source: Caselaw Access Project

author: Mr. Justice Stewart

license: Public Domain

text:
    BOIRE, REGIONAL DIRECTOR, TWELFTH REGION, NATIONAL LABOR RELATIONS BOARD, v. GREYHOUND CORPORATION.
    No. 77.
    Argued February 17, 1964.
    Decided March 23, 1964.

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

      Warren E. Hall, Jr. argued the cause and filed a brief for respondent.

      I. J. Gromfine and Herman Sternstein filed a brief for the Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL-CIO, as amicus curiae, urging reversal.

      Alexander E. Wilson, Jr. filed a brief for Floors, Inc., as amicus curiae, urging affirmance.
   Mr. Justice Stewart

delivered the opinion of the Court.

The Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL-CIO (the Union) filed an amended petition with the National Labor Relations Board pursuant to § 9 (c) of the National Labor Relations Act, requesting a representation election among the porters, janitors and maids working at four Florida bus terminals operated by the respondent (Greyhound). The amended petition designated the “employer” of the employees sought to be represented as Greyhound and Floors, Inc. The latter, a corporation engaged in the business of providing cleaning, maintenance and similar services to various customers in Florida, had contracted with Greyhound to provide such services at the four terminals in question.

At the Board hearing on the petition, the Union contended alternatively that the unit requested was appropriate as a residual unit of all unrepresented Greyhound employees at the four terminals — on the ground that Greyhound was at least a joint employer with Floors of the employees — or that the unit was appropriate because the employees comprised a homogeneous, distinct group. Greyhound and Floors claimed that the latter was the sole employer of the employees, and that the appropriate bargaining unit should therefore encompass all Floors’ employees, either in all four cities in which the terminals are located, or in separate groups.

The Board found that while Floors hired, paid, disciplined, transferred, promoted and discharged the employees, Greyhound took part in setting up work schedules, in determining the number of employees required to meet those schedules, and in directing the work of the employees in question. The Board also found that Floors’ supervisors visited the terminals only irregularly — on occasion not appearing for as much as two days at a time — and that in at least one instance Greyhound had prompted the discharge of an employee whom it regarded as unsatisfactory. On this basis, the Board, with one member dissenting, concluded that Greyhound and Floors were joint employers, because they exercised common control over the employees, and that the unit consisting of all employees under the joint employer relationship was an appropriate unit in which to hold an election. The Board thereupon directed an election to determine whether the employees desired to be represented by the Union.

Shortly before the election was scheduled to take place, Greyhound filed this suit in the United States District Court for the Southern District of Florida, seeking to set aside the decision of the Board and to enjoin the pending election. After a hearing, the court entered an order permanently restraining the election. 205 F. Supp. 686. Concluding that it had jurisdiction on the basis of this Court’s decision in Leedom v. Kyne, 358 U. S. 184, the court held on the merits that the Board’s findings were insufficient as a matter of law to establish a joint employer relationship, that those findings established, as a matter of law, that Floors was the sole employer of the employees in question, and that the Board had therefore violated the National Labor Relations Act by attempting to conduct a representation election where no employment relationship existed between the employees and the purported employer. The Court of Appeals affirmed, 309 F. 2d 397, and we granted certiorari to consider a seemingly important question of federal labor law. 372 U. S. 964. We reverse the judgment of the Court of Appeals.

Both parties agree that in the normal course of events Board orders in certification proceedings under § 9 (c) are not directly reviewable in the courts. This Court held as long ago as American Federation of Labor v. Labor Board, 308 U. S. 401, that the “final order [s]” made reviewable by §§10 (e) and (f) in the Courts of Appeals do not include Board decisions in certification proceedings. Such decisions, rather, are normally reviewable only where the dispute concerning the correctness of the certification eventuates in a finding by the Board that an unfair labor practice has been committed as, for example, where an employer refuses to bargain with a certified representative on the ground that the election was held in an inappropriate bargaining unit. In such a case, § 9 (d) of the Act makes full provision for judicial review of the underlying certification order by providing that “such certification and the record of such investigation shall be included in the transcript of the entire record required to be filed” in the Court of Appeals.

That this indirect method of obtaining judicial review imposes significant delays upon attempts to challenge the validity of Board orders in certification proceedings is obvious. But it is equally obvious that Congress explicitly intended to impose precisely such delays. At the time of the original passage of the National Labor Relations Act in 1935, the House Report clearly delineated the congressional policy judgment which underlay the restriction of judicial review to that provided for in §9(d):

“When an employee organization has built up its membership to a point where it is entitled to be recognized as the representative of the employees for collective bargaining, and the employer refuses to accord such recognition, the union, unless an election can promptly be held to determine the choice of representation, runs the risk of impairment of strength by attrition and delay while the case is dragging on through the courts, or else is forced to call a strike to achieve recognition by its own economic power. Such strikes have been called when election orders of the National Labor Relations Board have been held up by court review.”

And both the House and the Senate Reports spelled out the thesis, repeated on the floor, that the purpose of § 9 (d) was to provide “for review in the courts only after the election has been held and the Board has ordered the employer to do something predicated upon the results of the election.” Congressional determination to restrict judicial review in such situations was reaffirmed in 1947, at the time that the Taft-Hartley amendments were under consideration, when a conference committee rejected a House amendment which would have permitted any interested person to obtain review immediately after a certification because, as Senator Taft noted, “such provision would permit dilatory tactics in representation proceedings.”

In light of the clear import of this history, this Court has consistently refused to allow direct review of such orders in the Courts of Appeals. American Federation of Labor v. Labor Board, supra. In two cases, however, each characterized by extraordinary circumstances, our decisions have permitted district court review of orders entered in certification proceedings. In Leedom v. Kyne, 358 U. S. 184, despite the injunction of § 9 (b)(1) of the Act that “the Board shall not (1) decide that any unit is appropriate ... if such unit includes both professional employees and employees who are not professional employees unless a majority of such professional employees vote for inclusion in such unit,” the Board- — • without polling the professional employees — -approved as appropriate a unit containing both types of employees. The Board conceded in the Court of Appeals that it “had acted in excess of its powers and had thereby worked injury to the statutory rights of the professional employees.” 358 U. S., at 187. We pointed out there that the District Court suit was “not one to 'review/ in the sense of that term as used in the Act, a decision of the Board made within its jurisdiction. Rather it is one to strike down an order of the Board made in excess of its delegated powers and contrary to a specific prohibition in the Act.” 358 U. S., at 188. Upon these grounds we affirmed the District Court’s judgment setting aside the Board’s “attempted exercise of [a] power that had been specifically withheld.” 358 U. S., at 189. And in McCul-loch v. Sociedad Nacional, 372 U. S. 10, in which District Court jurisdiction was upheld in a situation involving the question of application of the laws of the United States to foreign-flag ships and their crews, the Court was careful to note that “the presence of public questions particularly high in the scale of our national interest because of their international complexion is a uniquely compelling justification for prompt judicial resolution of the controversy over the Board’s power. No question of remotely comparable urgency was involved in Kyne, which was a purely domestic adversary situation. The exception recognized today is therefore not to be taken as an enlargement of the exception in Kyne.” 372 U. S., at 17.

The respondent makes no claim that this case is akin to Sociedad Nacional. The argument is, rather, that the present case is one which falls within the narrow limits of Kyne, as the District Court and the Court of Appeals held. The respondent points out that Congress has specifically excluded an independent contractor from the definition of “employee” in § 2 (3) of the Act. It is said that the Board’s finding that Greyhound is an employer of employees who are hired, paid, transferred and promoted by an independent contractor is, therefore, plainly in excess of the statutory powers delegated to it by Congress. This argument, we think, misconceives both the import of the substantive federal law and the painstakingly delineated procedural boundaries of Kyne.

Whether Greyhound, as the Board held, possessed sufficient control over the work of the employees to qualify as a joint employer with Floors is a question which is unaffected by any possible determination as to Floors’ status as an independent contractor, since Greyhound has never suggested that the employees themselves occupy an independent contractor status. And whether Greyhound possessed sufficient indicia of control to be an “employer” is essentially a factual issue, unlike the question in Kyne, which depended solely upon construction of the statute. The Kyne exception is a narrow one, not to be extended to permit plenary district court review of Board orders in certification proceedings whenever it can be said that an erroneous assessment of the particular facts before the Board has led it to a conclusion which does not comport with the law. Judicial review in such a situation has been limited by Congress to the courts of appeals, and then only under the conditions explicitly laid down in § 9 (d) of the Act.

Accordingly, the judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Mr. Justice Douglas dissents.

       Section 9 (c) of the National Labor Relations Act, as amended, 29 U. S. C. § 169 (c), provides in pertinent part:
      “(1) Whenever a petition shall have been filed, in accordance with such regulations as may be prescribed by the Board—
      “(A) by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a substantial number of employees (i) wish to be represented for collective bargaining and that their employer declines to recognize their representative as the representative defined in subsection (a) of this section, or (ii) assert that the individual or labor organization, which has been certified or is being currently recognized by their employer as the bargaining representative, is no longer a representative as defined in subsection (a) of this section; or
      “(B) by an employer, alleging that one or more individuals or labor organizations have presented to him a claim to be recognized as the representative defined in subsection (a) of this section; “the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing upon due notice. Such hearing may be conducted by an officer or employee of the regional office, who shall not make any recommendations with respect thereto. If the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof.”

