this case. To conclude otherwise, I believe, ignores the full import of this Court’s reasoning in Townsend v. Sain, supra, concerning those limited situations in which a federal district court on habeas corpus may reasonably assume that an unexplained state court determination rests merely upon a rejection of testimony rather than upon constitutional error.

Consequently, in my view, the courts below properly held the State not entitled in this case to the presumption of correctness and the special burden of proof set forth in §2254 (d). As for the merits, I see no basis for this Court to set aside the District Court’s finding of involuntariness, a finding sustained by the Court of Appeals as not “clearly erroneous” under Fed, Rule Civ. Proc. 52 (a). Cf. Neil v. Biggers, 409 U. S. 188, 201 (1972) (opinion of Brennan, J.).

      Respondent was ordered released unless retried within 60 days without the use of his confessions.

       Insofar as the Court relies upon this language from Townsend in interpreting §2254 (d)(1), the Court effectively ignores the discretionary character of the decision lodged with the district judge who is faced with a question as to the adequacy of unexplained state court findings. Townsend indicates that “the district judge may, in the ordinary ease in which there has been no articulation, 'properly assume” that the state court reached a constitutionally permissible conclusion. (Emphasis added.) Today, however, the Court effectively indicates that the district court often must assume in such cases that the proper standard was applied. Such a rigid standard seems to me wholly improper and unworkable where the question whether the defendant’s testimony was simply rejected and the proper standard applied is essentially one of judgment dependent upon the facts of each particular case. These matters are properly left largely to the discretion of the district judge. And here, certainly, it cannot be said such discretion was abused.

       The Court, of course, does not hold that the District Court erred in holding a de novo evidentiary hearing on the voluntariness of respondent’s confession. That is a question distinct from the presumption of validity and the special burden of proof established by 28 IT. S. C. § 2254 (d). Section 2254 (d) says nothing concerning when a district judge may hold an evidentiary hearing — as opposed to acting simply on the state court record — in considering a state prisoner’s petition for federal habeas corpus. So far as I understand, the question whether such a hearing is appropriate on federal habeas corpus continues to be controlled exclusively by our decision in Townsend v. Sain even after the enactment of § 2254 (d). See Developments in the Law — Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1141 (1970). And, Townsend explicitly recognizes that, apart from the six specific instances described in that opinion as mandating an evidentiary hearing, “[i]n all other cases where the material facts are in dispute, the holding of ... a hearing is in the discretion of the district judge. ... In every case he has the power, constrained only by his sound discretion, to receive evidence bearing upon the applicant’s constitutional claim.” 372 U. S., at 318.


author: Me. Justice White Mr. Justice Douglas,

text:
    TEXAS v. LOUISIANA
    No. 36,
    Orig.
    Argued December 11, 1972
    Decided March 20, 1973
    White, J., delivered the opinion of the Court, in which Burger, C. J., and BrennaN, Stewart, Marshall, BlackmuN, Powell, and RehNQUIST, JJ., joined. Douglas, J., filed a dissenting opinion, post, p. 714.

      Samuel D. McDaniel argued the cause for plaintiff in support of the Report of the Special Master. On the brief were Crawford C. Martin, Attorney General of Texas, Nola White, First Assistant Attorney General, and Houghton Brownlee, Jr., J. Arthur Sandlin, and James H. Quick, Assistant Attorneys General.

      Oliver P. Stockwell, Special Assistant Attorney General of Louisiana, argued the cause for defendant on exceptions to the Report of the Special Master. With him on the brief were William J. Guste, Jr., Attorney General, John L. Madden, Assistant Attorney General, and Sam H. Jones, Jacob H. Morrison, and Emmett C. Sole, Special Assistant Attorneys General.
   Me. Justice White

delivered the opinion of the Court.

Texas brought this original action against Louisiana to establish its rights to the jurisdiction and ownership of the western half of Sabine Pass, Sabine Lake, and Sabine River (collectively Sabine) from the mouth of the Sabine in the Gulf of Mexico to the thirty-second degree of north latitude, and to obtain a decree confirming the boundary of the two States as the geographic middle of the Sabine. After the motion to file was granted, 397 U. S. 931 (1970), Louisiana filed motions, answer, and counterclaim asserting that its boundary was on the west bank of the Sabine; and the case was referred to a Special Master, 398 U. S. 934 (1970).

