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

text:
    KLOPFER v. NORTH CAROLINA.
    No. 100.
    Argued December 8, 1966.
    Decided March 13, 1967.

      Wade H. Penny, Jr., argued the cause and filed a brief for petitioner.

      Andrew A. Vanore, Jr., argued the cause for respondent. With him on the brief were T. W. Bruton, Attorney General of North Carolina, and Ralph Moody, Deputy Attorney General.

      William W. Van Alstyne and Melvin L. Wulf filed a brief for the American Civil Liberties Union et al.', as amici curiae.

   Mr. Chief Justice Warren

delivered the opinion of the Court.

The question involved in this case is whether a State may indefinitely postpone prosecution on an indictment without stated justification over the objection of an accused who has been discharged from, custody. It is presented in the context of an application of an unusual North Carolina criminal procedural device known as the “nolle prosequi with leave.”

Under North Carolina criminal procedure, when the prosecuting attorney of a county, denominated the solicitor, determines that he does not desire to proceed further with a prosecution, he may take- a nolle prosequi, thereby declaring “that he will not, at that time, prosecute the suit further. Its effect is to put the defendant without day, that is, he is discharged and permitted to go whithersoever he will, without entering into a recognizance to appear at any other time.” Wilkinson v. Wilkinson, 159 N. C. 265, 266-267, 74 S. E. 740, 741 (1912). But the taking of the nolle prosequi does not permanently terminate proceedings on the indictment. On the contrary, “When a nolle prosequi is entered, the case may be restored to the.trial docket when ordered by the judge upon the solicitor’s application.” State v. Klopfer, 266 N. C. 349, 350, 145 S. E. 2d 909, 910 (1966). And if the solicitor petitions the court to nolle prosequi the case “with leave,” the consent required to reinstate the prosecution at a future date is implied in- the order “and the solicitor (without further order) may have the case restored for trial.” Ibid. Since the indictment is not discharged by either a nolle prosequi or a'nolle prosequi with leave, the statute of limitations remains tolled. State v. Williams, 151 N. C. 660, 65 S. E. 908 (1909).

Although entry of a nolle prosequi is said to be “usually and properly left to the discretion of the Solicitor,” State v. Moody, 69 N. C. 529, 531 (1873), early decisions indicate .that the State was once aware that the trial judge would have to exercise control over the procedure to prevent oppression of defendants. See State v. Smith, 129 N. C. 546, 40 S. E. 1 (1901); State v. Thornton, 35 N. C. 256 (1852). But, in the present case, neither the court below nor the solicitor offers any reason why the case of petitioner should have been nolle prossed except for the suggestion of the Supreme Court that the solicitor, having tried the defendant once and having obtained only a mistrial, “may have concluded that another go at it would not' be worth the time and expense of another effort.” 266 N. C., at 350, 145 S. E. 2d, at 910. In his brief in this Court, the Attorney General quotes this language from the opinion below in support of the judgment.

Whether this procedure is presently sustained by the North Carolina courts under a statute or under their conception of the common-law procedure is not indicated by the opinion of the court, the transcript or the briefs of the parties in the present case. The only statutory reference to a nolle prosequi is in § 15-175, General Statutes of North Carolina, which on its face does not apply to the facts of this case. Perhaps the procedure’s genesis lies in early nineteenth century decisions of the State’s Supreme Court approving the use of a nolle prosequi with leave to reinstate the indictment, although those early applications of the procedure were quite different from those of the period following enactment of §. 15-175. Compare State v. Thompson, 10 N. C. 613 (1825), and State v. Thornton, 35 N. C. 256 (1852) (capias issued immediately after entry of the nolle prosequi with leave), with State v. Smith, 170 N. C. 742, 87 S. E. 98 (1915) (capias issued eight years after a nolle prosequi with leave was taken, even though the defendant had been available for trial in 1907).

The consequence of this extraordinary criminal procedure is made apparent by the case before the Court. A defendant indicted for a misdemeanor may be denied an opportunity to exonerate himself in the discretion of the solicitor and held subject to -trial, over his objection, throughout the unlimited period in which the solicitor may restore the case to the calendar. During that period, there is no means by which he can obtain a dismissal or have the case restored to the calendar for trial. In spite of this result, both the Supreme Court and the Attorney General state as a fact, and rely upon it for affirmance in this case, that this procedure as applied to the petitioner placed no limitations upon him, and was in no way violative of his rights. With this we cannot agree.

