author: Per Curiam.

text:
    UTAH v. UNITED STATES.
    No. 31,
    Orig.
    Decided March 3, 1969.

      Vernon B. Romney, Attorney General of Utah, Robert B. Hansen, Deputy Attorney General, and Dallin W. Jensen, Assistant Attorney General, for plaintiff.

      Solicitor General Griswold, Assistant Attorney General Martz, Louis F. Claiborne, David R. Warner, and Martin Green for the United States.

      L. M. McBride, Frank A. Wollaeger, Myer Feldman, and Martin Jacobs for Morton International, Inc.

      George E. Boss, Raymond T. Senior, Ciaron C. Spencer, and Robert D. Larsen for Great Salt Lake Minerals & Chemicals Corp.
   Per Curiam.

We are called upon to deal with exceptions filed by Morton International, Inc., which protests the decision by our Special Master, Senior Circuit Judge J. Cullen Ganey, denying it leave to intervene as a party defendant in this original action. While we affirm the Master’s decision, we do so for reasons which are somewhat different from those advanced in the Master’s Report. Consequently, it will be necessary to describe the nature of the underlying controversy before the basis for our disposition of this matter will become clear.

This case arises out of a long-standing dispute between the United States and Utah over the ownership of the Great Salt Lake. The importance and difficulty of the controversy is magnified by the fact that, over the course of years, the lake has proceeded to shrink in size, laying bare some 600,000 acres of land which had formerly been a part of the lakebed (the so-called “relicted” lands). In 1966, Congress moved to resolve the controversy by passing a special Act, 80 Stat. 192, as amended, 80 Stat. 349, which both authorized the Secretary of the Interior to issue a quitclaim deed to the State for the entire federal interest in the lake properties and provided a mechanism by which the fair value of the federal interest could be ascertained. In consideration of the Secretary’s deed, Utah was obliged either to pay the Federal Government an amount fixed by the Secretary or bring a lawsuit in this Court so that the extent of the federal claim could be judicially determined.

Utah and the United States, however, are not alone in advancing claims to the still submerged and now-relicted portions of the lake. Morton also claims part of the property, and seeks to intervene to quiet its title. Our Special Master’s Report carefully sets out the nature of the competing claims of the two sovereigns and the private landlord:

“1. The State of Utah claims that on January 4, 1896, the date it was admitted to the Union, the Great Salt Lake was a navigable body of water. On the basis of this fact and the 'equal footing doctrine,’ it asserts that it is the owner of the Lake’s bed as delineated and determined by the official surveyed meander line and that the land (some 600,000 acres) left exposed by the recession of the Lake between the water’s edge and the meander line, known as 'public domain reliction,’ is part of that bed. . . .
"2. The United States claims, excluding those exposed lands lakeward from the upland transferred to patentees, title to a substantial portion (some 325,574 acres) of the exposed lands (known as ‘public domain reliction’ lands) claimed by Utah as part of the Lake’s bed. The basis for this claim is that it was the original owner of the uplands and for that reason it is entitled to the exposed lands under the common-law doctrine of reliction.
“3. Private vendees or patentees of the Lake’s uplands whose interest can be traced to the United States claim all the land lakeward fronting such uplands. Their claims do not stop at the water’s edge but continue to the thread of the Lake. They contend that the patents impliedly passed title to the relicted land to the owner of the adjoining uplands. The combined area of the exposed land claimed by this group amounts to approximately 275,000 acres. Morton is a good example of one of this group.
“4. In addition, however, the United States also claims the relicted land fronting the uplands of some of the patentees (or those claiming through them) under the so-called Basart doctrine. The total area claimed under this doctrine is approximately 108,780 acres, and is referred to as 'public land reliction under Basart.’ These private owners [including Morton], of course, disagree that the Basart doctrine is applicable to these lands.” Master’s Report 6-8.

The Special Master found that the claim raised by-Morton and the claims raised in the “main action have a question of law or fact in common” and that, consequently, “a district judge would exercise his discretion and permit [Morton] to intervene in the action.” Report 39. The Special Master, however, refused to take this step only because he found that the State of Utah had not waived its sovereign immunity as to Morton’s suit.

Upon careful consideration, we do not find it necessary to reach the ground adopted in the Report. For we have concluded that a Stipulation entered into between the United States and Utah, which was presented to the Master, has so limited the issues before this Court that the presence of Morton and similar property owners is neither necessary nor appropriate. Hence, in the exercise of our discretion, we find that the interests of justice and sound judicial administration will best be served if Morton’s motion is denied.

The entry of the Stipulation significantly changes the nature of the problem before us. If the Stipulation had never been filed, it is clear that Utah could have attempted to defeat the federal claim to the Basart lands by proving that private landlords like Morton had the best title to them. In such a situation, Morton’s right to intervene would have had a substantial basis. For if Utah sought to invoke Morton’s title to avoid payment to the United States, it would seem fairest to permit Morton to speak for itself. The Stipulation makes it clear, however, that Utah will not attempt to defeat the United States’ claim to the Basart lands by proving that the private landowners have the best title to this acreage. In other words, if Utah does not prove that it owns the lake properties, it has agreed to pay the United States regardless of the other clouds on the federal claim.

On its side, the United States has also taken steps to remove the Basart question from this lawsuit by means of the Stipulation. It has agreed that it will not demand payment for its Basart claims, if the Court finds that its claims to the other disputed acreage have no merit. Consequently, it will be unnecessary to consider whether the United States or the private landowners have title to the Basart lands in order to determine whether the State must pay fair value to the United States in consideration for the Secretary’s quitclaim deed. Thus, if the Stipulation is valid, the substantial need for Morton’s presence no longer exists.

Morton, however, attacks the validity of the Stipulation agreed upon by the two sovereigns. While it does not deny that the parties to an ordinary lawsuit may limit the issues they will tender to the Court for decision, Morton points out that this is no ordinary lawsuit, but one whose nature is defined by the special Act of Congress, supra, in which the United States waived its immunity in this litigation. Morton argues that the Stipulation has transformed the suit in a way that is contrary to Congress’ intention, and that consequently this Court should not accept the parties’ attempt to narrow the issues.

We cannot, however, accept the premise upon which Morton’s argument is based. We find that the Stipulation does not transform the action in a way which Congress would have disapproved. The structure of the relevant Act indicates decisively that Congress did not anticipate that this action would necessarily lead to an adjudication of the private parties’ claims to the Basart lands. Section 5 of the Act gave Utah the right to pay over an amount of money determined by the Secretary of the Interior after the Secretary had given “consideration to all factors he deems pertinent to an equitable resolution of the question of the proper consideration to be paid by the State of Utah . . . .” If the State had taken this option, the private landowners would never of course have had an opportunity to invoke the original jurisdiction of this Court since Utah would never have filed its complaint. Consequently, it is difficult to believe that the will of Congress will be frustrated if the issues tendered to this Court by the sovereigns are structured so that we may resolve their dispute without considering the additional claims advanced by the private parties.

Similarly, we do not find any merit in Morton’s challenge to that part of the Stipulation in which the United States has promised not to demand payment for its Basart claims, if its other claims are not vindicated. Morton argues that the Solicitor General is without authority to give away potentially valuable property when Congress has expressly required that the Nation receive fair value. But this argument ignores the fact that the Solicitor General has indicated in his brief that he believes he can advance no colorable argument which could conceivably vindicate the Federal Government’s Basart interest if the Government’s right to the other disputed property is not upheld. This being so, the Solicitor General, acting under his broad authority to conduct the Federal Government’s litigation in this Court, 28 U. S. C. § 518 (1964 ed., Supp. III), was surely entitled to remove the issue from the case.

Finally, Morton claims that under Rule 19 (a) of the Federal Rules of Civil Procedure it should be permitted to intervene because its absence will “leave [one] of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.” Morton contends that Utah may be obliged to pay the United States for the Basart claims in this present action, only to have another Court later find that the private landowners in fact have the best title, requiring Utah to pay again if it wishes to control the Basart lands. But Utah has never favored Morton’s motion to intervene, despite the fact that the company’s absence here may mean that the State may ultimately be obliged to pay for the lands a second time. Indeed, Utah has consistently opposed Morton’s motion. Since the Federal Rules are a guide to the conduct of original actions in this Court only “where their application is appropriate,” Rule 9 (2) of the Rules of Court, and since our original jurisdiction should be invoked sparingly, we hold that the State of Utah may properly waive the protection of Rule 19 here.

While we can perceive no compelling reason requiring the presence of Morton in this lawsuit, there are substantial reasons for denying intervention. If Morton is admitted, fairness would require the admission of any of the other 120 private landowners who wish to quiet their title to portions of the relicted lands, greatly increasing the complexity of this litigation. Moreover, if any private landlord who is a citizen of Utah should seek to intervene, we would be required to decide the difficult constitutional question as to whether this Court may retain its original jurisdiction over an action in which complete diversity of citizenship no longer exists between the contesting parties.

With the issues limited by the Stipulation, we find, as did the Special Master, that the Solicitor General may be relied upon to represent the limited interests of the private landlords in this case. While Morton doubtless wishes to have us settle its additional claims, we decline to permit intervention for the sole purpose of permitting a private party to introduce new issues which have not been raised by the sovereigns directly concerned. We are thus constrained to require the company to seek another forum which may, with greater efficiency, hear and decide its claims, together with any defenses the sovereign concerned wishes to interpose.