       Section 10 of the National Labor Relations Act, as amended, 29 U. S. C. § 160, provides in pertinent part:
      “(e) The Board shall have power to petition any court of appeals of the United States, or if all the courts of appeals to which application may be made are in vacation, any district court of the United States, within any circuit or district, respectively, wherein the unfair labor practice in question occurred or wherein such person resides or transacts business, for the enforcement of such order and for appropriate temporary relief or restraining order, and shall file in the court the record in the proceedings, as provided in section 2112 of Title 28. . . . [Footnote 2 continued on p. 4-77]

        “(f) Any person aggrieved by a final order of the Board granting or denying in whole or in part the relief sought may obtain a review of such order in any United States court of appeals in the circuit wherein the unfair labor practice in question was alleged to have been engaged in or wherein such person resides or transacts business, or in the United States Court of Appeals for the District of Columbia, by filing in such a court a written petition praying that the order of the. Board be modified or set aside.”

       Section 9 (d) of the National Labor Relations Act, 29 U. S. C. § 159 (d), provides in pertinent part:
      “Whenever an order of the Board made pursuant to section 160 (c) . . . is based in whole or in part upon facts certified following an investigation pursuant to subsection (c) of this section and there is a petition for the enforcement or review of such order, such certification and the record of such investigation shall be included in the transcript of the entire record required to be filed under subsection (e) or (f) . . . , and thereupon the decree of the court enforcing, modifying, or setting aside in whole or in part the order of the Board shall be made and entered upon the pleadings, testimony, and proceedings set forth in such transcript.”

       H. R. Rep. No. 972, 74th Cong., 1st Sess., 5.

       “. . . Section 9 (d) of the bill makes clear that there is to be no court review prior to the holding of the election, and provides an exclusive, complete, and adequate remedy whenever an order of the Board made pursuant to section 10 (c) is based in whole or in part upon facts certified following an election or other investigation pursuant to section 9 (c). The hearing required to be held in any such investigation provides an appropriate safeguard and opportunity to be heard. Since the certification and the record of the investigation are required to be included in the transcript of the entire record filed pursuant to section 10 (e) or (f), the Board’s actions and determinations of fact and law in regard thereto will be subject to the same court review as is provided for its other determinations under sections 10 (b) and 10 (c).” H. R. Rep. No. 972, 74th Cong., 1st Sess., 20-21. [Footnote 6 is on p. 479]

       “Section 9 (d) makes it absolutely clear that there shall be no right to court review anterior to the holding of an election. An election is the mere determination of a preliminary fact, and in itself has no substantial effect upon the rights of either employers or employees. There is no more reason for court review prior to an election than for court review prior to a hearing. But if subsequently the Board makes an order predicated upon the election, such as an order to bargain collectively with elected representatives, then the entire election procedure becomes part of the record upon which the order of the Board is based, and is fully reviewable by any aggrieved party in the Federal courts in the manner provided in section 10. And this review Would include within its scope the action of the Board in determining the appropriate unit for purposes of the election. This provides a complete guarantee against arbitrary action by the Board.” S. Rep. No. 573, 74th Cong., 1st Sess., 14.

         79 Cong. Rec. 7658.

       See H. R. Rep. No. 245, 80th Cong., 1st Sess., 43; H. R. Rep. No. 510, 80th Cong., 1st Sess., 56-57.

       93 Cong. Rec. 6444.

       Section 2 (3) of the National Labor Relations Act, as amended, 29 U. S. C. § 152 (3). The effect of this provision was to overrule Labor Board v. Hearst Publications, 322 U. S. 111. See H. R. Rep. No. 245, 80th Cong., 1st Sess., 18.


author: Mr. Justice Stewart Mr. Justice Harlan,

text:
    STONER v. CALIFORNIA.
    No. 209.
    Argued February 25, 1964.
    Decided March 23, 1964.

      William H. Dempsey, Jr., by appointment of the Court, 375 U. S. 805, argued the cause and filed briefs for petitioner.

      Arlo E. Smith, Chief Assistant Attorney General of California, argued the cause for respondent. With him on the brief were Stanley Mosk, Attorney General of California, and Albert W. Harris, Jr. and Michael J. Phelan, Deputy Attorneys General.

      A. L. Wirin, Fred Okrand and Paul Cooksey filed a brief for the American Civil Liberties Union of Southern California, as amicus curiae, urging reversal.
   Mr. Justice Stewart

delivered the opinion of the Court.

The petitioner was convicted of armed robbery after a jury trial in the Superior Court of Los Angeles County, California. At the trial several articles which had been found by police officers in a search of the petitioner’s hotel room during his absence were admitted into evidence over his objection. A District Court of Appeal of California affirmed the conviction, and the Supreme Court of California denied further review. We granted certiorari, limiting review “to the question of whether evidence was admitted which had been obtained by an unlawful search and seizure.” 374 U. S. 826. For the reasons which follow, we conclude that the petitioner’s conviction must be set aside.

The essential facts are not in dispute. On the night of October 25, 1960, the Budget Town Food Market in Monrovia, California, was robbed by two men, one of whom was described by eyewitnesses as carrying a gun and wearing horn-rimmed glasses and a grey jacket. Soon after the robbery a checkbook belonging to the petitioner was found in an adjacent parking lot and turned over to the police. Two of the stubs in the checkbook indicated that checks had been drawn to the order of the Mayfair Hotel in Pomona, California. Pursuing this lead, the officers learned from the Police Department of Pomona that the petitioner had a previous criminal record, and they obtained from the Pomona police a photograph of the petitioner. They showed the photograph to the two eyewitnesses to the robbery, who both stated that the picture looked like the man who had carried the gun. On the basis of this information the officers went to the Mayfair Hotel in Pomona at about 10 o’clock on the night of October 27. They had neither search nor arrest warrants. There then transpired the following events, as later recounted by one of the officers:

“We approached the desk, the night clerk, and asked him if there was a party by the name of Joey L. Stoner living at the hotel. He checked his records and stated ‘Yes, there is.’ And we asked him what room he was in. He stated he was in Room 404 but he was out at this time.
“We asked him how he knew that he was out. He stated that the hotel regulations required that the key to the room would be placed in the mail box each time they left the hotel. The key was in the mail box, that he therefore knew he was out of the room.
“We asked him if he would give us permission to enter the room, explaining our reasons for this.
“Q. What reasons did you explain to the clerk?
“A. We explained that we were there to make an arrest of a man who had possibly committed a robbery in the City of Monrovia, and that we were concerned about the fact that he had a weapon. He stated ‘In this case, I will be more than happy to give you permission and I will take you directly to the room.’
“Q. Is that what the clerk told you?
“A. Yes, sir.
“Q. What else happened?
“A. We left one detective in the lobby, and Detective Oliver, Officer Collins, and myself, along with the night clerk, got on the elevator and proceeded to the fourth floor, and went to Room 404. The night clerk placed a key in the lock, unlocked the door, and says, ‘Be my guest.’ ”

The officers entered and made a thorough search of the room and its contents. They found a pair of horn-rimmed glasses and a grey jacket in the room, and a .45-caliber automatic pistol with a clip and several cartridges in the bottom of a bureau drawer. The petitioner was arrested two days later in Las Vegas, Nevada. He waived extradition and was returned to California for trial on the charge of armed robbery. The gun, the cartridges and clip, the horn-rimmed glasses, and the grey jacket were all used as evidence against him at his trial.

The search of the petitioner’s room by the police officers was conducted without a warrant of any kind, and it therefore “can survive constitutional inhibition only upon a showing that the surrounding facts brought it within one of the exceptions to the rule that a search must rest upon a search warrant. Jones v. United States, 357 U. S. 493, 499; United States v. Jeffers, 342 U. S. 48, 51.” Rios v. United States, 364 U. S. 253, 261. The District Court of Appeal thought the search was justified as an incident to a lawful arrest. But a search can be incident to an arrest only if it is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest. Agnello v. United States, 269 U. S. 20. Whatever room for leeway there may be in these concepts, it is clear that the search of the petitioner’s hotel room in Pomona, California, on October 27 was not incident to his arrest in Las Yegas, Nevada, on October 29. The search was completely unrelated to the arrest, both as to time and as to place. See Preston v. United States, decided this day, ante, p. 364.

In this Court the respondent has recognized that the reasoning of the California District Court of Appeal cannot be reconciled with our decision in Agnello, nor, indeed, with the most recent California decisions. Accordingly, the respondent has made no argument that the search can be justified as an incident to the petitioner’s arrest. Instead, the argument is made that the search of the hotel room, although conducted without the petitioner’s consent, was lawful because it was conducted with the consent of the hotel clerk. We find this argument unpersuasive.

Even if it be assumed that a state law which gave a hotel proprietor blanket authority to authorize the police to search the rooms of the hotel’s guests could survive constitutional challenge, there is no intimation in the California cases cited by the respondent that California has any such law. Nor is there any substance to the claim that the search was reasonable because the police, relying upon the night clerk’s expressions of consent, had a reasonable basis for the belief that the clerk had authority to consent to the search. Our decisions make clear that the rights protected by the Fourth Amendment are not to be eroded by strained applications of the law of agency or by unrealistic doctrines of “apparent authority.” As this Court has said,

“it is unnecessary and ill-advised to import into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle distinctions, developed and refined by the common law in evolving the body of private property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical. . . . [W] e ought not to bow to them in the fair administration of the criminal law. To do so would not comport with our justly proud claim of the procedural protections accorded to those charged with crime.” Jones v. United States, 362 U. S. 257, 266-267.