This procedure was applied.to the petitioner in the following circumstances:

On February 24, 1964, petitioner was indicted by the grand jury of Orange County for the crime of criminal trespass, a misdemeanor punishable by fine and imprisonment in an amount and duration determined by the court in the exercise of its discretion. The bill charged that he entered a restaurant on January 3, 1964, and, “after being ordered ... to leave the said premises, wilfully and unlawfhlly refused to do so, knowing or having reason to know that he . . . had no license therefor . . . Prosecution on the indictment began with admirable promptness during the March 1964 Special Criminal Session of the Superior Court of Orange County; but, when the jury failed to reach a verdict, the trial judge declared á mistrial and ordered the case continued for the term.

Several weeks prior to the April 1965 Criminal Session of the Superior Court, the State’s solicitor informed petitioner of his intention to have a nolle prosequi with leave entered in the case. During the session, petitioner, through his attorney, opposed the entry of such an order in open court. The trespass charge, he contended, was abated by the Civil Rights Act of 1964 as construed in Hamm v. City of Rock Hill, 379 U. S. 306 (1964). In spite of petitioner’s opposition, the court indicated that it would approve entry of a nolle prosequi with leave if requested to do so by the solicitor: But the solicitor declined to make a motion for a nolle prosequi with leave. Instead, he filed a motion with the court to continue the case for yet another term, which motion was granted.

The calendar for the August 1965 Criminal Session of the court did not list Klopfer’s case for trial. To ascertain the status of his case, petitioner filed a motion expressing his desire to have the charge pending against him “permanently concluded in accordance with the applicable, laws of the State of North Carolina and of the United States as soon as is reasonably possible.” Noting that, some 18 months had elapsed since the indictment, petitioner, a professor of zoology at Duke-University, contended that the pendency of the indictment greatly interfered with his professional activities and with his travel here and abroad. “Wherefore,” the motion concluded, “the defendant . . . petitions the Court that the Court in the exercise of its general supervisory jurisdiction inquire into the trial status of the charge pending against the defendant and . . . ascertain the intention of the State in regard to the trial of said charge and as to when the defendant will be brought to trial.”

In response to the motion, the trial judge considered the status of petitioner’s case in open court on Monday, August 9, 1965, at which time the solicitor moved the court that the State be permitted to take a nolle prosequi with leave. Even though no justification for the proposed entry , was offered by the State, and, in spite of petitioner’s objection to the order, the court granted the State’s motion.

On appeal to the Supreme Court of North Carolina,petitioner contended that the entry of the nolle prosequi with leave order deprived him of his right to a speedy trial as required by the Fourteenth Amendment to the United States Constitution. Although the Supreme. Court acknowledged that entry of the nolle prosequi with leave did not permanently discharge the indictment, it nevertheless affirmed. Its opinion concludes:

“Without question a defendant has the right to a speedy trial, if there is to be a trial. However, we do not understand the defendant has the right to compel the State to prosecute him if the state’s prosecutor, in his .discretion and with .the court’s approval, elects to take a nolle prosequi. In this case'one jury seems to have been unable to agree. The solicitor may have concluded that another go at it would not be worth the time and expense of another effort. j-
“In this case the solicitor and the court, in entering the nolle prosequi with leave followed the customary procedure in such cases. Their discretion is not reviewable under , the facts disclosed by this record. . The order is affirmed.” 266 N. C., at 350-351, 145 S. E. 2d, at 910.

The North Carolina Supreme Court’s conclusion — that the right to a speedy trial does not afford affirmative protection against an unjustified postponement of trial for an accused discharged from custody — has been explicitly rejected by every other state court , which has considered the question. That conclusion has also been implicitly rejected by the numerous courts which have held that a nolle prossed indictment may not be reinstated at a subsequent term.

We, too, believe that the position taken by the court below was erroneous.. The petitioner is not relieved of the limitations placed upon his liberty by this prosecution merely because its suspension permits him to go “whithersoever he will.” The pendency of the indictment may subject him tó public scorn and deprive him of employment, and almost certainly will force curtailment of his speech, associations and participation in unpopular causes. By indefinitely prolonging this oppression, as well as the “anxiety and concern accompanying public accusation,” the criminal procedure condoned in this case ,by the Supreme Court of North Carolina clearly denies the petitioner the right to a speedy trial which we hold is guaranteed to him by the Sixth Amendment of the Constitution of the United States.