We also agree with the Special Master that “it is equitable and in good conscience to proceed to adjudicate the controversy between the State of Utah and the United States” in Morton’s absence, Report 47, and we hereby authorize him to proceed to the merits.

The Report of the Special Master will be placed on file and his determination denying intervention to Morton International, Inc., is approved.

r, . , , /£ iS so ordered.

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

         Uplands are lots above and adjacent to the meander line. (This is Master Ganey’s footnote. The Master’s other footnotes have been omitted.)

       The United States also advances a claim, not here detailed by the Master, to certain portions of the still submerged lands as well as the brines and minerals in the lake.

       While in the original Stipulation, the two sovereigns sought to defer decision as to which of them owned the still submerged lands under the lake, as well as the lake’s brines and minerals, the Special Master ruled that the United States must contest the State’s claims to these resources in the present action. Neither the State nor the Federal Government has contested this aspect of the Master’s ruling.

       Indeed, § 2 of the Act contains a proviso which declares that “the provisions of this Act shall not affect (1) any valid existing rights or interests, if any, of any person, partnership, association, corporation, or other nongovernmental entity, in or to any of the lands within and below said meander line . . . (Emphasis supplied.) This language suggests that Congress expected that the interests of the private parties would not be adjudicated here.

       Thus, we need not determine the conditions under which Rule 19 (a) may properly be waived by the party it protects in an ordinary litigation in the district courts.

       Before the United States and Utah entered their Stipulation, the Great Salt Lake Minerals & Chemical Corp. sought to intervene in this action. While the Master denied this motion as well as Morton’s, M&C has chosen to acquiesce in the Master’s decision so long as the Stipulation is approved. Thus, no further action on this motion is required in the light of our disposition here.


source: Caselaw Access Project

license: Public Domain

text:
    BOKULICH et al. v. JURY COMMISSION OF GREENE COUNTY et al.
    No. 1255,
    Misc.
    Decided March 3, 1969.

      Morton Stavis, Arthur Kinoy, William M. Kunstler, Donald A. Jelinek, and Alvin Bronstein for appellants.

      MacDonald Gallion, Attorney General of Alabama, . and Robert P. Bradley, Assistant Attorney General, for appellees.
   Per Curiam.

The motion of the appellants for leave to proceed in forma pauperis is granted.

Appellants, civil rights workers, were arrested on charges of grand larceny. Together with other persons who are not parties to this appeal, the appellants were plaintiffs in this suit before a three-judge court. The complaint charged that Negroes had been systematically excluded from the grand and petit juries in Greene County and that the all-white county jury commission was unconstitutionally constituted. It sought declaratory and injunctive relief against continued discrimination in the selection of juries, against statutes that allegedly authorized the discrimination, and against the State Governor’s practice of selecting only white jury commissioners for Greene County. The appellants sought also an injunction to prevent the grand jury of Greene County from considering the criminal charges against them.

The District Court held that Negroes had been systematically and purposely excluded from the jury rolls of Greene County, Alabama, and that this discriminatory exclusion violated the appellants’ rights to equal protection and due process. It issued an injunction against discriminatory exclusion of Negroes from jury service in Greene County, and it ordered the appellees to take prompt action to compile a jury list on a nondiscriminatory basis. The court refused, however, to prevent the grand jury from considering the criminal charges against the appellants. This appeal presents only the issue whether the District Court erred in so ruling.

We hold that the District Court did not abuse its discretion. The District Court was warranted in assuming that the constitutional defects of which the appellants complained might be promptly remedied by compliance with its order that juries be reconstituted on a nondiscriminatory basis. If they were not, and if the appellants were in fact indicted, the appellants could raise any objection to the composition of the jury as a defense to their prosecutions. In these circumstances the court could properly conclude that this was not one of “those exceptional cases which call for the interposition of a court of equity to prevent irreparable injury which is clear and imminent.” Douglas v. Jeannette, 319 U. S. 157, 163 (1943). Accordingly, we affirm that part of the District Court’s judgment that denied an injunction preventing the Greene County grand jury from considering criminal charges against the appellants.

       In No. 908 the plaintiffs in the court below other than the appellants in the present case appeal from the District Court’s determinations that the challenged Alabama statutes are not unconstitutional and that the Greene County jury commission was not proved to have been illegally constituted. We have today noted probable jurisdiction of that appeal. 393 U. S. 1115.

       We do not reach the issue whether 28 U. S. C. §2283 would bar the injunction sought even if irreparable injury had been shown. Cf. Dombrowski v. Pfister, 380 U. S. 479, 484, n. 2 (1965).


text:
    BLACK UNITY LEAGUE OF KENTUCKY et al. v. MILLER et al.
    No. 892.
    Decided March 3, 1969.

      William M. Kunstler, Arthur Kinoy, Robert Allen Sedler, and Morton Stavis for appellants.

      W. Scott Miller, Jr., pro se, and for other appellees.
   Per Curiam.

Appellant organizations brought this suit for injunc-tive and declaratory relief against investigations which appellees, members of the Kentucky Un-American Activities Committee, were allegedly threatening to conduct. They contended that the investigations and accompanying contempt prosecutions would violate various rights, primarily those under the First and Fourteenth Amendments. They did not allege that any of their officers or members had been called as witnesses, or that any subpoenas had been issued, or that any criminal prosecutions had been begun. The allegations of harassment were entirely conclusory. Appellees moved to dismiss, and appellants failed to respond, as was required by local court rules. These rules also stated that “[fjailure to respond may be good grounds for sustaining the motion.” D. C. W. D. Ky. Rule 5 (a). We hold that in this procedural context the trial court could take appellants’ conclusory allegations as insubstantial and could dismiss the complaint for failure to allege sufficient irreparable injury to justify federal intervention at this early stage. For this reason, the motion to affirm is granted and the judgment is affirmed.

Mr. Justice Douglas dissents.


text:
    HOLDEN et al. v. ARNEBERGH, CITY ATTORNEY OF LOS ANGELES, et al.
    No. 945.
    Decided March 3, 1969.

      Burton Marks for appellants.

      Roger Arnebergh, pro se, and Robert B. Burns for appellees.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed, it appearing that the judgment below rests upon an adequate state ground.


author: Mr. Justice Brennan

text:
    GOLDEN, ACTING DISTRICT ATTORNEY OF KINGS COUNTY v. ZWICKLER.
    No. 370.
    Argued January 16, 1969.
    Decided March 4, 1969.

      Samuel A. Hirshowitz, First Assistant Attorney General of New York, argued the cause for appellant. With him on the brief were Louis J. Lefkowitz, Attorney General, and Brenda Soloff, Assistant Attorney General.

      Emanuel Redfield argued the cause and filed a brief for appellee.

      Joseph B. Robison and Beverly Coleman filed a brief for the American Jewish Congress, as amicus curiae, urging affirmance.
   Mr. Justice Brennan

delivered the opinion of the Court.

This case was here before as Zwickler v. Koota, 389 U. S. 241 (1967). We there held that the three-judge District Court for the Eastern District of New York erred in abstaining from deciding whether Zwickler, appellee in the instant case, was entitled to a declaratory judgment respecting the constitutionality of New York Penal Law § 781-b, now New York Election Law § 457, and we remanded to the District Court for a determination of that question. Section 781-b made it a crime to distribute anonymous literature in connection with an election campaign. Zwickler had been convicted of violating this provision by distributing anonymous handbills in connection with the 1964 congressional election. That conviction was reversed, on state law grounds, by the New York Supreme Court, Appellate Term. The New York Court of Appeals affirmed in 1965 and filed a memorandum which stated that constitutional questions had not been reached. 16 N. Y. 2d 1069, 213 N. E. 2d 467. A few months thereafter, on April 22, 1966, Zwickler brought this suit.

The complaint sets forth the facts regarding the prosecution and its termination. A Congressman standing for re-election in 1964 was criticized in the anonymous handbill for opposing two amendments to the 1964 Foreign Aid bill. The complaint alleged that the Congressman “will become a candidate in 1966 for reelection . . . and has been a political figure and public official for many years,” and that Zwickler “desires and intends to distribute ... at the place where he had previously done so and at various places in said [Kings] County, the anonymous leaflet herein described . . . and similar anonymous leaflets ... at any time during the election campaign of 1966 and in subsequent election campaigns or in connection with any election of party officials, nomination for public office and party position that may occur subsequent to said election campaign of 1966.”

It was disclosed on the argument of Zwickler v. Koota in this Court that the Congressman had left the House of Representatives for a place on the Supreme Court of New York. We deemed this development relevant to the question whether the prerequisites for the issuance of a declaratory judgment were present. We noted, however, that, probably because of the decision to abstain, the parties had not addressed themselves to, and the District Court had not adjudicated, that question. 389 U. S., at 244, n. 3. Therefore, we directed that on the remand “appellant [Zwickler] must establish the elements governing the issuance of a declaratory judgment.” Id., at 252, n. 15; see also id., at 252-253, n. 16.