It is important to bear in mind that it was the petitioner’s constitutional right which was at stake here, and not the night clerk’s nor the hotel’s. It was a right, therefore, which only the petitioner could waive by word or deed, either directly or through an agent. It is true that the night clerk clearly and unambiguously consented to the search. But there is nothing in the record to indicate that the police had any basis whatsoever to believe that the night clerk had been authorized by the petitioner to permit the police to search the petitioner’s room.

At least twice this Court has explicitly refused to permit an otherwise unlawful police search of a hotel room to rest upon consent of the hotel proprietor. Lustig v. United States, 338 U. S. 74; United States v. Jeffers, 342 U. S. 48. In Lustig the manager of a hotel allowed police to enter and search a room without a warrant in the occupant’s absence, and the search was held unconstitutional. In Jeffers the assistant manager allowed a similar search, and that search was likewise held unconstitutional.

It is true, as was said in Jeffers, that when a person engages a hotel room he undoubtedly gives “implied or express permission” to “such persons as maids, janitors or repairmen” to enter his room “in the performance of their duties.” 342 U. S., at 51. But the conduct of the night clerk and the police in the present case was of an entirely different order. In a closely analogous situation the Court has held that a search by police officers of a house occupied by a tenant invaded the tenant’s constitutional right, even though the search was authorized by the owner of the house, who presumably had not only apparent but actual authority to enter the house for some purposes, such as to “view waste.” Chapman v. United States, 365 U. S. 610. The Court pointed out that the officers’ purpose in entering was not to view waste but to search for distilling equipment, and concluded that to uphold such a search without a warrant would leave tenants’ homes secure only in the discretion of their landlords.

No less than a tenant of a house, or the occupant of a room in a boarding house, McDonald v. United States, 335 U. S. 451, a guest in a hotel room is entitled to constitutional protection against unreasonable searches and seizures. Johnson v. United States, 333 U. S. 10. That protection would disappear if it were left to depend upon the unfettered discretion of an employee of the hotel. It follows that this search without a warrant was unlawful. Since evidence obtained through the search was admitted at the trial, the judgment must be reversed. Mapp v. Ohio, 367 U. S. 643.

It is so ordered.

Mr. Justice Harlan,

concurring in part and dissenting in part.

I entirely agree with the Court’s opinion, except as to its disposition of the case. I would remand the case to the California District Court of Appeal so that it may consider whether or not admission of the illegally seized evidence was harmless error. Fahy v. Connecticut, 375 U. S. 85, does not require or justify the course which the Court takes. In Fahy, Connecticut at least had had the opportunity to decide the question of harmless error with respect to the illegally seized evidence there involved; here California has had no such opportunity. For this Court to decide that question as an original matter is, in my opinion, incompatible with proper federal-state relations.

Accordingly, I would vacate the judgment below and remand the case to the California courts for further appropriate proceedings.

       205 Cal. App. 2d 108, 22 Cal. Rptr. 718.

       205 Cal. App. 2d, at 116.

       The court reasoned that the officers had probable cause to arrest the petitioner prior to their entry into the hotel room; that they were not obliged to accept as true the night clerk’s statement that the petitioner was not in his room; that “it may be reasonably inferred that they entered his room for the purpose of making an arrest,” that their observation of the glasses in plain sight reasonably led them to a further search; and that in the circumstances the arrest and the search and seizure were “part of the same transaction.” 205 Cal. App. 2d 108, 113, 22 Cal. Rptr. 718, 722.

       “The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted. See Carroll v. United States, 267 U. S. 132, 158; Weeks v. United States, 232 U. S. 383, 392. . . . But the right does not extend to other places.” Id., at 30. See also Ker v. California, 374 U. S. 23, 42, n. 13; Lustig v. United States, 338 U. S. 74, 79-80.

       Although some members of this Court have expressed the view that the statement in Agnello defining the permissible bounds of a search incident to arrest went too far, see, e. g., Harris v. United States, 331 U. S. 145, 155, 183, 195 (dissenting opinions); United States v. Rabinowitz, 339 U. S. 56, 68 (dissenting opinion), the Agnello holding as to what may not be searched — a house substantially removed geographically from the place of arrest at a time not substantially contemporaneous with the arrest — has never been questioned in this Court.

       “[T]he search cannot be justified as incident to the arrest ‘for it was at a distance from the place thereof and was not contemporaneous therewith.’ (Castaneda v. Superior Court, 59 A. C. 456, 459, 30 Cal. Rptr. 1, 3, 380 P. 2d 641, 643; Tompkins v. Superior Court, 59 A. C. 75, 77, 27 Cal. Rptr. 889, 378 P. 2d 113; People v. Gorg, 45 Cal. 2d 776, 781, 291 P. 2d 469.)” People v. King, 60 Cal. 2d 308, 311, 32 Cal. Rptr. 825, 826, 384 P. 2d 153, 155.

       See Roberts v. Casey, 36 Cal. App. 2d Supp. 767, 93 P. 2d 654; Fox v. Windemere Hotel Apt. Co., 30 Cal. App. 162, 157 P. 820; People v. Vaughan, 65 Cal. App. 2d Supp. 844; 150 P. 2d 964. “The mere fact that ca person is a hotel manager does not import an authority to permit the police to enter and search the rooms of her guests.” People v. Burke, 208 Cal. App. 2d 149, 160, 24 Cal. Rptr. 912, 919.

       The respondent has argued that the case should be remanded to let the California District Court of Appeal decide whether the admission of this evidence was harmless error. But the conviction depended in large part upon the jury’s resolution of the question of the credibility of witnesses, and that determination must almost certainly have been influenced by the incriminating nature of the physical evidence illegally seized and erroneously admitted. There is thus at least “a reasonable possibility that the evidence complained of might have contributed to the conviction.” Fahy v. Connecticut, 375 U. S. 85, 86.

      The evidence against the accused included a confession of the crime charged. This Court refused to review the claim, contained in the petition for certiorari, that this confession had been involuntarily made. 374 U. S. 826, ante, p. 484.


author: Mr. Justice White

text:
    UNITED STEELWORKERS OF AMERICA, AFL-CIO, et al. v. NATIONAL LABOR RELATIONS BOARD et al.
    No. 89.
    Argued February 19, 1964.
    Decided March 23, 1964.

      Jerry D. Anker argued the cause for petitioners. With him on the brief were David E. Feller, Elliot Bredhoff and Michael H. Gottesman.

      Dominick L. Manoli argued the cause for the National Labor Relations Board. With him on the brief were Solicitor General Cox, Arnold Ordman and Norton J. Come.

      Theophil C. Kammholz argued the cause for respondent Carrier Corporation. With him on the brief was Kenneth C. McGuiness.

      Gregory S. Prince filed a brief for the Association of American Railroads, as amicus curiae, urging affirmance.
   Mr. Justice White

delivered the opinion of the Court.

The question presented by this case is whether a union violates § 8 (b)(4) of the National Labor Relations Act, 49 Stat. 449, as amended, by picketing an entrance, used exclusively by railroad personnel, to a railroad spur track located on a right-of-way owned by the railroad and adjacent to the struck employer’s premises.

On March 2, 1960, after the petitioning union and the respondent company, Carrier Corporation, failed to agree upon a collective bargaining contract the union, which was the certified bargaining agent, called a strike in support of its demands. During the course of the strike the union picketed the several entrances to the plant. Along the south boundary of Carrier’s property was a 35-foot railroad right-of-way used by the railroad for deliveries to Carrier and to three other companies in the area, General Electric, Western Electric, and Brace-Mueller-Huntley. The railroad spur ran across Thompson Road, a public thoroughfare which bounded Carrier’s property on the west, and through a gate in a continuous chain-link fence which enclosed both the property of Carrier Corporation and the railroad right-of-way. The gate was locked when the spur was not in use and was accessible only to railroad employees. The picketing with which we are concerned occurred at this gate.

Between March 2 and March 10, railroad personnel made several trips through the gate for the purpose of switching out cars for General Electric, Western Electric and Brace-Mueller-Huntley, and also to supply coal to Carrier and General Electric. On March 11 a switch engine manned by a regular switching crew made one trip serving the three nonstruck corporations. It then returned, this time manned by supervisory personnel, with 14 empty boxcars. The pickets, being aware that these cars were destined for use by Carrier, milled around the engine from the time it reached the western side of Thompson Road, attempting to impede its progress. By inching its way across the road, however, the locomotive succeeded in reaching and entering the gate. After uncoupling the empties just inside the railroad right-of-way, for future use by Carrier, the engine picked up 16 more cars which Carrier wanted shipped out and made its way back toward the gate. This time resistance from the picketing strikers was more intense. Some of the men stood on the footboard of the engine, others prostrated themselves across the rails and one union official parked his car on the track. Invective and threats were directed toward the operators of the train, and only after the pickets were dispersed by deputies of the Onondaga County sheriff’s office was it able to pass.