While there has been a difference of opinion as to what provisions of this Amendment to the Constitution apply to the States through the Fourteenth Amendment, that question has been settled as to some of them in the recent cases of Gideon v. Wainwright, 372 U. S. 335 (1963), and Pointer v. Texas, 380 U. S. 400 (1965). In the latter case, which dealt with the confrontation-of-witnesses provision, we said:

“In the fight of Gideon, Malloy, and other eases cited in those opinions holding various provisions of the Bill of Rights applicable to the States by virtue of the Fourteenth Amendment, the statements made in West and similar cases generally declaring that the Sixth Amendment does not apply to the States can no longer be regarded as the law. We hold that petitioner was entitled to be tried in accordance with the protection of the confrontation guarantee of the Sixth Amendment, and that that guarantee, like the right against compelled self-incrimination, is ‘to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.’ Malloy v. Hogan, supra, 378 U. S., at 10.”

We hold here that the right to a speedy trial is as fundamental as any of the rights secured by the Sixth Amendment. That right has its roots at the very foundation of our English law heritage. Its’first articulation in modern jurisprudence appears to have been made in Magna Carta (1215), wherein it was written, “We will sell to no man, we will not deny or defer to any man either justice or right”; but evidence of recognition of the right to speedy justice in even earlier times is found in the Assize of Clarendon (1166). By the late thirteenth century, justices, armed with commissions of gaol delivery and/or oyer and terminer were visiting the countryside three times a year. These justices, Sir . Edward Coke wrote in Part II of his Institutes, “have not suffered the prisoner to be long detained, but at their next coming have given the prisoner full and speedy justice, . . . without detaining him long in prison.” To Coke, prolonged detention without trial would have been contrary to the law and custom of England; but he also beliéved that the delay in trial, by itself, would be an improper denial of justice. In his explication of Chapter 29 of the Magna Carta, he wrote that the words “We will sell to no man, we will not deny or defer to any man either justice or right” had the following effect:

“And therefore, every subject of this realme, for injury done to .him in bonis, terris, vel persona, by any other subject, ,be he ecclesiasticall, or temporall, free, or bond, man, or woman, old, or young, or be he outlawed, excommunicated, of any other without exception, may take his remedy by the course of the law, and have justice, and right for the injury done to him, freely : without sale, fully without any deniall, and speedily without delay.”

Coke’s Institutes were read in the American Colonies by virtually every student of the law. Indeed, Thomas Jefferson wrote that at the time he studied law (1762— 1767), “Coke Lyttleton was the universal elementary book of law students.” And to John Rutledge of South Carolina, the Institutes seemed “to be almost ⅛⅜ foundation of our law.” To Coke, in turn, Magna Carta was one of the fundamental bases of English liberty. Thus, it is not surprising that when George Mason drafted the first of the colonial bills of rights, he set forth a principle of Magna Carta, using phraseology similar to that of Coke’s explication: “[I]n all capital or criminal prosecutions,” the Virginia Declaration of Rights of 1776 provided, “a man hath a right ... to a speedy trial . . . That this right was considered fundamental at this early period in our history is evidenced by its guarantee in the constitutions of several of the States of the new nation, as well as by its prominent position in the Sixth Amendment. Today, each of the 50 States guarantees the right to a speedy trial to its citizens.

The history of the right to a speedy trial and its reception in this country clearly establish that it is one of the most basic rights preserved by our Constitution.

For the reasons stated above, the judgment must be reversed and remanded for proceedings not inconsistent with the opinion of the Court.

It is so ordered.

Mb. Justice Stewart concurs in the result.

Mr. Justice Harlan,

concurring in the result.

While I entirely agree with the result reached by the Court, I am unable to subscribe to the constitutional premises upon which that result is based — quite evidently the viewpoint that the Fourteenth Amendment “incorporates” or “absorbs” as such all or some of the specific provisions of the Bill of Rights. I do not believe that this is sound constitutional doctrine. See my opinion concurring in the result in Pointer v. Texas, 380 U. S. 400, 408.