The District Court hearing on the remand was limited largely to the oral argument of counsel, and no testimony was taken concerning the existence of the elements governing the issuance of a declaratory judgment. The three-judge court held that the prerequisites of a declaratory judgment had been established by the facts alleged in the complaint, and that the fact that the Congressman who was the original target of the handbills would not again stand for re-election did not affect the question. The court said:

“The attempt of defendant to moot the controversy and thus to abort a declaration of constitutional invalidity by citing the circumstance that the Congressman concerning whom the Zwickler handbill was published has since become a New York State Supreme Court Justice must fail. When this action was initiated the controversy was genuine, substantial and immediate, even though the date of the election to which the literature was pertinent had already passed.
“. . . The fortuitous circumstance that the candidate in relation to whose bid for office the anonymous handbill was circulated had, while vindication inched tediously forward, removed himself from the role of target of the 1964 handbill does not moot the plaintiff’s further and far broader right to a general adjudication of unconstitutionality his complaint prays for. We see no reason to question Zwickler’s assertion that the challenged statute currently impinges upon his freedom of speech by deterring him from again distributing anonymous handbills. His own interest as well as that of others who would with like anonymity practise free speech in a political environment persuade us to the justice of his plea.” 290 F. Supp. 244, 248, 249 (1968).

We noted probable jurisdiction sub nom. Koota v. Zwickler, 393 U. S. 818 (1968). We reverse.

The District Court erred in holding that Zwickler was entitled to declaratory relief if the elements essential to that relief existed “[wjhen this action was initiated.” The proper inquiry was whether a “controversy” requisite to relief under the Declaratory Judgment Act existed at the time of the hearing on the remand. We now undertake that inquiry.

“[TJhe federal courts established pursuant to Article III of the Constitution do not render advisory opinions. For adjudication of constitutional issues, ‘concrete legal issues, presented in actual cases, not abstractions/ are requisite. This is as true of declaratory judgments as any other field.” United Public Workers of America v. Mitchell, 330 U. S. 75, 89 (1947). “The difference between an abstract question and a ‘controversy’ contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U. S. 270, 273 (1941).

We think that under all the circumstances of the case the fact that it was most unlikely that the Congressman would again be a candidate for Congress precluded a finding that there was “sufficient immediacy and reality” here. The allegations of the complaint focus upon the then forthcoming 1966 election when, it was alleged, the Congressman would again stand for re-election. The anonymous handbills which the complaint identified as to be distributed in the 1966 and subsequent elections were the 1964 handbill and “similar anonymous leaflets.” On the record therefore the only supportable conclusion was that Zwickler’s sole concern was literature relating to the Congressman and his record. Since the New York statute’s prohibition of anonymous handbills applies only to handbills directly pertaining to election campaigns, and the prospect was neither real nor immediate of a campaign involving the Congressman, it was wholly conjectural that another occasion might arise when Zwickler might be prosecuted for distributing the handbills referred to in the complaint. His assertion in his brief that the former Congressman can be “a candidate for Congress again” is hardly a substitute for evidence that this is a prospect of “immediacy and reality.” Thus the record is in sharp contrast to that in Evers v. Dwyer, 358 U. S. 202 (1958), relied upon by the District Court.

It was not enough to say, as did the District Court, that nevertheless Zwickler has a “further and far broader right to a general adjudication of unconstitutionality . . . [in] [h]is own interest as well as that of others who would with like anonymity practise free speech in a political environment . . . The constitutional question, First Amendment or otherwise, must be presented in the context of a specific live grievance. In United Public Workers of America v. Mitchell, supra, at 89-90, we said:

“The power of courts, and ultimately of this Court, to pass upon the constitutionality of acts of Congress arises only when the interests of litigants require the use of this judicial authority for their protection against actual interference. A hypothetical threat is not enough.”

The same is true of the power to pass upon the constitutionality of state statutes. No federal court, whether this Court or a district court, has “jurisdiction to pronounce any statute, either of a State or of the United States, void, because irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies.” Liverpool, N. Y. & P. S. S. Co. v. Commissioners, 113 U. S. 33, 39 (1885). (Emphasis added.) See also United States v. Raines, 362 U. S. 17, 21 (1960). The express limitation of the Declaratory Judgment Act to cases “of actual controversy” is explicit recognition of this principle.

We conclude that Zwickler did not establish the existence at the time of the hearing on the remand of the elements governing the issuance of a declaratory judgment, and therefore that the District Court should have dismissed his complaint. We accordingly intimate no view upon the correctness of the District Court’s holding as to the constitutionality of the New York statute. The judgment of the District Court is reversed, and the case is remanded with direction to enter a new judgment dismissing the complaint.

It is so ordered.

       Section 781-b, in pertinent part, made it a misdemeanor to “distribute in quantity . . . any handbill' . . . which contains any statement . . . concerning any political party, candidate ... in connection with any election of public officers, party officials . . . without . . . reproducing thereon . . . the name and post-office address of the . . . person ... at whose instance . . . such handbill ... is so . . . distributed ...”

       The text of the 1964 handbill is as follows:
      “REPRESENTATIVE MULTER — EXPLAIN YOUR POSITIONS “AID TO NASSER
      “On September 2, 1964, an amendment was proposed to a foreign aid bill (Public Law 480). In substance, it would have cut off all aid to the United Arab Republic. Congressman Multer spoke at length against the amendment, and in his own words, urged its defeat ‘as earnestly as I can.’ He stated that his position was based on ‘humanitarian instinct.’ (Congressional Record 20792.)
      “In this respect, the following should be noted
      “(a) Congressman Multer’s stand permits the diversion of funds by Dictator Nasser to his armaments buildup.
      “(b) The United Arab Republic is also a recipient of aid from Communist Russia.
      “(c) Egypt is now employing the technical skills of scientists, formerly under the employ of the Nazis.
      “(d) Congressman Multer debated against the amendment on the eve of the summit conference held in Cairo by 13 Arab States which are threatening the peace of the Near East and the State of Israel in particular.
      “SOVIET ANTI-SEMITISM
      “The 1964 Foreign Aid bill was passed in the United States Senate with an amendment sponsored by Senator Abraham Ribicoff (D., Conn.) that strongly condemned the anti-Semitic practices of the Soviet Union. When this issue was brought to the House-Senate conferees, a much more general statement decrying all types of religious bigotry was adopted.
      “Representative Multer praised this ‘watered down’ measure on the House floor, and stated:
      “ ‘While the Senate version did point the finger directly at Soviet Russia, the version as finally adopted, I think, is much the better one.
      “ ‘I believe, instead of pointing the finger at the culprit now before the bar of world public opinion where it is being so severely condemned, it is much better that this Congress go on record as it is doing now, against religious persecution wherever it may raise its ugly head.’ (Congressional Record 22850.)
      “WHY MR. MULTER, WHY? ? ? ? ?”

       The Declaratory Judgment Act, 28 U. S. C. §2201, expressly provides: “In a case of actual controversy within its jurisdiction . . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” (Emphasis added.)

       The former Congressman’s term of office as a State Supreme Court Justice is 14 years.

       The allegation of the complaint that Zwickler might distribute anonymous handbills relating to “party officials” does not indicate otherwise. The Congressman held an elective party position as a district leader. See 290 F. Supp., at 248.


author: Mr. Chief Justice Warren Mr. Justice Douglas, Mr. Justice Black, Mr. Justice Harlan,

text:
    GREGORY et al. v. CITY OF CHICAGO.
    No. 60.
    Argued December 10, 1968.
    Decided March 10, 1969.

      Marshall Patner argued the cause for petitioners. With him on the briefs was Paul E. Goldstein.

      Raymond F. Simon argued the cause for respondent. With him on the brief were Marvin E. Aspen and Howard C. Goldman.

   Mr. Chief Justice Warren

delivered the opinion of the Court.

This is a simple case. Petitioners, accompanied by Chicago police and an assistant city attorney, marched in a peaceful and orderly procession from city hall to the mayor’s residence to press their claims for desegregation of the public schools. Having promised to cease singing at 8:30 p. m., the marchers did so. Although petitioners and the other demonstrators continued to march in a completely lawful fashion, the onlookers became unruly as the number of bystanders increased. Chicago police, to prevent what they regarded as an impending civil disorder, demanded that the demonstrators, upon pain of arrest, disperse. When this command was not obeyed, petitioners were arrested for disorderly conduct.

Petitioners’ march, if peaceful and orderly, falls well within the sphere of conduct protected by the First Amendment. See Shuttlesworth v. City of Birmingham, post, p. 147; Brown v. Louisiana, 383 U. S. 131, 141-142 (1966) (prevailing opinion of Mr. Justice Fortas) ; Henry v. City of Rock Hill, 376 U. S. 376 (1964); Fields v. South Carolina, 375 U. S. 44 (1963), reversing 240 S. C. 366, 126 S. E. 2d 6 (1962). There is no evidence in this record that petitioners’ conduct was disorderly. Therefore, under the principle first established in Thompson v. City of Louisville, 362 U. S. 199 (1960), convictions so totally devoid of evidentiary support violate due process.

The opinion of the Supreme Court of Illinois suggests that petitioners were convicted not for the manner in which they conducted their march but rather for their refusal to disperse when requested to do so by Chicago police. See 39 Ill. 2d 47, 60, 233 N. E. 2d 422, 429 (1968). However reasonable the police request may have been and however laudable the police motives, petitioners were charged and convicted for holding a demonstration, not for a refusal to obey a police officer. As we said in Garner v. Louisiana, 368 U. S. 157, 164 (1961): “[I]t is as much a denial of due process to send an accused to prison following conviction for a charge that was never made as it is to convict him upon a charge for which there is no evidence to support that conviction.” See also In re Oliver, 333 U. S. 257, 273 (1948).

Finally, since the trial judge’s charge permitted the jury to convict for acts clearly entitled to First Amendment protection, Stromberg v. California, 283 U. S. 359 (1931), independently requires reversal of these convictions.

The judgments are

Reversed.

Mr. Justice Douglas,

while joining the concurring opinion of Mr. Justice Black,

also joins this opinion.