The Report of the Special Master and the parties’ exceptions are now before us. The Special Master’s recommendations are that the geographic middle, not the west bank or the middle of the main channel, is the boundary between the two States; that all islands in the Sabine when Louisiana was admitted as a State in 1812 should be awarded to Louisiana subject to prescriptive claims, if any, by Texas to such islands; that all islands formed in the east half of the Sabine after 1812 belong to Louisiana, and those in the west half to Texas. The Special Master contemplates further proceedings to determine what islands were in the Sabine in 1812 and what prescriptive claims Texas may have to such islands. Louisiana’s exceptions maintain that its boundary is not the geographic middle but the west bank of the Sabine, or alternatively, the main channel of the stream as it existed in 1812 west of the most westerly islands. Louisiana also claims all islands in the Sabine, whether existing in 1812 or thereafter formed. The exception filed by Texas asserts its right to all islands in the west half of the river but proposes that the question of ownership be déferred pending the outcome of the proposed additional proceedings with respect to islands that may have existed as of 1812.

Oral argument was heard on the exceptions. We now approve and adopt the report of the Special Master except his conclusions with respect to ownership of islands in the western half of the Sabine.

I

In an Enabling Act approved February 20,1811, 2 Stat. 641, Congress authorized the inhabitants of a portion of the Louisiana Territory ceded under the Treaty between the United States and France on April 30, 1803, 8 Stat. 200, to seek statehood. The Sabine boundary for what was to become the State of Louisiana was described as “beginning at the mouth of the river Sabine, thence by a line to be drawn along the middle of the said river, including all islands to the thirty-second degree of latitude . . . .” 2 Stat. 641. The 1812 Louisiana Constitution described the State’s western boundary in substantially the same manner, and the Act of Admission of April 8, 1812, 2 Stat. 701, employed language identical to that of the Enabling Act.

Preceding this period, and for some time thereafter, the western boundary of the United States was in doubt. Negotiations between the United States and Spain from 1803 until 1819 culminated in the Treaty of Amity, Settlement, and Limits, 1819, 8 Stat. 252. Under this treaty, the boundary “between the two countries” was in relevant part established along the west bank of the Sabine, 8 Stat. 254; the United States relinquished all of Texas west of that boundary in exchange for Florida and the Spanish claim to the Oregon Territory; and it was provided that all islands in the Sabine belonged to the United States.

The United States renewed its efforts to acquire Texas, and when Mexico declared its independence from Spain in 1821, the United States began negotiating anew for the purchase of Texas. In the Treaty of Limits, 1828, 8 Stat. 372, the United States and Mexico recognized the boundary “between the two countries,” id., at 374, on the west bank of the Sabine as established in the 1819 treaty with Spain. Texas declared its independence from Mexico in 1836, 1 Laws, Republic of Texas, 3-7, in Gammel’s Laws of Texas 1822-1897, was recognized as an independent nation by the United States in 1837, Cong. Globe, 24th Cong., 2d Sess., 83, 270, and in 1838 the Sabine boundary agreed upon with Spain in 1819, and with Mexico in 1828, was adopted by the United States and Texas, 8 Stat. 511. The Sabine boundary remained unchanged when Texas was admitted as a State in 1845, 9 Stat. 108.

In 1848 the legislatures of Texas and Louisiana passed competing resolutions, each requesting consent of Congress to establish its jurisdiction over the Sabine between the middle and the western bank. Congress passed an Act in 1848 giving its consent to Texas to extend its eastern boundary from the west bank of the Sabine to the middle, 9 Stat. 245, the Act stating:

“[T]his Congress consents that the legislature of the State of Texas may extend her eastern boundary so as to include within her limits one half of Sabine Pass, one half of Sabine Lake, also one half of Sabine River, from its mouth as far north as the thirty-second degree of north latitude.” (Emphasis added.)