I would rest decision of this ease not on the “speedy trial” provision of the Sixth Amendment, but on the ground that this unusual North Carolina procedure, which in effect allows state prosecuting officials to put a person under the cloud of an unliquidated criminal charge for an indeterminate period, violates the requirement of fundamental fairness assured by the Due Process Clause of the Fourteenth Amendment. To support that conclusion I need only refer to the traditional concepts of due process set forth in the opinion of The Chief Justice.

      N. C. Gen. Stat. §.15-175 (1965).:
      “A .nolle prosequi ‘with leave’ shall be entered' in all criminal actions in which the indictment has-been pending for two terms of court and the defendant has not been apprehended and. in which a nolle prosequi has not been entered, unless the judge for good cause shown shall order otherwise. The clerk of the superior court shall issue a capias for the arrest of any defendant named in any criminal action in which a nolle- prosequi has been entered when he has reasonable ground for believing that such defendant may be arrested or upon the application of the solicitor of the district-. When any defendant shall be arrested it shall be the duty of the clerk to issue a subpoena for the witnesses for the State indorsed on the indictment.”
      The provision was originally enacted in 1905.

       On oral argument, counsel -for the State informed the Court that a North Carolina indictment could be quashed only if it contained a vitiating defect. See also N. C. Gen. Stat. §§ 15-153, 15-155 (1965).

       N. C. Gen. Stat. § 14-134 (Supp. 1965). Although not expressly limited by statute, the extent of'punishment is limited by N. C. Const. 1868, Art. I, § 14 (“Excessive bail should not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted”). See State v. Driver, 78 N. C. 423 (1878). Decisions of the state courts indicate that imprisonment for up to two years .would not be an “unusual punishment.” See, e. g., State v. Farrington, 141 N. C. 844, 53 S. E. 954 (1906). The constitutional limitation upon the amount of the fine has not- been judicially determined.

       See Rost v. Municipal Court of Southern Judicial District, 184 Cal. App. 2d 507, 7 Cal. Rptr. 869 (1st Dist. 1960); Kistler v. State, 64 Ind. 371 (1879); Jones v. Commonwealth, 114 Ky. 599, 71 S. W. 643 (1903); Barrett v. State, 155 Md. 636, 142 A. 96 (1928); Hicks v. Recorder’s Court of Detroit, 236 Mich. 689, 211 N. W. 35 (1926); State v. Artz, 154 Minn. 290, 191 N. W. 605 (1923).
      See also Jacobson v. Winter, 91 Idaho 11, 415 P. 2d 297 (1966); People v. Bryarly, 23 Ill. 2d 313, 178 N. E. 2d 326 (1961); People v. Prosser, 309 N. Y. 353, 130 N. E. 2d 891 (1955); State v. Couture, 156 Me. 231, 163 A. 2d 646 (1960); State v. Keefe, 17 Wyo. 227, 98 P. 122 (1908) (the right to a speedy trial may be violated by undue delay in bringing a prisoner confined within the State to trial, even though he is not held in custody under the indictment).
      Dicta in decisions of the Colorado, Iowa, and Utah courts clearly indicate that these States would also hold that the speedy trial right would protect a defendant in petitioner’s position: see In re Miller, 66 Colo. 261, 263-264, 180 P. 749, 750-751 (1919); Pines v. District Court of Woodbury County, 233 Iowa 1284, 1294, 10 N. W. 2d 574, 580 (1943); State v. Mathis, 7 Utah 2d 100, 103, 319 P. 2d 134, 136 (1957).
      Although Pennsylvania has not decided the question presented by this case, decisions of its Supreme Court indicate that the “right to a speedy trial” is only applicable to a man held in prison. See Commonwealth ex rel. Smith v. Patterson, 409 Pa. 500, 187 A. 2d 278 (1963). But in that cáse, the Coipmonwealth’s Supreme Court held that the delay in,trying the defendant and the failure to give him notice of the pendency of a complaint for eight years constituted a denial of due process. Moreover, Rule 316 of the Commonwealth’s rules of criminal procedure authorizes the court to dismiss a case which has not been brought to trial within a “reasonable time.”
      By rule or legislation in 17 States, any defendant, whether at large or in custody, whose trial has been unduly delayed is entitled to a dismissal. See Ariz. Rule'Crim. Proc. 236; Cal. Pen. Code ,§1382; Ga. Code Ann. § 27-1901 (1953); Idaho Code Ann. § 19-3501 (1948); Iowa Code §795.2 (Supp. 1966); La. Rev. Stat. §§15:7.8-15:7.11 (Supp. 1962); Me. Rev. Stat. Ann., Tit. 15, § 1201 (1964); Mont. Rev. Codes Anil. § 94^9501 (1947); Nev. Rev. Stat. § 178.495; N. J. Rev. Rule Crim. Proc. 3:11-3 (Supp. 1966); N. D. Cent. Code §29-18-01 (1960); Okla. Stat., Tit. 22, §812 (1951); Ore. Rev. Stat. §134.120; S. D. Code'§ 34.2203 (Supp. 1960); Utah Code Ann. §77-51-1 (1953); Wash. Rev. Code § 10.46.01Ó; W. Va. Code Ann. §6210 (1961).