Mr. Justice Stewart and Mr. Justice White concur in the judgment of the Court and join its opinion insofar as it holds that under the principle established by Stromberg v. California, 283 U. S. 359, the petitioners’ convictions cannot stand.

Mr. Justice Black,

with whom Mr. Justice Douglas joins,

concurring.

This I think is a highly important case which requires more detailed consideration than the Court’s opinion gives it. It in a way tests the ability of the United States to keep the promises its Constitution makes to the people of the Nation. Among those promises appearing in the Preamble to the Constitution are the statements that the people of the United States ordained this basic charter “in Order to form a more perfect Union, establish Justice, insure domestic Tran-quillity . . . and secure the Blessings of Liberty to ourselves and our Posterity . . . .” Shortly after the original Constitution was adopted, again undoubtedly in an attempt to “secure the Blessings of Liberty,” the Bill of Rights was added to the Constitution, in which the First Amendment, later made applicable to the States by the Fourteenth Amendment, provides that: “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

In 1954 our Court held that laws segregating people on the basis of race or color in the public schools unconstitutionally denied Negroes equal protection of the laws. Negroes, and many others who sympathized with them, cooperatively undertook to speed up desegregation. These groups adopted plans under which they marched on the streets carrying placards, chanting, and singing songs, all designed to publicize their grievances and to petition the various units of government, state and national, for a redress of these grievances. Their activities along these lines quite obviously aroused highly emotional feelings both on their part and on the part of others who opposed the changes in local laws and customs which the “picketers” and “demonstrators” advocated. Agitation between groups brought about sharp conflicts and clashes, threats, fights, riots, and near-riots. This Court, to be sure, has had its difficulties and sharp differences of opinion in deciding the precise boundaries dividing what is constitutionally permissible and impermissible in this field. There have also been sharp disputes over whether the Court can hold laws unconstitutional because the Court deems them to be “unreasonable,” “arbitrary,” or contrary to fundamental standards of ethics, morals, or conscience. Fortunately, however, these differences need not concern us here. For while we have pointed out in many cases that the States and their subordinate units do have constitutional power to regulate picketing, demonstrating, and parading by statutes and ordinances narrowly drawn so as not to abridge the rights of speech, press, assembly, or petition, neither Chicago nor Illinois at the time these petitioners were demonstrating had passed any such narrowly drawn laws.

The facts upon which these arrests and convictions for disorderly conduct occurred were these.

Petitioner Gregory and his group had become dissatisfied because Benjamin Willis, Superintendent of Chicago’s public school system, was not moving speedily enough to desegregate the public schools. While Mayor Daley did not appear to have legal authority to remove Dr. Willis, the group evidently believed the Mayor could cause him to be removed if he wanted to do so, and their prodding was therefore directed at the Mayor as well as against Willis. The group march began near the Chicago Loop District at 4:30 p. m. and ended five miles away in the neighborhood of Daley’s home. A lieutenant of police, four police sergeants, and about forty policemen met Gregory at the gathering place in Grant Park. There Gregory addressed the marchers, saying:

“First we will go over to the snake pit [city hall]. When we leave there, we will go out to the snake’s house [the mayor’s home]. Then, we will continue to go out to Mayor Daley’s home until he fires Ben Willis [Superintendent of Schools].”

The demonstrators marched to the city hall, and then they marched to the Mayor’s home about five miles away, arriving at about 8 p. m. The demonstrators were accompanied by the police and by the Assistant City Attorney from the park to the Mayor’s home. When they reached this neighborhood, the demonstrators began marching around and around near the Mayor’s home. Meanwhile the crowd of spectators from the neighborhood kept increasing, and its language and conduct became rougher and tougher. The events leading up to the arrest of the demonstrators are set out in detail in the opinion of the Illinois Supreme Court, and I agree fully with that court’s description of these events, which I have reprinted as an appendix to this opinion. This episode finally came to a conclusion at about 9:30 p. m. Fearful that the threatening crowd of onlookers could no longer be contained, the police asked Gregory and his marchers to leave the area. When they refused, they were arrested and charged with violation of Chicago’s disorderly conduct ordinance, which provides as follows:

“All persons who shall make, aid, countenance, or assist in making any improper noise, riot, disturbance, breach of the peace, or diversion tending to a breach of the peace, within the limits of the city; all persons who shall collect in bodies or crowds for unlawful purposes, or for any purpose, to the annoyance or disturbance of other persons; . . . shall be deemed guilty of disorderly conduct, and upon conviction thereof, shall be severally fined not less than one dollar nor more than two hundred dollars for each offense.” Municipal Code of Chicago, § 193-1.

I agree with the Illinois Supreme Court that the “record shows a determined effort by the police to allow the marchers to peacefully demonstrate and at the same time maintain order.” I also think the record shows that outside of the marching and propagandizing of their views and protests, Gregory and his group while marching did all in their power to maintain order. Indeed, in the face of jeers, insults, and assaults with rocks and eggs, Gregory and his group maintained a decorum that speaks well for their determination simply to tell their side of their grievances and complaints. Even the “snake” and “snake pit” invectives used by Gregory and his demonstrators, unlike some used by their hecklers, remained within the general give-and-take of heated political argument. Thus both police and demonstrators made their best efforts faithfully to discharge their responsibilities as officers and citizens, but they were nevertheless unable to restrain the hostile hecklers within decent and orderly bounds. These facts disclosed by the record point unerringly to one conclusion, namely, that when groups with diametrically opposed, deep-seated views are permitted to air their emotional grievances, side by side, on city streets, tranquility and order cannot be maintained even by the joint efforts of the finest and best officers and of those who desire to be the most law-abiding protestors of their grievances.

It is because of this truth, and a desire both to promote order and to safeguard First Amendment freedoms, that this Court has repeatedly warned States and governmental units that they cannot regulate conduct connected with these freedoms through use of sweeping, dragnet statutes that may, because of vagueness, jeopardize these freedoms. In those cases, however, we have been careful to point out that the Constitution does not bar enactment of laws regulating conduct, even though connected with speech, press, assembly, and petition, if such laws specifically bar only the conduct deemed obnoxious and are carefully and narrowly aimed at that forbidden conduct. The dilemma revealed by this record is a crying example of a need for some such narrowly drawn law. It is not our duty and indeed not within our power to set out and define with precision just what statutes can be lawfully enacted to deal with situations like the one confronted here by police and protestors, both of whom appear to us to have been conscientiously trying to do their duties as they understood them. Plainly, however, no mandate in our Constitution leaves States and governmental units powerless to pass laws to protect the public from the kind of boisterous and threatening conduct that disturbs the tranquility of spots selected by the people either for homes, wherein they can escape the hurly-burly of the outside business and political world, or for public and other buildings that require peace and quiet to carry out their functions, such as courts, libraries, schools, and hospitals.

The disorderly conduct ordinance under which these petitioners were charged and convicted is not, however, a narrowly drawn law, particularly designed to regulate certain kinds of conduct such as marching or picketing or demonstrating along the streets or highways. Nor does it regulate the times or places or manner of carrying on such activities. To the contrary, it might better be described as a meat-ax ordinance, gathering in one comprehensive definition of an offense a number of words which have a multiplicity of meanings, some of which would cover activity specifically protected by the First Amendment. The average person charged with its violation is necessarily left uncertain as to what conduct and attitudes of mind would be enough to convict under it. Who, for example, could possibly foresee what kind of noise or protected speech would be held to be “improper”? That, of course, would depend on sensibilities, nerves, tensions, and on countless other things. As pointed out in Cantwell v. Connecticut, 310 U. S. 296, 308 (1940), common-law breach of peace is at its best a confusing offense that may imperil First Amendment rights. But how infinitely more doubtful and uncertain are the boundaries of an offense including any “diversion tending to a breach of the peace . . .”! Moreover, the ordinance goes on to state that it shall be a crime for persons to “collect in bodies or crowds for unlawful purposes, or for any purpose, to the annoyance or disturbance of other persons . . . .” Such language could authorize conviction simply because the form of the protest displeased some of the onlookers, and of course a conviction on that ground would encroach on First Amendment rights. See Thornhill v. Alabama, 310 U. S. 88 (1940); Edwards v. South Carolina, 372 U. S. 229 (1963); Cox v. Louisiana, 379 U. S. 636 (1965). And it must be remembered that only the tiniest bit of petitioners’ conduct could possibly be thought illegal here — that is, what they did after the policeman’s order to leave the area. The right “peaceably to assemble, and to petition the Government for a redress of grievances” is specifically protected by the First Amendment. For the entire five-mile march, the walking by petitioners in a group, the language, and the chants and songs were all treated by the city’s assistant attorney and its specially detailed policemen as lawful, not lawless, conduct.