II

We agree with the Special Master that the western boundary of Louisiana is the geographical middle of the Sabine River, not its western bank or the middle of its main channel. Congress had the authority to admit Louisiana to the Union and to establish the boundaries of that State. U. S. Const., Art. IY, §3; United States v, Louisiana, 363 U. S. 1, 30, 60-62, 67 (1960); Washington v. Oregon, 211 U. S. 127, 134-135 (1908). Hence, our task is to ascertain congressional will when it admitted Louisiana into the Union on April 8, 1812, and established her relevant western boundary as “beginning at the mouth of the river Sabine; thence, by a line to be drawn along the middle of said river, including all islands to the thirty-second degree of latitude . . . .” 2 Stat. 702. The statute in this respect was identical with the Enabling Act of the prior year and differed hardly at all from the Preamble to the Louisiana Constitution of January 22, 1812. The Louisiana Legislature resolved in 1848 that the State’s jurisdiction should be “extended” to the western half of the river, reciting that neither it nor any other State had authority over that portion of the Sabine. See n. 4, supra. Texas made a similar request, see n. 4, supra, Congress acceding to the latter and consenting that Texas could “extend her eastern boundary so as to include within her limits one half of Sabine Pass, one half of the Sabine Lake, also one half of Sabine River, from its mouth . . . [to] the thirty-second degree of north latitude.” 9 Stat. 245. On the floor of the Senate, Mr. Butler, speaking for the Judiciary Committee, stated that the boundaries of the United States extended to the western shore of the Sabine, but that the boundary of the State of Louisiana extended only to the middle, the result being that “the half of the river and lake, to the western shore, belonged to the United States, and was not included in the State of Louisiana . . . Cong. Globe, 30th Cong., 1st Sess., 882. Hence the bill, which gave “the half of the river beyond the boundary of the State of Louisiana to the State of Texas . . . .” Ibid. The bill passed, both Senators from Louisiana expressing “their acquiescence in the arrangement.” Ibid.

There is not a whisper in these statutes and instruments that the western boundary of Louisiana was on the west bank of the Sabine. Clearly, the boundary was along the “middle” of the Sabine, not on the west bank. Louisiana argues, without substance we think, that the boundary was extended to the west bank by the Treaties of 1819 and 1828 with Spain and Mexico respectively, when the United States established and confirmed its own western boundary on the west bank of the Sabine. As the Special Master correctly noted, however, the United States was acting in its sovereign capacity throughout these events, and there is no indication that the United States was in any way representing Louisiana or intending to relocate the State’s western border. Nor was there reason to do so. On the contrary, admission of States beyond the Sabine was some day contemplated, and it was more consistent with the policy of the United States to grant only the east half of the river to Louisiana and reserve the west half for a future State or States. See United States v. Holt State Bank, 270 U. S. 49, 55 (1926); Shively v. Bowlby, 152 U. S. 1, 26-28, 57-58 (1894).

The Special Master was also correct in ruling that the United States intended the geographic middle of the river, not of the main channel, or thalweg, to be the western boundary of the State. The argument that the middle of the main channel was intended rests on the line of cases in this Court beginning with Iowa v. Illinois, 147 U. S. 1 (1893), which hold that in normal circumstances it should be assumed Congress intends the word “middle” to mean “middle of the main channel” in order that each State would have equal access to the main navigable channel. The doctrine was borrowed from international law and has often been adhered to in this Court, although it is plain that within the United States two States bordering on a navigable river would have equal access to it for the purposes of navigation whether the common state boundary was in the geographic middle or along the thalweg. Id., at 7-8, 10; New Jersey v. Delaware, 291 U. S. 361, 380-385 (1934).

In Iowa v. Illinois, however, the Court recognized that the issue was the intent of Congress, 147 U. S., at 11, and that it was merely announcing a rule of construe-' tion with respect to statutes and other boundary instruments. Thus, it was acknowledged that the rule might be “changed by statute or usage of so great a length of time as to have acquired the force of law.” Id., at 10.