       Thirty States continue to permit a prosecuting official to enter a nolle prosequi. Legislation or court decisions in 13 of these proscribe reinstatement of the indictment at a subsequent term. See Lawson v. People, 63 Colo. 270, 165 P. 771 (1917); Price v. Cobb, 60 Ga. App. 59, 61, 3 S. E. 2d 131, 133 (1939), (by implication); Jones v. Newell, 117 So. 2d 752 (D. C. App. Fla., 2d Dist., 1960); State v. Wong, 47 Haw. 361, 389 P. 2d 439 (1964); People v.
        Watson, 394 Ill. 177, 68 N. E. 2d 265 (1946), cert. denied, 329 U. S. 769; La. Rev. Stat. § 15:328 (1950); Barrett v. State, 155 Md. 636, 142 A. 96 (1928); State v. Montgomery, 276 S. W. 2d 166 (Mo. 1955); In re Golib, 99 Ohio App. 88, 130 N. E. 2d 855 (1955); State ex rel. Hobbs v. Murrell, 170 Tenn. 152, 93 S. W. 2d 628 (1936); Ex parte Isbell, 48 Tex. Cr. R. 252, 87 S. W. 145 (1905); Dudley v. State, 55 W. Va. 472, 47 S. E. 285 (1904); Woodworth v. Mills, 61 Wis. 44, 20 N. W. 728 (1884).
      Alabama permits reinstatement of an indictment nolle pressed with leave, but only if the defendant cannot be brought before the court. See Ala. Code, Tit. 15, §251 (Supp. 1965). Thus this procedure is similar to that of filing away the indictment, discussed below.
      Of the remaining States, only North Carolina and Pennsylvania have held that a nolle prossed indictment could be reinstated at a subsequent term. See Commonwealth v. McLaughlin, 293 Pa. 218, 142 A. 213 (1928).
      Several States permit the removal of the indictment from the trial docket with leave to reinstate at some indefinite future date. But in each, use of the procedure has been limited to situations in which the defendant cannot be brought before the court or where he has consented to the removal. See, e. g., People v. Fewkes, 214 Cal. 142, 4 P. 2d 538 (1931); State v. Dix, 18 Ind. App. 472, 48 N. E. 261 (1897); Lifshutz v. State, 236 Md. 428, 204 A. 2d 541 (1964), cert. denied, 380 U. S. 953; Commonwealth v. Dowdican’s Bail, 115 Mass. 133 (1874) (indictment may be filed away only after verdict and then only with the consent of the accused); Gordon v. State, 127 Miss. 396, 90 So. 95 (1921) (consent of defendant necessary); Rush v. State, 254 Miss. 641, 182 So. 2d 214 (1966) (but not if defendant was in a mental institution at the time' the indictment was retired to the' files). At one time, Illinois' decisions indicated that when an accused was imprisoned within the State on another charge an indictment might be filed away without his consent. See, e. g., People v. Kidd, 357 Ill. 133, 191 N. E. 244 (1934). But these decisions have since been overruled. See People v. Bryarly, 23 Ill. 2d 313, 178 N.E. 2d 326 (1961).

        United States v. Ewell, 383 U. S. 116, 120 (1966).

       380 U. S., at 406.

       Magna Carta, e. 29 [c. 40 of King John’s Charter of 1215] (1225), translated and quoted in Coke, The Second Part of the Institutes of the 'Laws of England 45 (Brooke, 5th ed., 1797).