The so-called “diversion tending to a breach of the peace” here was limited entirely and exclusively to the fact that when the policeman in charge of the special police detail concluded that the hecklers observing the march were dangerously close to rioting and that the demonstrators and others were likely to be engulfed in that riot, he ordered Gregory and his demonstrators to leave, and Gregory — standing on what he deemed to be his constitutional rights — refused to do so. The “diversion” complained of on the part of Gregory and the other marchers was not any noise they made or annoyance or disturbance of “other persons” they had inflicted. Their guilt of “disorderly conduct” therefore turns out to be their refusal to obey instanter an individual policeman’s command to leave the area of the Mayor’s home. Since neither the city council nor the state legislature had enacted a narrowly drawn statute forbidding disruptive picketing or demonstrating in a residential neighborhood, the conduct involved here could become “disorderly” only if the policeman’s command was a law which the petitioners were bound to obey at their peril. But under our democratic system of government, lawmaking is not entrusted to the moment-to-moment judgment of the policeman on his beat. Laws, that is valid laws, are to be made by representatives chosen to make laws for the future, not by police officers whose duty is to enforce laws already enacted and to make arrests only for conduct already made criminal. One of our proudest boasts is that no man can be convicted of crime for conduct, innocent when engaged in, that is later made criminal. See, e. g., Chambers v. Florida, 309 U. S. 227, 236 (1940). To let a policeman’s command become equivalent to a criminal statute comes dangerously near making our government one of men rather than of laws. See Cox v. Louisiana, 379 U. S. 559, 579 (1965) (separate opinion). There are ample ways to protect the domestic tranquility without subjecting First Amendment freedoms to such a clumsy and unwieldy weapon.

The City of Chicago, recognizing the serious First Amendment problems raised by the disorderly conduct ordinance as it is written, argues that these convictions should nevertheless be affirmed in light of the narrowing construction placed on the ordinance by the Illinois Supreme Court in this case. That court held that the ordinance

“does not authorize the police to stop a peaceful demonstration merely because a hostile crowd may not agree with the views of the demonstrators. It is only where there is an imminent threat of violence, the police have made all reasonable efforts to protect the demonstrators, the police have requested that the demonstration be stopped and explained the request, if there be time, and there is a refusal of the police request, that an arrest for an otherwise lawful demonstration may be made.” 39 Ill. 2d 47, 60, 233 N. E. 2d 422, 429.

This interpretation of the ordinance is, of course, binding on this Court, and the construction of the Illinois Supreme Court is as authoritative as if this limitation were written into the ordinance itself. But this cannot be the end of our problem. The infringement of First Amendment rights will not be cured if the narrowing construction is so unforeseeable that men of common intelligence could not have realized the law’s limited scope at the only relevant time, when their acts were committed, cf. Lanzetta v. New Jersey, 306 U. S. 451, 456-457 (1939), or if the law remains excessively sweeping even narrowed, e. g., Winters v. New York, 333 U. S. 507 (1948). Petitioners particularly press the Court to dispose of the case on this latter ground. They raise troublesome questions concerning the extent to which, even under the narrowed construction, guilt still depends on the mere refusal to obey a policeman’s order. And they suggest that the scope of the police obligation to attempt first to deal with the hostile audience is still not made sufficiently clear.

It is not necessary for the Court to resolve such issues in the present case, however, because the Chicago ordinance, as applied here, infringed on First Amendment rights for an even more fundamental reason. Whatever the validity of the Illinois Supreme Court’s construction, this was simply not the theory on which these petitioners were convicted. In explaining the elements of the offense to the jury, the trial judge merely read the language of the ordinance. The jury was not asked to find whether, as the Illinois Supreme Court’s construction apparently requires, there was “an imminent threat of violence,” or whether the police had “made all reasonable efforts to protect the demonstrators.” Rather, it was sufficient for the jury to decide that petitioners had made an “improper noise” or a “diversion tending to a breach of the peace,” or had “collect[ed] in bodies or crowds for unlawful purposes, or for any purpose, to the annoyance or disturbance of other persons.”

In fact, far from taking account of the limiting factors stressed by the Illinois Supreme Court, the judge’s charge was based on precisely the opposite theory. The jury was instructed, over petitioners’ objection, that “the fact that persons other than these Defendants may or may not have violated any laws or may or may not have been arrested should not be considered by you in determining the guilt or innocence of these Defendants.” The significance of this instruction in the context of the evidence at trial is of course apparent — the jury was simply told to ignore questions concerning the acts of violence committed by the crowd of onlookers and attempts made by the police to arrest those directly responsible for them. Under these circumstances, the principle established by Stromberg v. California, 283 U. S. 359 (1931), compels us to set aside these convictions. As we explained in Williams v. North Carolina, 317 U. S. 287, 292 (1942):

“That is to say, the verdict of the jury for all we know may have been rendered on [an unconstitutional] ground alone, since it did not specify the basis on which it rested. It therefore follows here as in Stromberg . . . that if one of the grounds for conviction is invalid under the Federal Constitution, the judgment cannot be sustained.”

At the time the petitioners were tried, the Illinois Supreme Court had not yet announced its narrowing construction of the Chicago disorderly conduct ordinance. The trial judge’s instructions supplied the jury only with the unadorned language of the statute. Thus it is entirely possible that the jury convicted the petitioners on the ground that Gregory and the others who demonstrated with him had, in the language of the ordinance, “collect [ed] in bodies or crowds ... to the annoyance or disturbance of other persons,” simply because the form of their protest had displeased some of the onlookers. Since the petitioners could not constitutionally be convicted on this ground, Stromberg compels the reversal of these convictions.

In agreeing to the reversal of these convictions, however, I wish once more to say that I think our Federal Constitution does not render the States powerless to regulate the conduct of demonstrators and picketers, conduct which is more than “speech,” more than “press,” more than “assembly,” and more than “petition,” as those terms are used in the First Amendment. Narrowly drawn statutes regulating the conduct of demonstrators and picketers are not impossible to draft. And narrowly drawn statutes regulating these activities are not impossible to pass if the people who elect their legislators want them passed. Passage of such laws, however, like the passage of all other laws, constitutes in the final analysis a choice of policies by the elected representatives of the people.

I, of course, do not mean to say or even to intimate that freedom of speech, press, assembly, or petition can be abridged so long as the First Amendment remains unchanged in our Constitution. But to say that the First Amendment grants those broad rights free from any exercise of governmental power to regulate conduct, as distinguished from speech, press, assembly, or petition, would subject all the people of the Nation to the uncontrollable whim and arrogance of speakers, and writers, and protesters, and grievance bearers. As Mr. Justice Goldberg wrote for the Court in Cox v. Louisiana, 379 U. S. 536, 554 (1965):

“The rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time. The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy.”

Were the authority of government so trifling as to permit anyone with a complaint to have the vast power to do anything he pleased, wherever he pleased, and whenever he pleased, our customs and our habits of conduct, social, political, economic, ethical, and religious, would all be wiped out, and become no more than relics of a gone but not forgotten past. Churches would be compelled to welcome into their buildings invaders who came but to scoff and jeer; streets and highways and public buildings would cease to be available for the purposes for which they were constructed and dedicated whenevef demonstrators and pieketers wanted to use them for their own purposes. And perhaps worse than all other changes, homes, the sacred retreat to which families repair for their privacy and their daily way of living, would have to have their doors thrown open to all who desired to convert the occupants to new views, new morals, and a new way of life. Men and women who hold public office would be compelled, simply because they did hold public office, to lose the comforts and privacy of an unpicketed home. I believe that our Constitution, written for the ages, to endure except as changed in the manner it provides, did not create a government with such monumental weaknesses. Speech and press are, of course, to be free, so that public matters can be discussed with impunity. But picketing and demonstrating can be regulated like other conduct of men. I believe that the homes of men, sometimes the last citadel of the tired, the weary, and the sick, can be protected by government from noisy, marching, tramping, threatening picketers and demonstrators bent on filling the minds of men, women, and children with fears of the unknown.

For these reasons I concur in the reversal.

APPENDIX TO OPINION OF BLACK, J., CONCURRING.

Excerpt From Opinion of the Supreme Court of Illinois.

“About 4:30 P.M. the marchers, two abreast, walked out of the park and went to the city hall in the loop. The marchers then walked south on State Street to 36th Street and then proceeded west to Lowe Avenue, a distance of about 5 miles from the city hall. The mayor’s home is at 3536 South Lowe Avenue. The demonstrators had increased in number to about 85 and they arrived at the mayor’s home about 8:00 o’clock P.M. In addition to the police, the marchers were accompanied by their attorney and an assistant city counsel. At the suggestion of an assistant city counsel, Gregory had agreed that the group would quit singing at 8:30 P.M. Commander Pierson, district commander of the 9th police district which encompasses this area, met Lieutenant Hougeson at the corner of 35th and Lowe and assumed command of the police operations.

“There were about 35 people on the corner and a group of about 6 or 8 youngsters carrying a sign ‘We Love Mayor Daley’ tried to join the marchers but the police stopped them. As the demonstrators started south into the 3500 block of Lowe Avenue, Gregory testified he went back through the line to tell everyone just to keep singing and to keep marching. ‘Don’t stop and don’t answer any one back. Don’t worry about anything that is going to be said to you. Just keep marching. If anyone hits you or anything, try to remember what they look like, but above all means, do not hit them back. Keep the line straight and keep it tight.’ The demonstrators chanted ‘Ben Willis must go, Snake Daley, also;’ ‘Ben Willis must go — When?—Now;’ ‘We are going to the home of the snake, the snake pit is down the street;’ ‘Hey, Hey, what do you know, Ben Willis must go’ and ‘Hey, Hey, what do you know, Mayor Daley must go also.’ They carried signs which read: ‘Daley fire Willis;’ ‘Defacto, Desmacto, it is still segregation;’ ‘Ben Willis must go — now; ’ and ‘Mayor Daley, fire Ben Willis.’ They also sang the civil rights songs, ‘We Shall Overcome’ and ‘We Shall Not Be Moved.’