When Congress sufficiently indicates that it intends a different boundary in a navigable river, the thalweg rule will not apply. In Washington v. Oregon, 211 U. S. 127 (1908), the usual rule of the thalweg was recognized, but the Court said that “there is no fixed rule making that the boundary between States bordering on a river.” Id., at 134. The Act admitting Oregon was construed by the Court as placing the northern boundary of the State in the northern channel of the Columbia River and as intending it to remain there even though that channel ceased to be the main navigable channel in the Columbia.

It was therefore imperative for the Special Master to look to congressional intent; and if it was sufficiently clear that Congress intended the Louisiana boundary to be the geographic middle of the Sabine rather than the thalweg, it was his duty to establish the border along the former line. His conclusion was surely consistent with the controlling instruments — “along the middle of the . . . river.” It is also apparent that the parties to the Act of Admission, the United States and Louisiana, both evidenced their understanding of the 1811 Enabling Act, the 1812 Constitution of Louisiana, and the 1812 Act of Admission, when the Legislature of Louisiana and the Congress of the United States expressly recited in 1848 that the western boundary of Louisiana included only the east half of the Sabine, not the west half. Whatever may be the normal significance of a later congressional indication of the meaning of an earlier statute, see, e. g., Glidden Co. v. Zdanok, 370 U. S. 530, 541 (1962); Great Northern R. Co. v. United States, 315 U. S. 262, 273, 277 (1942); Brewster v. Gage, 280 U. S. 327, 337 (1930); Tiger v. Western Investment Co., 221 U. S. 286, 309 (1911), here the question concerns the 1812 boundary between the United States and Louisiana, and in light of Art. IV, § 3, cl. 2, of the Constitution empowering Congress “to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States,” we think the Act of 1848 and the events connected with its passage had special significance as a construction by the United States and Louisiana of the earlier act admitting Louisiana to the Union. Cf. Washington v. Oregon, 211 U. S., at 135. At least, the indications are clear enough to us that we shall not apply the rule of the thalweg in this case.

The Special Master also concluded that even if he was in error in rejecting Louisiana’s claim with respect to the original location of her western boundary, Texas must still prevail by reason of prescription and acquiescence. Because we are satisfied with our conclusion, already reached, with respect to the boundary location, we need not pass upon this aspect of the Special Master’s Report, although we note that the facts relied upon by him are consistent with and support the other ground for his conclusion as to Louisiana’s Sabine boundary.

Ill

With respect to islands in the Sabine it is conceded that Louisiana owns all islands in the eastern half of the river, whether existing in 1812 or thereafter formed. As to islands in the west half, the Special Master concluded that by virtue of the 1812 Act of Admission Louisiana owns all islands that then existed in that portion of the river, but rejected her claims to islands thereafter formed in the western half. All later formed islands in that half of the river, he concluded, belonged to the State of Texas.

We shall withhold judgment with respect to the ownership of islands in the western half of the Sabine River. Further proceedings with respect to these islands are contemplated in any event, and it is our view that the United States should be requested to present any claims it may have to any of the islands in the western half of the Sabine south of 32 degrees north latitude and, if it so desires, to present evidence and argument with respect to the ownership of such islands. The Special Master should then determine whether his Report in this respect should be modified and complete the proceedings with respect to the ownership of the Sabine islands. Our reasons for so directing will be briefly stated.

It is the unquestioned rule that States entering the Union acquire title to the lands under navigable streams and other navigable waters within their borders. Scott v. Lattig, 227 U. S. 229, 242-243 (1913); County of St. Clair v. Lovingston, 23 Wall. 46, 68 (1874); Pollard’s Lessee v. Hagan, 3 How. 212, 228-230 (1845). But the rule does not reach islands or fast lands located within such waters. Title to islands remains in the United States, unless expressly granted along with the stream bed or otherwise. This was the express holding of Scott v. Lattig, supra.