       “4. And when a robber or murderer or thief or receiver of them has been arrested through the aforesaid oath, if the justices are not about to come speedily enough into the country where they have been taken, let the sheriffs send word to the nearest justice by some well-informed person that they have arrested such men, and the justices shall send back word to the sheriffs informing them where they desire the men to be brought before them; and let the sheriffs bring them before the justices.” 2 English Historical Documents 408 (1953).

       An example of the Commission of .gaol delivery is set forth in Goebel,' Cases and Materials on the Development of Legal Institutions 53 (7th rev. 1946):
      “The lord king to his beloved and faithful Stephen de Segrave and William Fitz Warin, greeting. Know that we have appointed you justices to deliver our gaol at Gloucester, in accordance with the custom of our realm, of the prisoners arrested and held there. And hence we order you that in company with the coroners of the county of Gloucester you convene at Gloucester on the morrow of the festival of the Holy Trinity in the twelfth year of our reign [Monday, May 22, 1228], to deliver the aforementioned gaol, as aforesaid, for we have ordéred our sheriff of Gloucestershire that at the aforesaid time and.place he cause to come before you all the prisoners in the aforesaid gaol and all persons attached to appear against’ th§m and on account of them. In witness whereof, etc. Dated April 20, in the twelfth year of our reign.”
      “The judges commissioned in a general oyer and terminer commission,” Professor Goebel'writes, “are ordered to inquire by grand jury of named crimes, from treasons to the pettiest offence, as to all particulars and to hear apd determine these according to the law and custom of the realm.” Id., at 54.

        Id., at 54.

       Coke, op. cit. supra, n. 8, at 43.

       See. Ibid.

        Id.j at 55. “Hereby it appéareth,” Coke stated in the next paragraph, “that justice must have three qualities, it must be libera, quia nihil iniquius venali justitia; plena, quia justitia non debet

        claudicare; et celeris, quia dilatio est quaedam n'egatio; and then it is both justice and right.” Later in the explication of Chapter 29, Coke wrote that in conformity with the promise not to delay justice, all of .the King’s “commissions of oier, and terminer, of goale delivery, of the peace, &c. have this clause, facturi quod ad justitiam 'pertinet, secundum legem, and consuetudinem Angliae, that is, to doe justice and right, according to the rule of the law and custome of England ... .”

       See Warren, History of the American Bar 157-187 (1911); Meador, Habeas Corpus and Magna Carta 23-24 (1966).

       Quoted in Warren, op. cit. supra, n. 15, at 174.

       Quoted in Bowen, The Lion and the Throne 514 (1956).

       See Coke, op. cit. supra, n. 8, at A4 (Proeme).

       See 1 Rowland, The Life of George Mason 234-266 (1892)..

       See Va. Declaration of Rights, 1776, § 8.

       See Del. Const., 1792, Art. I, § 7; Md. Declaration of Rights, 1776, Art. XIX; Pa. Declaration of Rights, 1776, Art. IX; Va. Declaration of Rights, 1776, § 8. Mass. Const., 1780, Part I, Art. XI, provided:
      “Every subject of the commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. He ought to obtain .right and justice freely, and without being obliged to purchase it; completely, and without any'denial; promptly, and without delay; conformably to the laws.”
      This has been construed as guaranteeing to all citizens the right to a speedy trial. See Commonwealth v. Hanley, 337 Mass. 384, 149 N. E. 2d 608 (1958). A similar provision was included in the New Hampshire Constitution of 1784, Part I, Art. XIV.
      Kentucky, Tennessee, and Vermont, the three States which were admitted to the Union during the eighteenth century, specifically guaranteed the right to a speedy trial in their constitutions. See Vt. Const. 1786, c. I, Art. XIV; Ky. Const. 1792, Art. XII, § 10; Tenn. Const. 1796, Art. XI, § 9.


source: Caselaw Access Project

author: Mr. Justice Clark Mr. Justice Harlan,

license: Public Domain

text:
    FEDERAL TRADE COMMISSION v. JANTZEN, INC.
    No. 310.
    Argued February 14, 1967.
    Decided March 13, 1967.

      Ralph S. Spritzer argued the cause for petitioner. On the brief were Solicitor General Marshall, Assistant

      Attorney General Turner, Nathan Lewin, Howard E. Shapiro, James Mcl. Henderson and Thomas F. Howder.