“The police ordered the taverns closed during the march. Police from the task force, the 9th district and other districts surrounded the block in which the mayor’s home is located. There were about 10 officers at each of the four intersections and about 10 officers spread along each of the four blocks. The rest of the 100 police officers assigned to the march accompanied the demonstrators as they marched around the block. The police tried to keep all spectators across the street from the marchers. They were equipped with walkie-talkie radios to relay reports of conditions to each other and they had a bullhorn with which they addressed the spectators and the demonstrators.

“As the marchers started around the block the first time, the neighbors began coming out of their homes. On the second time around the block some of the residents had moved their lawn sprinklers onto the sidewalk and the demonstrators went into the street just long enough to get around the water. On the third trip around the block the water sprinklers had been removed, presumably by order of the police. Gregory himself testified to several instances when the police kept the crowd that was accumulating from interfering with the march. ‘One of the neighborhood people stood in front of the line, and we just stopped. This individual didn’t move and we didn’t move. After a few minutes, the officer standing on the corner asked him to move and he moved.’ He said that on their fourth trip around the block (about 8:30 P.M.) people were yelling out the windows and the police made spectators in door ways close the doors. About 8:30 P.M. the demonstrators quit their singing and chanting and marched quietly. Shortly before 9:00 P.M. 100 to 150 spectators formed a line of march ahead of the demonstrators. Gregory said ‘the lieutenant [Hougeson] asked me if I would hold up the line until they got those people out of the way. I said, I will hold up the line, but they have just as much right to march peacefully as we have.’ The spectators were ordered to move. In order to avoid the appearance that the marchers were following the 100 to 150 spectators who had been ordered to move, Gregory said his group marched straight south crossing 36th Street thus taking them one block south of the block which they had been marching. They had to stop when they crossed 36th Street while the police opened a pathway through about 300 spectators they had confined on the comer across the street.

“Sergeant Golden testified that between 8:00 o’clock and 9:00 o’clock the crowd increased steadily to a few hundred, but that from 9:00 o’clock until about 9:20 o’clock the people just seemed to come from everywhere until it reached between 1,000 and 1,200. During this time the crowd became unruly. There was shouting and threats. ‘God damned nigger, get the hell out of here;’ ‘Get out of here niggers — go back where you belong or we will get you out of here’ and ‘Get the hell out of here or we will break your blankety-blank head open.’ Cars were stopped in the streets with their horns blowing. There were Ku Klux Klan signs and there was singing of the Alabama Trooper song. Children in the crowd were playing various musical instruments such as a cymbal, trumpet and drum.

“Rocks and eggs were also being thrown at the marchers from the crowd. The police were dodging the rocks and eggs and attempted to catch the persons who threw them. Sergeant Golden explained the problem. ‘You could see these teen-agers behind the crowd. You could see a boil of activity and something would come over our heads and I or my partner would go down to try to apprehend who was doing it. You couldn’t see who was doing it. They would vanish into the crowd.’ He further testified that about 9:25 P.M., ‘They were saying, “Let’s get them,” and with this they would step off the curb to try to cross 35th Street and we would push them back with force. Once in a while somebody would run out, and we would grab ahold of them and throw them back into the crowd.’

“About 9:30 P.M. Commander Pierson told Gregory the situation was dangerous and becoming riotous. He asked Gregory if he would co-operate and lead the marchers out of the area. The request to leave the area was made about five times. Pierson then told the marchers that any of them who wished to leave the area would be given a police escort. Three of the marchers accepted the proposal and were escorted out of the area. The remaining demonstrators were arrested and taken away in two police vans.

“While we have gone into considerable detail in describing the events leading to the arrest of defendants, only a complete reading of the record can give one a true picture of the dilemma confronting the police. During the entire march from 4:30 P.M. until 9:30 P.M. the marchers were accompanied by their attorney who advised them, and the police were accompanied by an assistant city attorney who advised them. In short the record shows a determined effort by the police to allow the marchers to peacefully demonstrate and at the same time maintain order.”

Mr. Justice Harlan,

concurring in the result.

Two factors in this case run afoul of well-established constitutional principles, and clearly call for reversal. These are the ambulatory sweep of the Chicago disorderly conduct ordinance, see, e. g., Cantwell v. Connecticut, 310 U. S. 296 (1940), and Garner v. Louisiana, 368 U. S. 157, 186 (1961) (Harlan, J., concurring in judgment), and the possibility that as the case went to the jury the convictions may have rested on a constitutionally impermissible ground. See Stromberg v. California, 283 U. S. 359 (1931).

I agree with the concurring opinion of my Brother Black on both of these scores, and to that extent join in it.

      The trial judge charged solely in terms of the Chicago ordinance. Neither the ordinance nor the charge defined disorderly conduct as the refusal to obey a police order.

        Brown v. Board of Education, 347 U. S. 483 (1954).

       See, e. g., Cox v. Louisiana, 379 U. S. 536 (1965); Adderley v. Florida, 385 U. S. 39 (1966).

       See, e. g., Chambers v. Florida, 309 U. S. 227, 235-236, n. 8 (1940); Rochin v. California, 342 U. S. 165 (1952); id., at 174 (concurring opinion); Ferguson v. Skrupa, 372 U. S. 726 (1963).

       The nearest thing to such a law in existence at that time was § 36-31 of the Municipal Code of Chicago, which required written permits for parades on “any public way” or for “any open air public meeting ... in or upon any public way.” Petitioners were neither charged with nor convicted for the offense of failing to obtain a written permit. Indeed, the city clearly gave its effective permission to the marchers by sending a city attorney and a detail of specially trained officers to protect them along every foot of their march. Since “[d]eeply embedded traditional ways of carrying out state policy ... are often tougher and truer law than the dead words of the written text,” Nashville, C. & St. L. R. Co. v. Browning, 310 U. S. 362, 369 (1940), this march could not be considered illegal in and of itself.

       Respondent asserts that under Ill. Rev. Stat., c. 122, §34-13 (1967), the Superintendent of Schools is accountable solely to the Board of Education and not to the Mayor.

       See, e. g., Thornhill v. Alabama, 310 U. S. 88 (1940); Cantwell v. Connecticut, 310 U. S. 296 (1940); Giboney v. Empire Storage Co., 336 U. S. 490 (1949); Scull v. Virginia, 359 U. S. 344 (1959).

       The trial judge explained the need for this instruction to counsel, in chambers, as follows:
      “[T]he record is replete with evidence that a Jury may well consider to establish the violation of the law on the part of the so-called spectators and neighbors, and the record is silent as to whether any of them were arrested or not.

      “As far as why didn’t they arrest these other people, why didn't they arrest the spectators and so on and so on, it seems to me that by virtue of the way the evidence went in, this will be a question that will bother these Jurors unless it is taken care of.”

       See Thornhill v. Alabama, 310 U. S. 88 (1940); Edwards v. South Carolina, 372 U. S. 229 (1963); Cox v. Louisiana, 379 U. S. 536 (1965).

       See also Cole v. Arkansas, 333 U. S. 196 (1948); Cole v. Arkansas, 338 U. S. 345 (1949).


author: Mr. Justice Douglas Mr. Justice Harlan, Mr. Justice Stewart,

text:
    CITIZEN PUBLISHING CO. et al. v. UNITED STATES.
    No. 243.
    Argued January 15, 1969.
    Decided March 10, 1969.

      Richard J. MacLaury argued the cause for appellants. With him on the briefs were Francis N. Marshall, Thomas J. Klitgaard, John L. Donahue, Jr., and George Read Oarlock.

      Daniel M. Friedman argued the cause for the United States. On the brief were Attorney General Clark, Solicitor General Griswold, Assistant Attorney General Zimmerman, Howard E. Shapiro, Charles D. Mahaffie, Jr., and Gerald A. Connell.

    Briefs of amici curiae urging reversal were filed by Arthur B. Hanson for the American Newspaper Publishers Assn., and by Robert L. Stern for a number of newspaper publishers.
   Mr. Justice Douglas

delivered the opinion of the Court.

Tucson, Arizona, has only two daily newspapers of general circulation, the Star and the Citizen. The Citizen is the oldest, having been founded before 1900, and is an evening paper published six times a week. The Star, slightly younger than the Citizen, has a Sunday as well as a daily issue. Prior to 1940 the two papers vigorously competed with each other. While their circulation was about equal, the Star sold 50% more advertising space than the Citizen and operated at a profit, while the Citizen sustained losses. Indeed the Star’s annual profits averaged about $25,825, while the Citizen’s annual losses averaged about $23,550.

In 1936 the stock of the Citizen was purchased by one Small and one Johnson for $100,000 and they invested an additional $25,000 of working capital. They sought to interest others to invest in the Citizen but were not successful. Small increased his investment in the Citizen, moved from Chicago to Tucson, and was prepared to finance the Citizen’s losses for at least awhile from his own resources. It does not appear that Small and Johnson sought to sell the Citizen; nor was the Citizen about to go out of business. The owners did, however, negotiate a joint operating agreement between the two papers which was to run for 25 years from March 1940, a term that was extended in 1953 until 1990. By its terms the agreement may be canceled only by mutual consent of the parties.

The agreement provided that each paper should retain its own news and editorial department, as well as its corporate identity. It provided for the formation of Tucson Newspapers, Inc. (TNI), which was to be owned in equal shares by the Star and Citizen and which was to manage all departments of their business except the news and editorial units. The production and distribution equipment of each paper was transferred to TNI. The latter had five directors — two named by the Star, two by the Citizen, and the fifth chosen by the Citizen out of three named by the Star.