Acting upon charges filed by Carrier, the Regional Director of the National Labor Relations Board issued a complaint against the international and local union organizations and individual officials of each, alleging violations of §§ 8 (b)(1)(A) and 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act. The Trial Examiner found the union in violation of both sections and recommended appropriate cease-and-desist orders. The National Labor Relations Board sustained the Examiner’s finding that an unfair labor practice had been committed under §8 (b)(1)(A) and entered an order accordingly. The union does not contest this determination by the Board. The Board further concluded, however, that the picketing was primary activity and therefore saved from § 8 (b)(4)(B)’s proscription by the proviso that “nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing.” Noting the conceded fact that the deliveries and removals by the railroad in this case were made in connection with the normal operations of the struck employer, the Board regarded as dis-positive this Court’s decision in Electrical Workers Local No. 761 v. Labor Board, 366 U. S. 667, the General Electric case. 132 N. L. R. B. 127.

The Court of Appeals for the Second Circuit reversed the Board’s decision on the ground that the picketing at the railroad gate was directed solely at the neutral railroad employees and could not be regarded as incident to what the court considered the only legitimate union objective: publicizing the labor dispute to the employees involved therein, those working for Carrier. This Court’s holding in General Electric was deemed inapposite since the gate in the present case is located on premises belonging to the neutral employer. 311 F. 2d 135. Chief Judge Lumbard dissented. Because of the asserted conflict with General Electric and the importance of the problem to the national labor policy we granted certio-rari. 373 U. S. 908. We reverse the decision of the Court of Appeals.

The activities of the union in this case clearly fall within clauses (i) and (ii) of §8 (b)(4); likewise the objective, to induce the railroad to cease providing freight service to Carrier for the duration of the strike, is covered by the language of subsection (B), exclusive of the proviso. The question we have is whether the activities of the union, although literally within the definition of secondary activities contained in clauses (i) and (ii) of § 8 (b)(4), are nevertheless within the protected area of primary picketing carved out by Congress in the proviso to subsection (B).

The dividing line between forbidden secondary activity and protected primary activity has been the subject of intense litigation both before and after the 1959 amendments to § 8 (b) (4), which broadened the coverage of the section but also added the express exceptions for the primary strike and primary picketing. We need not detail the course of this sometimes confusing litigation; for in the General Electric case, supra, the Court undertook to survey the cases dealing with picketing at both primary and secondary sites and the result reached in that case largely governs this one. In the General Electric case, because the union’s object was to enmesh “employees of the neutral employers in its dispute” with the primary employer, the Board ordered the union to cease picketing a separate gate used exclusively by employees of certain independent contractors who had been doing work on the primary premises on a regular and continuous basis for a considerable period of time. 123 N. L. R. B. 1547. In this Court, the Board conceded that when the struck premises are occupied by the primary employer alone, the right of the union to engage in primary activity at or in connection with the primary premises may be given unlimited effect — “all union attempts, by picketing and allied means, to cut off deliveries, pickups, and employment at the primary employer’s plant will be regarded as primary and outside the purview of Section 8 (b)(4)(A).” But the Board insisted that the facts presented a common situs problem since the regular work of the contractors was continuously done on the primary premises and hence the rules of the Moore Dry Dock case should be applied. The union, on the other hand, argued that no picketing at the primary premises should be considered as secondary activity.

The Court accepted the approach neither of the Board nor of the Union. The location of the picketing, though important, was not deemed of decisive significance; picketing was not to be protected simply because it occurred at the site of the primary employer’s plant. Neither, however, was all picketing forbidden where occurring at gates not used by primary employees. The legality of separate gate picketing depended upon the type of work being done by the employees who used that gate; if the duties of those employees were connected with the normal operations of the employer, picketing directed at them was protected primary activity, but if their work was unrelated to the day-to-day operation of the employer’s plant, the picketing was an unfair labor practice. The order of the NLRB was vacated to permit determination of the case in accordance with the proper test.

It seems clear that the rejection of the Board’s position in General Electric leaves no room for the even narrower approach of the Court of Appeals in this case, which is that the picketing at the site of a strike could be directed at secondary employees only where incidental to appeals to primary employees. Under this test, no picketing at gates used only by employees of delivery men would be permitted, a result expressly disapproved by the Court in General Electric: “On the other hand, if a separate gate were devised for regular plant deliveries, the barring of picketing at that location would make a clear invasion on traditional primary activity of appealing to neutral employees whose tasks aid the employer’s everyday operations.” 366 U. S., at 680-681.

Although the picketing in the General Electric case occurred-prior to the 1959 amendments to § 8 (b) (4), the decision was rendered in 1961 and the Court bottomed its decision upon the amended law and its legislative history. We think General Electric’s construction of the proviso to § 8 (b) (4) (B) is sound and we will not disturb it. The primary strike, which is protected by the proviso, is aimed at applying economic pressure by halting the day-to-day operations of the struck employer. But Congress not only preserved the right to strike; it also saved “primary picketing” from the secondary ban. Picketing has traditionally been a major weapon to implement the goals of a strike and has characteristically been aimed at all those approaching the situs whose mission is selling, delivering or otherwise contributing to the operations which the strike is endeavoring to halt. In light of this traditional goal of primary pressures we think Congress intended to preserve the right to picket during a strike a gate reserved for employees of neutral delivery men furnishing day-to-day service essential to the plant’s regular operations.

Nor may the General Electric case be put aside for the reason that the picketed gate in the present case was located on property owned by New York Central Railroad and not upon property owned by the primary employer. The location of the picketing is an important but not decisive factor, and in this case we agree with Judge Lumbard that the location of the picketed gate upon New York Central property has little, if any, significance:

“In this case, it is undisputed that the railroad’s operations for Carrier were in furtherance of Carrier’s normal business. It is equally clear from the record that the picketing employees made no attempt to interfere with any of the railroad’s operations for plants other than Carrier. The railroad employees were not encouraged to, nor did they, refuse to serve the other plants. The picketing was designed to accomplish no more than picketing outside one of Carrier’s own delivery entrances might have accomplished. Because the fence surrounding the railroad’s right of way was a continuation of the fence surrounding the Carrier plant, there was no other place where the union could have brought home to the railroad workers servicing Carrier its dispute with Carrier.” 311 F. 2d 135, 154.

The railroad gate adjoined company property and was in fact the railroad entrance gate to the Carrier plant. For the purposes of § 8 (b)(4) picketing at a situs so proximate and related to the employer’s day-to-day operations is no more illegal than if it had occurred at a gate owned by Carrier.

Carrier, however, has another argument: holding this picketing protected thwarts the purpose of the 1959 amendment to bring railroads within the protection of §8 (b)(4). The definitions of “employer” and “employee” in §§ 2 (2) and 2 (3) of the Act specifically exclude “any person subject to the Railway Labor Act” and the employees of any such “person.” Prior to 1959, §8 (b)(4) prohibited secondary inducements to “the employees” of any “employer” and there arose a conflict of authority between the Board and several Courts of Appeals as to whether or not the secondary boycott provisions applied to any appeals to railroad employees. Congress resolved this question in 1959 by revising §8 (b)(4) to proscribe inducement of secondary work stoppages by “any individual employed by any person.” There is no indication whatever that Congress intended by the revision to do more than to eliminate the uncertainty deriving from the words “employer” and “employee” and thereby to extend to railroads the same protections which other employers enjoyed. Our holding does not derogate from this equality of treatment. On the contrary, the rule for which Carrier contends would place the railroad on a better footing than all other employers who do business with the struck plant. It would distinguish between picketing an entrance to a struck plant which is owned by the primary employer and picketing a gate which by design or otherwise had been conveyed to a neutral furnishing delivery service, an anomaly which we do not believe Congress intended.

Finally, we reject Carrier’s argument that whatever the rule may be in the ordinary case of separate gate picketing, the picketing of the railroad gate in this case was violative of § 8 (b) (4) because it was accompanied by threats and violence. Under § 8 (b) (4) the distinction between primary and secondary picketing carried on at a separate gate maintained on the premises of the primary employer, does not rest upon the peaceful or violent nature of the conduct, but upon the type of work being done by the picketed secondary employees. Such picketing does not become illegal secondary activity when violence is involved but only when it interferes with business intercourse not connected with the ordinary operations of the employer. This is not to say, of course, that violent primary picketing is in all respects legal but only that it is not forbidden by § 8 (b) (4); it would escape neither the provisions of the federal law nor the local law if violative thereof.

This is all, we think, that was intended by the proviso to §8 (b)(4) which provides that nothing in subsection (B) “shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing.” (Emphasis supplied.) It is possible to read this language to mean that the proviso does not save from proscription under §8 (b)(4) union activity violative of other laws, but this interpretation would condemn as secondary conduct any and all picketing directed toward neutral employers so long as the conduct, as in the case of violence, was forbidden by some other law. In our view, the words “where not otherwise unlawful” were inserted only to make clear that the proviso, while excluding the conduct from the § 8 (b)(4) sanctions did not also legalize it under other laws, state or federal. The legality of violent picketing, if “primary,” must be determined under other sections of the statute or under state law.

Reversed.

Mr. Justice Douglas concurs in the result.

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

       Section 8 (b)(4) provides in pertinent part as follows:
      “(4)(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise, handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is—
      “(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 159 of this title: Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing.” 29 U. S. C. (Supp. IV) §158 (b)(4).