In that case, a dispute arose over the ownership of an island located east of the thalweg of the Snake River, which was the western boundary of the State of Idaho. It appeared that after Idaho came into the Union, and thereby acquired title to the river bed on its side of the thalweg, the United States patented riparian lands opposite the island, and the patentees claimed the island under the laws of Idaho as against a settler seeking to homestead the property under the laws of the United States. The homesteader prevailed in this Court because title to the island remained in the United States:

“But the island, which we have seen was in existence when Idaho became a State, was not part of the bed of the stream or land under the water, and therefore its ownership did not pass to the State or come within the disposing influence of its laws. On the contrary, although surrounded by the waters of the river and widely separated from the shore, it was fast dry land, and therefore remained the property of the United States and subject to disposal under its laws, as did the island which was in controversy in Mission Rock Co. v. United States, 109 Fed. Rep. 763, 769-770, and United States v. Mission Rock Co., 189 U. S. 391.” 227 U. S., at 244.

In the case before us, it is probably correct that once the eastern boundary of Texas was extended to the middle of the river in 1848 that State became entitled to any islands in the west half which formed after the date of that extension. But unless the 1848 Act conveyed to Texas the islands located in the western half of the river at that time, title to those islands remained in the United States, if the United States had not previously conveyed all or part of them to Louisiana. The 1848 Act, however, does not mention islands in the Sabine, and it would therefore appear, if Lattig is to be followed, that the United States has an interest in any proceedings to determine the ownership of islands in the west half of the Sabine and should be a party to, or at least have the opportunity to participate in, such proceedings. Texas claims any such islands existing prior to 1848 by prescription and acquiescence, but, plainly, a State may not acquire property from the United States in this manner. United States v. California, 332 U. S. 19, 39-40 (1947).

We shall accordingly await the result of further proceedings before the Special Master with respect to the ownership of islands in the western portion of the Sabine. In all other respects, the exceptions of the parties are overruled and the report of the Special Master is confirmed.

So ordered.

Mr. Justice Douglas,

dissenting.

Louisiana was admitted into the Union in 1812. 2 Stat. 701. The Constitution of Louisiana of 1812 described her western boundary as “beginning at the mouth of the river Sabine, thence by a line to be drawn along the middle of said river, including all its islands, to the thirty-second degree of latitude . . . .” That was the description that was recited in the 1812 Act in which Congress approved the Constitution of Louisiana. 2 Stat. 702. There remained a controversy between this Nation and Spain over this western boundary and the Treaty of 1819 settled the question by the only authority that could establish a boundary with a foreign government. Rhode Island v. Massachusetts, 12 Pet. 657, 725.

That treaty provided that the boundary should start “at the mouth of the river Sabine, in the sea, continuing north, along the western bank of that river, to the 32d degree of latitude.” 8 Stat. 252, 254, 256. When Texas was admitted to the Union in 1845, 9 Stat. 108, that same boundary was used to describe her eastern line. 8 Stat. 372, 374. The Treaty of 1828 recognized that as the boundary line between Louisiana and Texas for it was the boundary between the United States and Mexico, of which Texas was a part. 8 Stat. 372. Texas did not come into the Union until 1845. The Treaty of 1819 read in context means that Louisiana’s western border, coinciding with that of the United States, was the western bank of the Sabine.

The 1819 Treaty does not mention Louisiana. But Louisiana along that segment of our western boundary was a buffer between this Nation and Spain. It is therefore dubious that the United States was bargaining for that narrow strip between the “middle” of the Sabine and the west bank of the Sabine as a detached, isolated piece of our public lands. Rather, it seems well-nigh conclusive that in 1819 this Nation was bargaining with Spain for a border that in part at least of its reach would be the western border of Louisiana.

Louisiana claims that much and alternatively only the “middle” of the Sabine which, according to the thalweg doctrine, when describing boundaries on navigable waters, means the middle of the channel, which is not necessarily the geographical “middle.” The thalweg doctrine had that meaning both when Louisiana was admitted to the Union and since that time.

Why then does Louisiana lose? Why is her boundary restricted?

The Court relies on the Act of Congress of July 5, 1848, 9 Stat. 245, which gave Texas permission to extend her eastern boundary “so as to include within her limits one half of Sabine Pass, one half of Sabine Lake, [and] one half of Sabine River.”