The purpose of the agreement was to end any business or commercial competition between the two papers and to that end three types of controls were imposed. First was price fixing. The newspapers were sold and distributed by the circulation department of TNI; commercial advertising placed in the papers was sold only by the advertising department of TNI; the subscription and advertising rates were set jointly. Second was profit pooling. All profits realized were pooled and distributed to the Star and the Citizen by TNI pursuant to an agreed ratio. Third was a market control. It was agreed that neither the Star nor the Citizen nor any of their stockholders, officers, and executives would engage in any other business in Pima County — the metropolitan area of Tucson — in conflict with the agreement. Thus competing publishing operations were foreclosed.

All commercial rivalry between the papers ceased. Combined profits before taxes rose from $27,531 in 1940 to $1,727,217 in 1964.

The Government’s complaint charged an unreasonable restraint of trade or commerce in violation of § 1 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. § 1, and a monopoly in violation of § 2, 15 U. S. C. § 2. The District Court, after finding that the joint operating agreement contained provisions which were unlawful per se under § 1, granted the Government’s motion for summary judgment.

The case went to trial on the § 2 charge and also on a charge brought under § 7 of the Clayton Act, 38 Stat. 731, as amended, 15 U. S. C. § 18. The latter charge arose out of the acquisition of the stock of the Star by the shareholders of the Citizen pursuant to an option in the joint operating agreement. Arden Publishing Company was formed as the vehicle of acquisition and it now publishes the Star.

At the end of the trial the District Court found that the joint operating agreement in purpose and effect monopolized the only newspaper business in Tucson in violation of § 2 of the Sherman Act.

As respects the Clayton Act charge the District Court found that in Pima County, the appropriate geographic market, the Citizen’s acquisition of the Star stock had the effect of continuing in a more permanent form a substantial lessening of competition in daily newspaper publishing that is condemned by § 7.

The decree does not prevent all forms of joint operation. It requires, however, appellants to submit a plan for divestiture and re-establishment of the Star as an independent competitor and for modification of the joint operating agreement so as to eliminate the price-fixing, market control, and profit-pooling provisions. 280 F. Supp. 978. The case is here by way of appeal. Expediting Act, § 2, 32 Stat. 823, as amended, 15 U. S. C. § 29.

We affirm the judgment. The § 1 violations are plain beyond peradventure. Price-fixing is illegal per se. United States v. Masonite Corp., 316 U. S. 265, 276. Pooling of profits pursuant to an inflexible ratio at least reduces incentives to compete for circulation and advertising revenues and runs afoul of the Sherman Act. Northern Securities Co. v. United States, 193 U. S. 197, 328. The agreement not to engage in any other publishing business in Pima County was a division of fields also banned by the Act. Timken Co. v. United States, 341 U. S. 593. The joint operating agreement exposed the restraints so clearly and unambiguously as to justify the rather rare use of a summary judgment in the antitrust field. See Northern Pac. R. Co. v. United States, 356 U. S. 1, 5.

The only real defense of appellants was the “failing company” defense — a judicially created doctrine. The facts tendered were excluded on the § 1 charge but were admitted on the § 2 charge as well as on the § 7 charge under the Clayton Act. So whether or not the District Court/was correct in excluding the evidence under the § 1 charge, it is now before us; and a consideration of it makes plain that the requirements of the failing company jioctrine were not met. That defense was before the Court in International Shoe Co. v. FTC, 280 U. S. 291, where § 7 of the Clayton Act was in issue. The evidence showed that the resources of one company were so depleted and the prospect of rehabilitation so remote that “it faced the grave probability of a business failure.” 280 U. S., at 302. There was, moreover, “no other prospective purchaser.” Ibid. It was in that setting that the Court held that the acquisition of that company by another did not substantially lessen competition within the meaning of § 7. 280 U. S., at 302-303.

In the present case the District Court found:

“At the time Star Publishing and Citizen Publishing entered into the operating agreement, and at the time the agreement became effective, Citizen Publishing was not then on the verge of going out of business, nor was there a serious probability at that time that Citizen Publishing would terminate its business and liquidate its assets unless Star Publishing and Citizen Publishing entered into the operating agreement.” 280 F. Supp., at 980.

The evidence sustains that finding. There is no indication that the owners of the Citizen were contemplating a liquidation. They never sought to sell the Citizen and there is no evidence that the joint operating agreement was the last straw at which the Citizen grasped. Indeed the Citizen continued to be a significant threat to the Star. How otherwise is one to explain the Star’s willingness to enter into an agreement to share its profits with the Citizen? Would that be true if as now claimed the Citizen was on the brink of collapse?

The failing company doctrine plainly cannot be applied in a merger or in any other case unless it is established that the company that acquires the failing company or brings it under dominion is the only available purchaser. For if another person or group could be interested, a unit in the competitive system would be preserved and not lost to monopoly power. So even if we assume, arguendo, that in 1940 the then owners of the Citizen could not long keep the enterprise afloat, no effort was made to sell the Citizen; its properties and franchise were not put in the hands of a broker; and the record is silent on what the market, if any, for the Citizen might have been. Cf. United States v. Diebold, Inc., 369 U. S. 654, 655.

Moreover, we know from the broad experience of the business community since 1930, the year when the International Shoe case was decided, that companies reorganized through receivership, or through Chapter X or Chapter XI of the Bankruptcy Act often emerged as strong competitive companies. The prospects of reorganization of the Citizen in 1940 would have had to be dim or nonexistent to make the failing company doctrine applicable to this case.

The burden of proving that the conditions of the failing company doctrine have been satisfied is on those who seek refuge under it. That burden has not been satisfied in this case.

We confine the failing company doctrine to its present narrow scope.

The restraints imposed by these private arrangements have no support from the First Amendment as Associated Press v. United States, 326 U. S. 1, 20, teaches.

Neither news gathering nor news dissemination is being regulated by the present decree. It deals only with restraints on certain business or commercial practices. The restraints on competition with which the present decree deals comport neither with the antitrust laws nor with the First Amendment. As we stated in the Associated Press case:

“It would be strange indeed ... if the grave concern for freedom of the press which prompted adoption of the First Amendment should be read as a command that the government was without power to protect that freedom. The First Amendment, far from providing an argument against application of the Sherman Act, here provides powerful reasons to the contrary. That Amendment rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society. Surely a command that the government itself shall not impede the free flow of ideas does not afford nongovernmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom. Freedom to publish means freedom for all and not for some. Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not. Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests. The First Amendment affords not the slightest support for the contention that a combination to restrain trade in news and views has any constitutional immunity.” 326 U. S., at 20.

The other points mentioned are too trivial for discussion. Divestiture of the Star seems to us quite proper. At least there is no showing of that abuse of discretion which authorizes us to recast the decree. See United States v. Crescent Amusement Co., 323 U. S. 173, 185.

Affirmed.

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

Mr. Justice Harlan,

concurring in the result.

When the owners of the Citizen and the Star embarked upon their joint venture in 1940, they did not believe that they were combining their commercial operations for all time. Rather, their contract provided that the venture would last for 25 years and that the relationship would terminate in 1965 if both parties agreed to go their separate ways. It was only in 1953 that the parties agreed they would not permit their contract to expire in 1965 but would continue their relationship for another quarter century beyond the original termination date.

Nevertheless, both the Department of Justice and my Brethren have decided that the crucial question in this case is whether the original 1940 transaction could be justified on “failing company” grounds. Yet regardless of one’s view of the 1940 transaction, the fact remains that if the parties had not renewed their agreement, full competition between the two newspapers would have been restored in 1965 and the Justice Department would never have begun the Sherman Act branch of this lawsuit. It would appear, then, that the decisive issue in this case is not the validity of the original 1940 transaction but the propriety of the decision taken in 1953 in which the term of the joint venture was extended by a quarter century beyond its original termination date.

In defense of the Court’s approach, one may argue that if the 1940 agreement had provided that the newspapers’ joint venture was to continue indefinitely, we would then have been required to decide this case on the basis of the situation prevailing at the time of the original transaction. In other words, if the agreement had been only slightly different it is arguable that we would have had no choice but to treat the transaction in the same way we would treat a total corporate merger. However this may be, I do not understand why the parties’ decision to retain the advantages of flexibility should not be decisive for our purposes. If businessmen believe, after considering all the relevant factors, that future events may deprive their existing arrangements of utility, there is no reason why the antitrust laws should not view the transaction in a similar way.

While the trial court did not analyze the case in the way which I have suggested, it made sufficient factual findings to permit an evaluation of the legality of the 1953 decision extending the joint venture’s term. The Court in effect found that in each year between 1940 and 1953, each newspaper operated at a profit. Moreover, in the decade preceding 1953, the joint venture’s total profits increased with each succeeding year. Given this pattern of increasing profitability, I would hold that the "failing company” doctrine could not reasonably permit the two newspapers to extend the term of the agreement in 1953 at a time when it was impossible to predict whether full competition could be renewed in 1965.

Nor can the newspapers appropriately invoke the “failing company” defense to justify another quarter century’s joint operation on the basis of the financial situation which actually existed in 1965. For the trial judge found that the joint venture’s profits had continued their upward spiral with each year, reaching $1,727,217 in 1964, and that both the newspapers are now “in sound financial condition.” 280 F. Supp. 978, 983. Moreover, in the quarter century since 1940, the number of households in the Tucson area has almost quadrupled, see Government’s Exhibit 55, App. 452, and total circulation of the Star and the Citizen has increased proportionately. See Government’s Exhibit 49, App. 448-450. While the District Court found it “impossible to predict” how well the two papers could compete without their present agreement, 280 F. Supp., at 993, I would hold that the joint venture’s profitability required the companies to make a conscientious effort to operate independently before they could properly contend that their operating agreement was a business necessity.