       The union made no objection to the deliveries of coal to Carrier, since the nonstruck General Electric plant obtained its coal from Carrier.

       Brief for the National Labor Relations Board, Electrical Workers Local 761 v. Labor Board, No. 321, October Term, 1960, p. 31.

        Sailors’ Union of the Pacific, 92 N. L. R. B. 647.

       The Court said: “The 1959 Amendments to the National Labor Relations Act, which removed the word ‘concerted’ from the boycott provisions, included a proviso that ‘nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful,. any primary strike or primary picketing.’ 29 U. S. C. (Supp. I, 1959) §158 (b)(4)(B). The proviso was directed against the fear that the removal of ‘concerted’ from the statute might be interpreted so that ‘the picketing at the factory violates section 8 (b) (4) (A) because the pickets induce the truck drivers employed by the trucker not to perform their usual services where an object is to compel the trucking firm not to do business with the . . . manufacturer during the strike.’ Analysis of the bill prepared by Senator Kennedy and Representative Thompson, 105 Cong. Rec. 16589.” 366 U. S., at 681.

       See H. R. Rep. No. 741, on H. R. 8342, 86th Cong., 1st Sess., 21, 80; H. R. Rep. No. 1147, on S. 1555, 86th Cong., 1st Sess., 38; 2 Leg. Hist, of the Labor-Management Reporting and Disclosure Act of 1959, 1575-1576, 1707, 1857.

       Compare International Brotherhood of Teamsters (The International Rice Milling Co.), 84 N. L. R. B. 360; International Woodworkers of America (Smith Lumber Co.), 116 N. L. R. B. 1756; International Brotherhood of Teamsters (The Alling & Cory Company), 121 N. L. R. B. 315; and Lumber & Sawmill Workers Local Union 2409 (Great Northern Railway Co.), 122 N. L. R. B. 1403, with International Rice Milling Co. v. Labor Board, 183 F. 2d 21 (C. A. 5th Cir.); Smith Lumber Co. v. Labor Board, 246 F. 2d 129 (C. A. 5th Cir.); Great Northern Railway Co. v. Labor Board, 272 F. 2d 741 (C. A. 9th Cir.).

       Compare Labor Board v. Rice Milling Co., 341 U. S. 665, 672, in which the Court said: “In the instant case the violence on the picket line is not material. The complaint was not based upon that violence, as such. To reach it, the complaint more properly would have relied upon § 8 (b) (1) (A) or would have addressed itself to local authorities. The substitution of violent coercion in place of peaceful persuasion would not in itself bring the complained-of conduct into conflict with § 8 (b) (4). It is the object of union encouragement that is proscribed by that section, rather than the means adopted to make it felt.”


text:
    JACKSON et al. v. UNITED STATES.
    No. 361.
    Argued March 4, 1964.
    Decided March 23, 1964.

      Paul Burks argued the cause for petitioners. With him on the briefs were Edward L. Compton and John C. Argue.

      John B. Jones, Jr. argued the cause for the United States. With him on the brief were Solicitor General Cox, Assistant Attorney General Oberdorfer, Robert N. Anderson and Michael I. Smith.

   Mr. Justice White

delivered the opinion of the Court.

Since 1948 § 812 (e)(1)(A) of the Internal Revenue Code of 1939 has allowed a “marital deduction” from a decedent’s gross taxable estate for the value of interests in property passing from the decedent to his surviving spouse. Subsection (B) adds the qualification, however, that interests defined therein as “terminable” shall not qualify as an interest in property to which the marital deduction applies. The question raised by this case is whether the allowance provided by California law for the support of a widow during the settlement of her husband’s estate is a terminable interest.

Petitioners are the widow-executrix and testamentary trustee under the will of George Richards who died a resident of California on May 27, 1951. Acting under the Probate Code of California, the state court, on June 30, 1952, allowed Mrs. Richards the sum of $3,000 per month from the corpus of the estate for her support and maintenance, beginning as of May 27, 1951, and continuing for a period of 24 months from that date. Under the terms of the order, an allowance of $42,000 had accrued during the 14 months since her husband’s death. This amount, plus an additional $3,000 per month for the remainder of the two-year period, making a total of $72,000, was in fact paid to Mrs. Richards as widow’s allowance.

On the federal estate tax return filed on behalf of the estate, the full $72,000 was claimed as a marital deduction under § 812 (e) of the Internal Revenue Code of 1939. The deduction was disallowed, as was a claim for refund after payment of the deficiency, and the present suit for refund was then brought in the District Court. The District Court granted summary judgment for the United States, holding, on the authority of Cunha’s Estate v. Commissioner, 279 F. 2d 292, that the allowance to the widow was a terminable interest and not deductible under the marital provision of the Internal Revenue Code. The Court of Appeals affirmed, 317 F. 2d 821, and we brought the case here because of an asserted conflict between the decision below and that of the Court of Appeals for the Fifth Circuit in United States v. First National Bank & Trust Co. of Augusta, 297 F. 2d 312. 375 U. S. 894. For the reasons given below, we affirm the decision of the Court of Appeals.

In enacting the Revenue Act of 1948, 62 Stat. 110, with its provision for the marital deduction, Congress left undisturbed § 812 (b) (5) of the 1939 Code, which allowed an estate tax deduction, as an expense of administration, for amounts “reasonably required and actually expended for the support during the settlement of the estate of those dependent upon the decedent.” 26 U. S. C. (1946 ed.) § 812 (b)(5). As the legislative history shows, support payments under § 812 (b)(5) were not to be treated as part of the marital deduction allowed by § 812 (e)(1). The Revenue Act of 1950, 64 Stat. 906, however, repealed § 812 (b)(5) because, among other reasons, Congress believed the section resulted in discriminations in favor of States having liberal family allowances. Thereafter allowances paid for the support of a widow during the settlement of an estate “heretofore deductible under section 812 (b) will be allowable as a marital deduction subject to the conditions and limitations of section 812 (e).” S. Rep. No. 2375, 81st Cong., 2d Sess., p. 130.

The “conditions and limitations” of the marital deduction under § 812 (e) are several but we need concern ourselves with only one aspect of §812(e)(1)(B), which disallows the deduction of “terminable” interests passing to the surviving spouse. It was conceded in the Court of Appeals that the right to the widow’s allowance here involved is an interest in property passing from the decedent within the meaning of § 812 (e)(3), that it is an interest to which the terminable-interest rule of §812(e)(1)(B)is applicable, and that the conditions set forth in (i) and (ii) of § 812 (e)(1)(B) were satisfied under the decedent’s will and codicils thereto. The issue, therefore, is whether the interest in property passing to Mrs. Richards as widow’s allowance would “terminate or fail” upon the “lapse of time, upon the occurrence of an event or contingency, or upon the failure of an event or contingency to occur.”

We accept the Court of Appeals’ description of the nature and characteristics of the widow’s allowance under California law. In that State, the right to a widow’s allowance is not a vested right and nothing accrues before the order granting it. The right to an allowance is lost when the one for whom it is asked has lost the status upon which the right depends. If a widow dies or remarries prior to securing an order for a widow’s allowance, the right does not survive such death or remarriage. The amount of the widow’s allowance which has accrued and is unpaid at the date of death of the widow is payable to her estate but the right to future payments abates upon her death. The remarriage of a widow subsequent to an order for an allowance likewise abates her right to future payments. 317 F. 2d 821, 825.

In light of these characteristics of the California widow’s allowance, Mrs. Richards did not have an indefeasible interest in property at the moment of her husband’s death since either her death or remarriage would defeat it. If the order for support allowance had been entered on the day of her husband’s death, her death or remarriage at any time within two years thereafter would terminate that portion of the interest allocable to the remainder of the two-year period. As of the date of Mr. Richards’ death, therefore, the allowance was subject to failure or termination “upon the occurrence of an event or contingency.” That the support order was entered in this case 14 months later does not, in our opinion, change the defeasible nature of the interest.

Petitioners ask us to judge the terminability of the widow’s interest in property represented by her allowance as of the date of the Probate Court’s order rather than as of the date of her husband’s death. The court’s order, they argue, unconditionally entitled the widow to $42,000 in accrued allowance of which she could not be deprived by either her death or remarriage. It is true that some courts have followed this path, but it is difficult to accept an approach which would allow a deduction of $42,000 on the facts of this case, a deduction of $72,000 if the order had been entered at the end of two years from Mr. Richards’ death and none at all if the order had been entered immediately upon his death. Moreover, judging deductibility as of the date of the Probate Court’s order ignores the Senate Committee’s admonition that in considering terminability of an interest for purposes of a marital deduction “the situation is viewed as at the date of the decedent’s death.” S. Rep. No. 1013, Part 2, 80th Cong., 2d Sess., p. 10. We prefer the course followed by both the Court of Appeals for the Ninth Circuit in Cunha’s Estate, supra, and by the Court of Appeals for the Eighth Circuit in United States v. Quivey, 292 F. 2d 252. Both courts have held the date of death of the testator to be the correct point of time from which to judge the nature of a widow’s allowance for the purpose of deciding terminability and deductibility under § 812 (e)(1). This is in accord with the rule uniformly followed with regard to interests other than the widow’s allowance, that qualification for the marital deduction must be determined as of the time of death.