Washington v. Oregon, 211 U. S. 127 (1908), makes clear that the boundary originally established when Louisiana was admitted to the Union “is not within the power of the National Government to change . . . without [Louisiana’s] consent . . . .” Id., at 131.

Given that legislative restraint, Congress had no power to take the west bank from Louisiana or, alternatively, it must have used “one-half” in a general, rather than a mathematical, sense, thereby granting to Texas only those areas lying west of the thalweg.

The Sabine River, Sabine Lake, and Sabine Pass are one continuous body of navigable water. Heretofore when in controversies between States the “middle” of a navigable stream has been described as the boundary, the middle of the channel is intended. Iowa v. Illinois, 147 U. S. 1, 7-8; Arkansas v. Tennessee, 246 U. S. 158, 173; Minnesota v. Wisconsin, 252 U. S. 273; Wisconsin v. Michigan, 295 U. S. 455.

Mississippi, which was admitted to the Union five years after Louisiana, argued much as Texas does in this case to the effect that Congress had given her territory that Louisiana claimed under an earlier title. The Court held “[i]f it were true that . . . repugnancy between the two acts existed, it is enough to say that Congress, after the admission of Louisiana, could not take away any portion of that State and give it to the State of Mississippi.” Louisiana v. Mississippi, 202 U. S. 1, 40. This reasoning is equally applicable to Louisiana’s western border.

I conclude in the alternative that the thalweg doctrine — widely and generally accepted — has not been constitutionally displaced by statutory language in this case.

The question remains whether acts of acquiescence and prescription have since replaced the thalweg with some other boundary between Louisiana and Texas. Although the Special Master concluded that the maps and other evidence in question support both the conclusion that Louisiana has acquiesced in a mid-stream boundary, rather than the claimed west-bank boundary, and that the mid-stream boundary thus recognized is in the geographic center rather than the thalweg, I cannot agree. The vast majority of the maps in evidence do denominate a boundary between the banks of the waterways in issue. The quality of the boundary representation is, however, quite inadequate even to determine whether a geographic centerline designation was attempted. Moreover, the main channel is not depicted, so that any possible variance from the thread of the stream is incapable of determination. Indeed, the language employed by the Master to describe these maps in the Appendix to his Report depicts this uncertainty; the terms “middle,” “mid-Sabine,” and “centerline” appear to be used interchangeably, with only an occasional use of the more precise terminology “geographic middle.” Acquiescence on the part of one State or prescription on the part of another should not be predicated on such an inadequate showing.

The case should be returned to the Special Master for hearings that will thoroughly explore the factual issues concerning the alleged acquiescence or prescription.

       The preamble to the 1812 Louisiana Constitution described the boundary as along the middle of the Sabine, “including all its islands.” (Emphasis added.)

       Neither the 1819 Treaty nor the 1828 Treaty mentions Louisiana or its western boundary.

       Texas’ relevant boundary along the Sabine thus began “on the gulf of Mexico, at the mouth of the river Sabine, in the sea, continuing north along the western bank of that river, to the 32d degree of latitude . . . .” 8 Stat. 374.

       The Louisiana Resolution, passed on March 16, 1848, and presented to Congress, provided in pertinent part:
      “Whereas the constitution and the laws of the State of Louisiana, nor those of any other State or territory, extend over the waters of the Sabine river from the middle of said stream to the western bank thereof; and that it is of importance to the citizens living contiguous thereto, and to the people in general, that the jurisdiction of some State should be extended over said territory, in order that crimes and offences committed thereupon should be redressed in a speedy and convenient manner:

        “Therefore be it resolved by the Senate and House of Representatives of the State of Louisiana in General Assembly convened, 1st. That the constitution and the jurisdiction of the State of Louisiana shall be extended over part of the United States, embraced in the following limits (whenever the consent of the Congress of the United States can be procured thereto,) viz:
      “Between the middle of the Sabine river and the western bank thereof, to begin at the mouth of said river where it empties into the Gulf of Mexico, and thence to continue along the said western bank to the place where it intersects the thirty-second degree of north latitude, it being the boundary line between the said State of Louisiana and the States of — .
      “2d. Be it further resolved, etc., That our Senators be instructed, and our Representatives in Congress requested, to procure the passage of a law on the part of the United States* consenting to the extension of the constitution, and the jurisdiction of the laws of the State of Louisiana, over the territory in said river.” S. Misc. Doc. No. 135, 30th Cong., 1st Sess.
      The Resolution adopted by Texas on March 18, 1848, stated in relevant part:

        “Resolution of the Legislature of Texas, in favor of the passage of an act, extending the jurisdiction of that State over the Sabine pass, the Sabine lake, and the Sabine river, April 17, 1848.

        “Joint Resolution instructing our Senators and requesting our Representatives in Congress to use their efforts to have a law passed to extend the jurisdiction of Texas over one half of Sabine pass, lake, and river.

      “Sec. 1. Be it resolved by the Legislature of the State of Texas, That our Senators be instructed, and our Representatives in Congress be requested, to use their efforts to have a law passed by Congress, extending the jurisdiction of Texas over one half of the waters of Sabine lake, Sabine pass, and Sabine river, up to the 32° of north latitude.” S. Misc. Doc. No. 123, 30th Cong., 1st Sess.

       The full report of the action by the Senate, Cong. Globe, 30th Cong., 1st Sess., 882, is as follows:
      “Mr. Butler, from the Committee on the Judiciary, reported an act giving the consent of the Government of the United States to the State of Texas to extend the eastern boundary so as to include within her limits one-half of the Sabine Pass, Sabine Lake, and Sabine River as far north as the 32° of north latitude.
      “Mr. B. asked for the immediate consideration of the bill, and briefly explained its character. The boundary of the United States, it was known, embraced the Sabine River and lake to its western shore. The boundary of the State of Louisiana extended to the middle of the Sabine; so that the half of the river and lake, to the western shore, belonged to the United States, and was not included in the State of Louisiana; therefore, the boundary of the State and that of the United States, was not identical. The bill before the Senate gives the half of the river beyond the boundary of the State of Louisiana to the State of Texas, for the purpose of enabling the latter to extend her criminal jurisdiction to the Louisiana boundary. There could be no objection to the bill, and he hoped it would now be passed.
      “Mr. Johnson, of La., and Mr. Downs in behalf of the State of Louisiana, expressed their acquiescence in the arrangement.
      “The bill was then read a third time and passed.” (Emphasis added.)

       That the “middle” of a river was to be construed as the thalweg in establishing the boundary between the States newly admitted to the Union was not authoritative doctrine prior to 1892 when Iowa v. Illinois, 147 U. S. 1, was decided and certainly not when Louisiana was admitted to the Union in 1812. The opinion in Iowa v. Illinois, supra, referred to five treatises on international law in support of its holding but noted the sharp conflict on the thalweg rule between the Illinois and Iowa courts. In Dunlieth & Dubuque Bridge Co. v. County of Dubuque, 55 Iowa 558, 8 N. W. 443 (1881), though the phrase in question was “middle of the main channel,” certainly a phrase that would lend itself to a thalweg construction, the court instead ruled that the phrase meant the middle of the river bed, while in Buttenuth v. St. Louis Bridge Co., 123 Ill. 535, 17 N. E. 439 (1888), the court construed the phrase “middle of the Mississippi River” as being under the thalweg doctrine. After reviewing both cases, this Court chose the latter rule of construction.

       A sufficiently expressed intent of Congress also overrides the usually applicable “equal-footing” rule, United States v. Louisiana, 363 U. S. 1, 76-77 (1960).

       It was also in the Enabling Act giving Louisiana authority to form a constitution and state government and gain admission to the Union. 2 Stat. 641.

       The earlier authorities are discussed at length in Iowa v. Illinois, 147 U. S. 1, 7-10 (1893).

       G. Thompson on Real Property §3075 (1962 ed.); 3 American Law of Property § 12.27 n. 16 (A. Casner ed. 1952).

         See generally Texas Exs. A, F. But see Louisiana Ex. K.

       Report of Special Master, App. B.