Consequently, although I join in the Court’s judgment in this case, I find it unnecessary to define the circumstances in which a declining newspaper may properly act to assure its future independence as a news medium by entering into a joint operating agreement similar to the one challenged here.

Mr. Justice Stewart,

dissenting.

Prior decisions of this Court have made it clear that a failing company cannot combine with a competitor if its independence could be preserved by sale to an outsider. Today’s decision for the first time lays down the blanket rule that the failing company defense is forfeited by a company which cannot show that it made substantial affirmative efforts to sell to a noncompetitor. That precise quantum and quality of proof may be a reasonable and effective prophylactic standard to ensure that the company could truly not have been sold. But proof of unsuccessful efforts to sell the company is not, as a logical, evidentiary matter, the only possible conclusive proof that it was not marketable. In many cases other evidence might make equally clear that any such efforts would surely have been fruitless. The Court’s new rule, in other words, has validity only as a standard imposed on future conduct and not as an unrebuttable evidentiary presumption with respect to past events. Therefore, the inflexible enforcement of that rule should be limited to those who — unlike the appellants — were on notice of their obligation to be able to prove that they made tangible efforts, however futile, to find an outside buyer.

It cannot be said that the appellants in the District Court did not adduce convincing evidence that the Citizen was failing so woefully that no outsider would have considered purchasing it. On the contrary, they introduced not only substantial evidence of the dire financial condition of the Citizen and of the newspaper industry generally, but also specific testimony by experts that in the prevailing business climate the Citizen could not possibly have been sold to an outsider. In the face of such an offer of proof, this Court does not find that the company was, in fact, salable. It affirms the judgment only because of the appellants’ failure to prove their defense in a particular way — a requirement imposed for the first time today.

The District Judge did not resolve the central factual issue against the appellants. He made no finding that the company was salable. Indeed, the judge refused even to consider the appellants’ evidence in connection with the issues under § 1 of the Sherman Act. With respect to the § 1 count, he excluded the evidence altogether on the erroneous ground that the failing company defense was wholly unavailable to participants in the kind of joint operating agreement involved in this case. And while he admitted the evidence at trial on the other counts, he explicitly limited its relevance to the question of the bona fides of the Star owner’s belief that his company was not monopolizing the market. In view of these rulings and the absence of any pertinent findings, it is clear that the appellants have not had their day in court on the critical issue in this case.

The District Court did find that

“at the time the agreement became effective, Citizen Publishing was not then on the verge of going out of business, nor was there a serious probability at that time that Citizen Publishing would terminate its business and liquidate its assets unless Star Publishing and Citizen Publishing entered into the operating agreement.” 280 F. Supp. 978, 980.

I do not believe this finding supports the conclusion that Citizen was not a failing company, or even that the District Court thought it was not a failing company. Every other material finding of the District Court was to the effect that Citizen was dying. The only subsidiary finding consistent with the conclusion that Citizen was not then on the verge of immediate demise was that Small, by his own admission, was “prepared to finance the losses of Citizen Publishing for some little time thereafter from resources available to him other than the earnings or assets of Citizen Publishing.” Id., at 980.

As stated above, the District Judge mistakenly thought that the failing company defense was unavailable in a case like this under § 1 of the Sherman Act. But he made clear his view that, if the failing company defense had been available — as in a total merger, for example— that defense would have prevailed:

“Mr. MacLaury: Well, would Your Honor then think if they had dissolved Star or Citizen or both and simply merged them all into one company, then the failing company doctrine would apply?
“The Court: I think if Star acquired all of Citizen's assets and gave stock to the owners of Citizen, it probably would. I would say that the Government wouldn’t have much chance in this particular case of attacking that acquisition.” (Emphasis supplied.)

Because the question whether Citizen was a failing company has not yet been properly determined, I would vacate the judgment and remand the case to the District Court, so that this dispositive question may be fully canvassed.

       Section 7 provides in part:
      “[N]o corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital ... of another corporation engaged also in commerce, where in any line of commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.”

       See Bok, Section 7 of the Clayton Act and the Merging of Law and Economics, 74 Harv. L. Rev. 226, 339 (1960); Hale & Hale, Failing Firms and the Merger Provisions of the Antitrust Laws, 52 Ky. L. J. 597, 607 (1964); Connor, Section 7 of the Clayton Act: The “Failing Company” Myth, 49 Geo. L. J. 84, 96 (1960).
      The failing company doctrine was held to justify mergers in United States v. Maryland & Virginia Milk Producers Assn., 167 F. Supp. 799, aff’d, 362 U. S. 458, and in Union Leader Corp. v. Newspapers of New England, 284 F. 2d 582.
      For cases where the failing company doctrine was not allowed as a defense see United States v. Diebold, Inc., 369 U. S. 654; United States v. El Paso Gas Co., 376 U. S. 651; United States v. Von’s Grocery Co., 384 U. S. 270; United States v. Philadelphia National Bank, 374 U. S. 321, 372, n. 46; United States v. Third National Bank, 390 U. S. 171.

       It should be noted that at the time the International Shoe Co. case was decided § 7 of the Clayton Act provided: “[N]o corporation . . . shall acquire . . . stock or other share capital of another corporation . . . where the effect of such acquisition may be to substantially lessen competition between the corporation whose stock is so acquired and the corporation making the acquisition ....’’ (Emphasis supplied.) Consequently, where the acquired company was “such as to necessitate liquidation,” and where “the prospect for future competition . . . was entirely eliminated,” it may have been reasonable to conclude that there was no more existing competition between the companies to be lessened by acquisition. 280 U. S., at 294. In 1950, however, § 7 was amended to make the measure of anticompetitive acquisitions the extent to which they lessened competition “in any line of commerce,” rather than the extent to which they lessened competition “between” the two companies.
      We have no occasion, however, to determine what changes, if any, that amendment had on the failing company doctrine.

       Bills-were introduced both in the 90th Congress (S. 1312 by Senator Hayden and H. R. 19123 by Mr. Edmondson) and in the 91st Congress (H. R. 279 by Mr. Matsunaga and H. R. 5199 by Mr. Johnson) to exempt from the antitrust laws joint operating agreements between newspapers because of economic distress. Extensive hearings were held in 1967 and 1968. See Hearings on S. 1312 before the Subcommittee on Antitrust and Monopoly of the Senate Committee on the Judiciary, 90th Cong., 1st Sess., pts. 1-6; Hearings on H. R. 19123 and Related Bills before the Antitrust Subcommittee of the House Committee on the Judiciary, 90th Cong., 2d Sess., ser. 25. The hearings reflect all shades of opinion. As stated by the House Subcommittee:
      “The antitrust laws embody concepts and principles which long have been considered to be the bedrock of our economic institutions. Piecemeal exemptions from the antitrust laws to cope with problems of particular industries have been given reluctantly and only after there has been a clear showing of overriding need.” Hearings, supra, ser. 25, p. 2. See Roberts, Antitrust Problems in the Newspaper Industry, 82 Harv. L. Rev. 319, 344-352 (1968); Flynn, Antitrust and the Newspapers, A Comment on S. 1312, 22 Vand. L. Rev. 103 (1968).
      As of this date Congress has taken no action on any of those bills.

         International Shoe Co. v. FTC, 280 U. S. 291; United States v. Diebold, Inc., 369 U. S. 654. Cf. United States v. Third National Bank, 390 U. S. 171, 190-192.

       Small worked as publisher of the paper without a salary. Yet as of December 31, 1939, Citizen Publishing owed approximately $79,000 to its stockholders for advances of working capital; it had current liabilities of over $47,000, as opposed to current assets of $16,525 in accounts receivable, $420 in bank deposits, and $66 cash on hand. Its liabilities exceeded its assets, exclusive of goodwill, by some $53,400.

       “The period 1937 through 1943 constituted the most dismal era in 20th century newspaper history; more than half of the net decrease of daily newspapers since 1909 occurred during those seven years.” Ray, Economic Forces as Factors in Daily Newspaper Concentration, 29 Journalism Quarterly 31, 34 (1952).

       Newspaper brokers and publishers who testified that they were intimately familiar with the newspaper industry and aware of the situations of the Citizen and the Star, gave their opinions that there was no market for the Citizen unless it could somehow be joined with the Star. E. g.:

      “Mr. Manno: I do not think that the Citizen Publishing Company was salable in 1940, except on what I would describe as a distress basis.
      “Mr. MacLaury: Would it have been salable to an outside publisher who intended to, or who would have had a reasonable expectation of operating Citizen at a profit?
      “Mr. Manno: No, sir, its potential salability would be based on the possibility of a prospective purchaser contemplating that he could possibly buy it and then go into a mutual production plan with the Star, or resell the Citizen to the Star at a potential profit.”
      It does not appear that any testimony to the contrary was introduced by the Government.

       See, e. g., the following two specific findings:
      “12. From 1932 to 1940, Citizen Publishing operated at a substantial loss. Its losses were defrayed by contributions made by its stockholders. Star Publishing from 1932 to 1940 operated at a profit.

      “15. For many years prior to 1940, Citizen Publishing had been unable to pay a dividend. Prior to 1940, Mr. Small, Sr., received no salary and by March, 1940, Citizen Publishing owed debts of more than $109,000. Of this indebtedness, about $79,000 was to stockholders of Citizen Publishing.”