Our conclusion is confirmed by § 812 (e) (1) (D), which saves from the operation of the terminable-interest rule interests which by their terms may (but do not in fact) terminate only upon failure of the widow to survive her husband for a period not in excess of six months. The premise of this provision is that an interest passing to a widow is normally to be judged as of the time of the testator’s death rather than at a later time when the condition imposed may be satisfied; hence the necessity to provide an exception to the rule in the case of a six months’ survivorship contingency in a will. A gift conditioned upon eight months’ survivorship, rather than six, is a nondeductible terminable interest for reasons which also disqualify the statutory widow’s allowance in California where the widow must survive and remain unmarried at least to the date of an allowance order to become indefeasibly entitled to any widow’s allowance at all.

Petitioners contend, however, that the sole purpose of the terminable-interest provisions of the Code is to assure that interests deducted from the estate of the deceased spouse will not also escape taxation in the estate of the survivor. This argument leads to the conclusion that since it is now clear that unless consumed or given away during Mrs. Richards’ life, the entire $72,000 will be taxed to her estate, it should not be included in her husband’s. But as we have already seen, there is no provision in the Code for deducting all terminable interests which become nonterminable at a later date and therefore taxable in the estate of the surviving spouse if not consumed or transferred. The examples cited in the legislative history-make it clear that the determinative factor is not tax-ability to the surviving spouse but terminability as defined by the statute. Under the view advanced by petitioners all cash allowances actually paid would fall outside § 812 (e)(1)(B); on two different occasions the Senate has refused to give its approval to House-passed amendments to the 1954 Code, which would have made the terminable-interest rule inapplicable to all widow’s allowances actually paid within specified periods of time.

We are mindful that the general goal of the marital deduction provisions was to achieve uniformity of federal estate tax impact between those States with community property laws and those without them. But the device of the marital deduction which Congress chose to achieve uniformity was knowingly hedged with limitations, including the terminable-interest rule. These provisions may be imperfect devices to achieve the desired end, but they are the means which Congress chose. To the extent it was thought desirable to modify the rigors of the terminable-interest rule, exceptions to the rule were written into the Code. Courts should hesitate to provide still another exception by straying so far from the statutory language as to allow a marital deduction for the widow’s allowance provided by the California statute. The achievement of the purposes of the marital deduction is dependent to a great degree upon the careful drafting of wills; we have no fear that our decision today will prevent either the full utilization of the marital deduction or the proper support of widows during the pendency of an estate proceeding.

Affirmed.

Mr. Justice Douglas dissents.

       The deduction allowed is: “An amount equal to the value of any interest in property which passes or has passed from the decedent to his surviving spouse, but only to the extent that such interest is included in determining the value of the gross estate.” 26 U. S. C. (1952 ed.) §812 (e)(1)(A).

       Subsection (B) provides in pertinent part: “Where, upon the lapse of time, upon the occurrence of an event or contingency, or upon the failure of an event or contingency to occur, such interest passing to the surviving spouse will terminate or fail, no deduction shall be allowed with respect to such interest—
      “(i) if an interest in such property passes or has passed (for less than an adequate and full consideration in money or money’s worth) from the decedent to any person other than such surviving spouse (or the estate of such spouse); and
      “(ii) if by reason of such passing such person (or his heirs or assigns) may possess or enjoy any part of such property after such termination or failure of the interest so passing to the surviving spouse.” 26 U. S. C. (1952 ed.) § 812 (e) (1) (B).
      The marital-deduction and terminable-interest provisions of the 1954 Code are similar to those of its 1939 counterpart. See 26 U. S. C. (1958 ed.) §2056 (a) and (b).

       S. Rep. No. 1013, Part 2, 80th Cong., 2d Sess., p. 3.

       The legislative history states: “In practice [the support allowance deduction] has discriminated in favor of estates located in States which authorize liberal allowances for the support of dependents, and it has probably also tended to delay the settlement of estates.” S. Rep. No. 2375, 81st Cong., 2d Sess., p. 57.

        United States v. First National Bank & Trust Co. of Augusta, 297 F. 2d 312 (C. A. 5th Cir.); Estate of Gale v. Commissioner, 35 T. C. 215; Estate of Rudnick v. Commissioner, 36 T. C. 1021.

        Bookwalter v. Lamar, 323 F. 2d 664 (C. A. 8th Cir.); United States v. Mappes, 318 F. 2d 508 (C. A. 10th Cir.); Commissioner v. Ellis’ Estate, 252 F. 2d 109 (C. A. 3d Cir.); Starrett v. Commissioner. 223 F. 2d 163 (C. A. 1st Cir.); Estate of Sbicca v. Commissioner, 35 T. C. 96.

       “For the purposes of subparagraph (B) an interest passing to the surviving spouse shall not be considered as an interest which will terminate or fail upon the death of such spouse if—
      “(i) such death will cause a termination or failure of such interest only if it occurs within a period not exceeding six months after the decedent’s death, or only if it occurs as a result of a common disaster resulting in the death of the decedent and the surviving spouse, or only if it occurs in the case of either such event; and
      “(ii) such termination or failure does not in fact occur.” 26 U. S. C. (1952 ed.) § 812 (e) (1) (D).

       The Senate Report accompanying the House bill which eventually became law states that “Subparagraph (D) of section 812 (e)(1) provides an exception to the terminable interest rule under subparagraph (B) of such section. This exception is for the purpose of allowing the marital deduction in certain cases where there is a contingency with respect to the interest passing to the surviving spouse under a common-disaster clause or similar clause in the decedent’s will.” S. Rep. No. 1013, Part 2, 80th Cong., 2d Sess., p. 15.

        Id., at 10, 11, 15.

       See S. Rep. No. 1622, 83d Cong., 2d Sess., p. 125; H. R. 2573, 86th Cong., 1st Sess.; and H. R. Rep. No. 818, 86th Cong., 1st Sess.

        United States v. Stapf, 375 U. S. 118.

       See Surrey, Federal Taxation of the Family — The Revenue Act of 1948, 61 Harv. L. Rev. 1097, 1156-1157; Anderson, The Marital Deduction and Equalization Under the Federal Estate and Gift Taxes Between Common Law and Community Property States, 54 Mich. L. Rev. 1087, 1109.


author: Per Curiam.

text:
    KIRK v. BOEHM, SUPERINTENDENT, DEPARTMENT OF PUBLIC INSTRUCTION, PENNSYLVANIA, et al.
    No. 753.
    Decided March 23, 1964.
    Appellant pro se.

      John D. Killian III, Deputy Attorney General of Pennsylvania, and Lewis B. Beatty, Jr. for appellees.
   Per Curiam.

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


text:
    CEPERO v. PRESIDENT OF THE UNITED STATES et al.
    Nos. 671, Misc., and 843, Misc.
    Decided March 23, 1964.
   Per Curiam.

The appeals are dismissed for want of jurisdiction.

The Chief Justice took no part in the consideration or decision of these cases.


text:
    FAWCETT PUBLICATIONS, INC., v. MORRIS.
    No. 57.
    Decided March 23, 1964.

      Howard Ellis, Perry S. Patterson, Don H. Reuben and Thomas A. Diskin for appellant.

      C. E. Ram Morrison for appellee.
   Per Curiam.

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

Mr. Justice Black and Mr. Justice Douglas are of the opinion that probable jurisdiction should be noted or that the petition for writ of certiorari should be granted.


text:
    AUCLAIR TRANSPORTATION, INC., et al. v. UNITED STATES et al.
    No. 724.
    Decided March 23, 1964.

      Peter T. Beardsley and Richard R. Sigmon for appellants.

      Solicitor General Cox, Assistant Attorney General Or-rick, Lionel Kestenbaum, Robert W. Ginnane and H. Neil Garson for the United States and the Interstate Commerce Commission; and William J. Taylor for Railway Express Agency, Inc., appellees.
   Per Curiam.

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


author: Mr. Justice Clark Mr. Justice Harlan,

text:
    FEDERAL POWER COMMISSION v. HUNT et al.
    No. 273.
    Argued March 2, 1964.
    Decided March 30, 1964.

      Richard A. Solomon argued the cause for petitioner. With him on the brief were Solicitor General Cox, Ralph S. Spritzer, Howard E. Wahrenbrock and Peter H. Schiff.

      Richard F. Generelly argued the cause for respondents. With him on the brief were Robert W. Henderson, Thomas G. Crouch and Robert E. May.

   Mr. Justice Clark

delivered the opinion of the Court.

The issue in this case is whether the Federal Power Commission, when granting an application for a temporary certificate authorizing the sale of natural gas in interstate commerce, can impose a condition that the applicant shall not increase its certificated price pending a hearing on the applicant’s petition for permanent authority. Each of the seven applications involved here requested temporary operating authority to sell natural gas in interstate commerce on emergency grounds, as provided by §§ 7 (c) and (e) of the Natural Gas Act. In each case the Federal Power Commission conditioned the temporary grant of authority upon, inter alia, the producer’s maintaining the initial price, without increase, during the period of the temporary authorization. On appeal, the Court of Appeals set aside this condition, holding that it was beyond the power of the Commission and conflicted with the right of a producer to initiate a higher contract rate under § 4 of the Act. 306 F. 2d 334. We granted certiorari because of the importance of the question to the enforcement of the Natural Gas Act. 375 U. S. 810. We conclude that the Commission can impose such a condition in granting temporary authorizations under § 7 and therefore reverse the judgments.

I.

While this case involves applications for seven different temporary authorizations, the essential facts as to each, save the dates and gas fields, are the same. Since the parties and the Court of Appeals have treated the sale by the Hassie Hunt Trust as typical, we shall do likewise.

The Hunts are producers of natural gas in the Alta Loma area in Galveston County in Texas Railroad District No. 3. In July 1960, the Commission issued a permanent certificate authorizing sales of natural gas from the Alta Loma and other areas to the Peoples Gulf Coast Natural Gas Pipeline Co. 24 F. P. C. 1. The authorization was conditioned upon the producer's filing an amended contract providing for an initial price of 200 per Mcf., with an escalation of 30 after 10 years. The original contract had allowed four 20 escalations at four-year intervals. The order was found defective, however, because the Public Service Commission of New York, which sought a lower initial price, had been refused intervention before the Commission. See Public Service Comm’n v. Federal Power Comm’n, 111 U. S. App. D. C. 153, 295 F. 2d 140, cert. denied, sub nom. Shell Oil Co. v. Public Service Comm’n, 368 U. S. 948. Thereafter the Commission vacated its issuance of the certificate and ordered a new hearing on the question of initial price. 26 F. P. C. 689.

In the meantime, after the issuance, but prior to the vacating, of the July 1960 certificate, the Commission issued General Policy No. 61-1,18 CFR § 2.56, 24 F. P. C. 818, which fixed the guideline for initial prices for Texas Railroad District No. 3 at 18¢ per Mcf., 2¢ below the initial price allowed in the July 1960 certificate.

Thereafter, on February 27, 1961, the Hassie Hunt Trust applied for a permanent certificate of public convenience and necessity allowing sales from a new well in this same area to Natural Gas Pipeline Company of America, the successor to Peoples Gulf Coast. It also applied for temporary authorization to begin service immediately under the emergency provisions of the Commission’s Regulations issued under § 7 (c) of the Act. 18 CFR § 157.28. The emergency was alleged to result from the “necessity of paying shut-in royalties and the incurrence of drainage through sales by others to pipeline companies other than Natural.” The new sale was covered by a 20-year contract, dated December 15, 1960, with provisions identical to those of the earlier contract, i. e., an initial price of 200 per Mcf. with 20 escalations at four-year intervals. The Commission on April 7, 1961, granted the temporary authorization subject to three conditions: (1) that the total initial price not exceed 180 per Mcf. and thus be in keeping with the guideline rate set for Texas Railroad District No. 3, (2) that within 20 days supplements to the contracts be filed consistent with this price, and (3) that the temporary authorization be accepted in writing within 20 days. Deliveries were commenced by the producer on April 19 before these conditions were met. On May 5 a conditional acceptance was filed reserving the right to seek removal of the conditions imposed and tendering an amended contract providing for an 180 initial price for 30 days with 200 per Mcf. thereafter. The Commission rejected this conditional acceptance and subsequently, in order to make clear its position, specifically provided that the initial rate was to be 180 and that there was to be no change therein pending the hearing on permanent authorization. The proposed 200 rate was rejected and thereafter this review followed.

The Court of Appeals sustained the 180 initial price but held that the Commission had no power to condition temporary authorizations so as to preclude the filing and collection of increased rates pursuant to § 4 of the Act.

II.

Once again we are confronted with a question solely of the proper interpretation of the Natural Gas Act. This time we must determine the interplay of §§ 4 and 7. These sections are the avenues through which the natural gas producer may, by contract or otherwise, initially propose the dedication of his natural gas supply to interstate movement (§7) and, once so dedicated by order of the Federal Power Commission, thereafter initiate changes in existing rates (§4). We will proceed with separate analyses of these two sections.

Section 7 (c) came into the Natural Gas Act in 1942 and provides the method by which gas may be dedicated and certificated into interstate commerce. It prohibits a natural gas producer from engaging in the transportation or sale of natural gas “unless there is in force with respect to such natural-gas company a certificate of public convenience and necessity issued by the Commission authorizing such acts or operations.” In order to secure such certificates, applications are filed with the Commission and in due course the applicants are afforded a hearing. Sections 7 (c) and (e) of the Act command that a certificate shall be issued if the Commission finds it “required by the present or future public convenience and necessity” and if the applicant meets certain tests of reliability, such as ability and willingness to perform. In issuing such certificates, the Commission has “the power to attach to the issuance of the certificate and to the exercise of the rights granted thereunder such reasonable terms and conditions as the public convenience and necessity may require.” §7(e).

Hearings under § 7 (e) for permanent certification are time consuming. The Congress, realizing this, provided in § 7 (c) that “the Commission may issue a temporary certificate in cases of emergency, to assure maintenance of adequate service or to serve particular customers, without notice or hearing, pending the determination of an application for a certificate, and may by regulation exempt from the requirements of this section temporary acts or operations for which the issuance of a certificate will not be required in the public interest.” Pursuant to this authorization the Commission adopted a regulation which sets out standards for emergency authorizations and requires the applicant to file “a statement of intention to invoke this section.” 18 CFR § 157.28 (c). The Commission grants the temporary certificate, where it deems necessary,' without notice or hearing. Under the terms of the regulation, this authorization continues until final Commission action under §§ 4 and 7, “without prejudice to such rate or other condition as may be attached to the issuance of the certificate.” 18 CFR § 157.28.

It must be noted, however, that § 7 does not stipulate that the Commission must find the initial rate to be just and reasonable but simply that the service proposed is required by the present and future public convenience and necessity. Nor does § 7 grant the Commission power to suspend the rate authorized in permanent or temporary certificates issued under that section. Once a permanent certificate is granted the Commission can correct an improper rate only under § 5 of the Act, 52 Stat. 823, 15 U. S. C. § 717d, which likewise has no suspension provision. In the light of this'inability to suspend the initial rate granted under a § 7 certificate, the Commission attaches conditions to the certificate of authority which it deems necessary to afford consumers the “complete, permanent and effective bond of protection from excessive rates and charges” for which we found the Act was framed in Atlantic Refining Co. v. Public Service Comm’n, 360 U. S. 378, 388 (1959). “The heart of the Act,” we said there, was in those provisions of § 7 (e) “requiring initially that any ‘proposed service, sale, operation, construction, extension, or acquisition . . . will be required by the present or future public convenience and necessity’ . . . and that all rates and charges ‘made, demanded, or received’ shall be ‘just and reasonable,’ § 4, 15 U. S. C. § 717c.” In this case, the Commission concluded that when granting temporary certificates it must look even more carefully to the present and future public convenience and necessity and interpose such conditions precedent as would, in its view, fully protect consumers from excessive rates and charges.

Section 4 was included in the original Act of 1938. 52 Stat. 822,15 U. S. C. § 717c. It provides in part that “no change shall be made by any natural-gas company in any . . . rate . . . except after thirty days’ notice to the Commission and to the public.” §4(d). Whenever such new rate is filed, the Commission may, after notice, hold hearings to determine whether the rate is lawful and may suspend its operation, but only for a period of five months. §4(e). If the proceeding is not concluded within those five months, the proposed rate becomes effective and collectible, subject to subsequent refund by the natural gas company to the extent the rate is not just and reasonable. As we said in United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U. S. 332, 341 (1956), the power granted to the Commission “is simply the power to review rates and contracts made in the first instance by natural gas companies and, if they are determined to be unlawful, to remedy them.” And we specifically pointed out that all § 4 (e) does “is to add to this basic power, in the case of a newly changed rate . . . the further powers (1) to preserve the status quo pending review of the new rate by suspending its operation for a limited period, and (2) thereafter to make its order retroactive, by means of the refund procedure, to the date the change became effective.” Ibid. The power granted to the Commission in § 4 does not come into play until after the initial certification of the natural gas into interstate commerce has been granted under § 7.

In the instant case no permanent certificates authorizing sales in interstate commerce have yet been issued. Temporary certificates have been allowed and each is conditioned upon the maintenance of the initial price. Thus, if respondents’ position is correct, then the conditions precedent to the issuance of the temporary certificates required by the Commission can be nullified by subsequent independent action of the respondents in filing a new contract under § 4. We do not believe that the Congress intended any such incongruous result.

III.

We find no conflict in the directives of the two sections. Indeed, they supplement one another and thereby work together in efficient conjunction to carry out the purposes of the Act. When the independent producer knocks on the door of the Commission for permission to enter his gas in interstate commerce he must submit to the requirements of § 7. His natural gas must be certificated before it can move into interstate commerce. If he wishes to avoid the delay incident to a hearing for a permanent certificate he may apply for temporary authorization, which may be granted upon ex parte application. In view of this, the Commission must have the authority to condition a temporary certificate so as to avoid irreparable injury to affected parties. This condition, once imposed, continues only during the pendency of the producer’s application for a permanent certificate. In view of the ex parte nature of the proceeding, it appears only fair to all concerned that the condition upon which the rate was temporarily certified be continued unchanged until the permanent certificate is issued.

Under the procedures of the Act, it is at the point of permanent or unconditional temporary certification that the provisions of § 4 become applicable. The gas has been permanently certificated into interstate commerce and the independent producer is then free to pursue the rate-filing procedure of that section.

This Court previously discussed the use of the temporary certificate procedure in Atlantic Refining Co. v. Public Service Comm’n, supra. There we indicated that the Commission might avail itself of its power to condition the initial certification of natural gas into interstate commerce in order to prevent a triggering of general price rises. The language is unmistakably clear as to the claim made here that the vitality of § 4 of the Act is being impaired and we therefore repeat and reaffirm it:

“This is not an encroachment upon the initial rate-making privileges allowed natural gas companies under the Act, United Gas Pipe Line Co. v. Mobile Gas Service Corp., supra, but merely the exercise of that duty imposed on the Commission to protect the public interest in determining whether the issuance of the certificate is required by the public convenience and necessity, which is the Act’s standard in § 7 applications. In granting such conditional certificates, the Commission does not determine initial prices nor does it overturn those agreed upon by the parties. Rather, it so conditions the certificate that the consuming public may be protected while the justness and reasonableness of the price fixed by the parties is being determined under other sections of the Act. Section 7 procedures in such situations thus act to hold the line awaiting adjudication of a just and reasonable rate.” At 391-392.

Nor is it any answer to say that the suspension power under § 4 (e) will afford protection to the public. The experience since our opinion in Atlantic Refining Co., supra, indicates that a triggering of price rises often results from the out-of-line initial pricing of certificated gas. These effects become irreversible and splash over into intrastate sales, thus generating reciprocal pressures that directly affect jurisdictional rates. As we said in Federal Power Comm’n v. Tennessee Gas Transmission Co., 371 U. S. 145, 154, 155 (1962), the possibility of refund does not afford sufficient protection:

“True, the exaction would have been subject to refund, but experience has shown this to be somewhat illusory .... It is, therefore, the duty of the Commission to look at The backdrop of the practical consequences [resulting] . . . and the purposes of the Act,’ Sunray Mid-Continent Oil Co. v. Federal Power Comm’n, 364 U. S. 137, 147 (1960), in exercising its discretion under § 16 to issue interim orders . . . .”

IV.

Our interpretation of the power of the Commission under §§ 7 (c) and (e) is buttressed by the legislative history. They were added to the Act in 1942, four years after its original passage. Prior to their adoption the only rate-making regulatory tools the Commission possessed were §§ 4 and 5, and they came into operation only after the natural gas was already moving in interstate commerce. Sections 7 (c) and (e) were designed to control the certification of gas destined for interstate movement. The purpose of the amendments was to give “the Commission an opportunity to scrutinize the financial set-up, the adequacy of the gas reserves, the feasibility and adequacy of the proposed services, and the characteristics of the rate structure ... at a time when such vital matters can readily be modified as the public interest may demand. . . .” House Committee on Interstate and Foreign Commerce, H. R. Rep. No. 1290, 77th Cong., 1st Sess., 2-3. Its- counterpart in the Senate likewise reported:

“Provisions of the Natural Gas Act empower the Commission to prevent uneconomic extensions and waste, but it can so regulate such powers only when the extension is to ‘a market in which natural gas is already being served by another natural-gas -company.’ Thus the possibilities of waste, uneconomic and uncontrolled extensions are multiple and tremendous. The present bill would correct this glaring inadequacy of the act. It would also authorize the Commission to examine costs, finances, necessity, feasibility, and adequacy of proposed services. The characteristics of their rate structure could be studied.” Senate Committee on Interstate Commerce, S. Rep. No. 948, 77th Cong., 2d Sess., 1-2.

Clearly, the Commission was given the power to lay down conditions precedent to the entry of the natural gas into interstate commerce. Moreover, the Commission has long recognized this obligation and has required modification of many tariff and contract provisions as a condition to the granting of a certificate.

The existence of broad discretionary power in the Commission to condition temporary certificates appears to us to be vital to its ability to hold the line in pricing. The extent of that power in permanent certification is not before us now, since each of these applications is for temporary certification. It is said that the condition of the Commission’s docket transposes, for all practical matters, temporary certificates into permanent ones. This claim arises due to the delays incident to the issuance of a permanent certificate. We spoke of the “nigh interminable” delay in § 5 proceedings in Atlantic Refining Co. v. Public Service Comm’n, supra, at 389. There delay operated against the consumer. Here it operates against the producer. The Commission has been making efforts in this regard, through the establishment of guidelines for determining initial prices and other administrative devices. 43 F. P. C. Ann. Rep. 13, 119-120 (1963). However, we again call to its attention the dangers inherent in the accumulation of a large backlog of cases with its accompanying irreparable injury to the parties. Moreover, consumers may become directly affected thereby through the reluctance of producers to enter interstate markets because of the long delay incident to permanent certification. Procedures must be worked out, not only to clear up this docket congestion, but also, to maintain a reasonably clear current docket so that hearings may be had without inordinate delay. In this connection the techniques of the National Labor Relations Board might be studied with a view to determining whether its exemption practices, see Guss v. Utah Labor Relations Board, 353 U. S. 1, 3-4 (1957), might be helpful in the solution of the Commission’s problems.

Reversed.

Mr. Justice Harlan,

whom

Mr. Justice Stewart joins, dissenting.

While the result reached by the Court may be thought desirable, I can find no justification for it either in the Natural Gas Act or in any of the prior decisions of this Court. The matter is one for Congress. I would affirm the judgments below substantially for the reasons given by Judge Brown in his convincing opinion for the Court of Appeals. 306 F. 2d 334.

       Section 7 (c), 52 Stat. 824, as amended, 56 Stat. 83, 15 U. S. C. §717f (c), provides:
      “(c) No natural-gas company or person which will be a natural-gas company upon completion of any proposed construction or extension shall engage in the transportation or sale of natural gas, subject to the jurisdiction of the Commission, or undertake the construction or extension of any facilities therefor, or acquire or operate any such facilities or extensions thereof, unless there is in force with respect to such natural-gas company a certificate of public convenience and necessity issued by the Commission authorizing such acts or operations: Provided, however, That if any such natural-gas company or predecessor in interest was bona fide engaged in transportation or sale of natural gas, subject to the jurisdiction of the Commission, on . . . [February 7, 1942], over the route or routes or within the area for which application is made and has so operated since that time, the Commission shall issue such certificate without requiring further proof that public convenience and necessity will be served by such operation, and .without further proceedings, if application for such certificate'is made to the Commission within ninety days after . . . [February 7, 1942]. Pending the determination of any such application, the continuance of such operation shall be lawful.
      “In all other cases the Commission shall set the matter for hearing and shall give such reasonable notice of the hearing thereon to all interested persons as in its judgment may be necessary under rules and regulations to be prescribed by the Commission; and the application shall be decided in accordance with the procedure provided in subsection (e) of this section and such certificate shall be issued or denied accordingly: Provided, however, That the Commission may issue a temporary certificate in cases of emergency, to assure maintenance of adequate service or to serve particular customers, without notice or hearing, pending the determination of an application for a certificate, and may by regulation exempt from the requirements of this section temporary acts or operations for which the issuance of a certificate will not be required in the public interest.”
      Section 7 (e), 52 Stat. 824, as amended, 56 Stat. 84, 15 U. S. C. § 717f (e), provides:
      “(e) Except in the cases governed by the provisos contained in subsection (c) of this section, a certificate shall be issued to any qualified applicant therefor, authorizing the whole or any part of the operation, sale, service, construction, extension, or acquisition covered by the application, if it is found that the applicant is able and willing properly to do the acts and to perform the service proposed and to conform to the provisions of the Act and the requirements, rules, and regulations of the Commission thereunder, and that the proposed service, sale, operation, construction, extension, or acquisition, to the extent authorized by the certificate, is or will be required by the present or future public convenience and necessity; otherwise such application shall be denied. The Commission shall have the power to attach to the issuance of the certificate and to the exercise of the rights granted thereunder such reasonable terms and conditions as the public convenience and necessity may require.”

       The Commission did have authority with reference to the entry of a natural gas company into a competitive market but not into new and unserviced markets.

       See, e. g., Florida Economic Advisory Council v. Federal Power Comm’n, 102 U. S. App. D. C. 152, 251 F. 2d 643, cert. denied, 356 U. S. 959; Northern Natural Gas Co., 22 F. P. C. 164, 174-175, 180, aff’d sub nom. Minneapolis Gas Co. v. Federal Power Comm’n, 108 U. S. App. D. C. 36, 278 F. 2d 870, cert. denied, 364 U. S. 891 (certificate conditioned upon removal of clauses permitting cancellation depending on price relationship of gas and competitive fuels in gas purchase contracts upon which feasibility of pipeline project depended); Transwestern Pipeline Co., 22 F. P. C. 391, 394-395, modified on rehearing, 22 F. P. C. 542 (minimum bill provisions of proposed tariff required to be modified); Panhandle Eastern Pipe Line Co., 10 F. P. C. 185 (conditions requiring inclusion of interruptible rate schedules in tariffs); Trans-Continental Gas Pipe Line Co., 7 F. P. C. 24, 38-40 (commencement of service conditioned upon filing of new tariff satisfactory to Commission because of disapproval of certain terms of service); Alabama-Tennessee Natural Gas Co., 7 F. P. C. 257 (commencement of service conditioned upon filing of tariff satisfactory to Commission).