      Edioin S. Rockefeller argued the cause for respondent. With him on the brief were Donald H. Green and Joel E. Hoffman.

   Mr. Justice Clark

delivered the opinion of the Court.

This case involves the effect of the Act of July 23, 1959, 73 Stat. 243 (Finality Act), upon orders issued by the Federal Trade Commission under § 11 of the Clayton Act, 38 Stat. 734, prior to the date of the former Act. The respondent claims that the Finality Act repealed the enforcement provisions of § 11 of the Clayton Act, 15 U: S. C. § 21 (1958 ed.), and that orders of the Commission entered prior to the enactment of the Finality Act are not now enforceable. The Court of Appeals agreed, held that it had no jurisdiction to enforce such orders and directed that the proceeding be dismissed. 356 F. 2d 253. In view of the pendency of almost 400 such orders and the conflict among the circuits on the point, we granted certiorari. 385 U. S. 810.

I.

The facts are not disputed, save on points not relevant here, and will not be stated in detail. Jantzen manufactures men’s, women’s, and children’s apparel. On September 4, 1958, it was charged by the Commission with having violated § 2 (d) of the Clayton Act by allowing discriminatory advertising and promotional allowances to certain of its customers. Jantzen did not answer the complaint. However, it Consented to the entry of a cease-and-desist order against it prohibiting further discrimination in advertising and promotional activities. This agreement and a form of order were approved by a hearing examiner and on January 16, 1959., the order was adopted by the Commission. On July 22, 1964, some five years after the adoption of the Finality Act, the Commission ordered an investigation into charges that Jantzen had violated the 1959 consent order. Jantzen stipulated before a hearing examiner that it had violated the consent order by granting discriminatory allowances to customers in Chattanooga, Temí., and Brooklyn, N. Y. The Commission thereafter concluded that Jantzen had violated the order. -It then applied to the Court of Appeals for an order affirming and enforcing the original order. The application was based on the provisions of the third paragraph of § 11 of the original Clayton Act, which authorized the Commission, in the event spch an order was not obeyed, to apply to a court of appeals for its “enforcement.” Jantzen claimed that the amendment of § 11 by the Finality Act resulted in a repeal of the Commission’s authority to seek, and the courts’ to grant, affirmance and enforcement of such orders. The Court of Appeals agreed and dismissed the application for lack of jurisdiction. We reverse and remand the proceedings for further consideration in light of this opinion.

II.

We start with the proposition that the Congress intended by its enactment of the Finality Act of 1959 to strengthen the hand of the Commission in the enforcement of the Clayton Act. As the report of the Committee on the Judiciary of the Senate stated: “The effectiveness of the Clayton Act . . . has' long been handicapped by the absence of adequate enforcement provisions. ... S. 726 would put teeth' into Clayton Act orders and would fill the enforcement void which has existed for many years.” S. Rep. No. 83, 86th Cong., 1st Sess., 2 (1959). The procedures existing prior to the adoption of the Finality Act required the Commission to investigate, and after complaint, prove a violation of the Clayton Act before it could issue a cease-and-desist order. After its issuance a violation of the order had to be investigated and proved before the Commission might obtain an order compelling its obédience. Only then could a court of appeals order enforcement. And under Federal Trade Comm’n v. Ruberoid Co., 343 U. S. 470 (1952), a contempt proceeding would not lie except on allegations of violation of the Act a third time and proof of a failure or refusal to obey the Commission’s order, previously affirmed.

The Finality Act eliminated these “laborious, time consuming, and very expensive” procedures. S. Rep. No. 83, supra, at 2. As Congressman Huddleston, one of the principal supporters of the bill which later became the Act, stated to the House:

“The bill ... is in effect a perfecting amendment to the Clayton Act. It has no other purpose than to effect the will of Congress with respect to the role of the Federal Trade Commission in Clayton Act enforcement in the same manner and to the same degree that the will of Congress was effectuated by the Wheeler-Lea amendments to the Federal Trade Commission Act.” 105 Cong. Rec. 12732.

The remarks of Congressman Celler, Chairman of the House Judiciary Committee, of Congressman Roosevelt and of other supporters of the bill were substantially the same. 105 Cong. Rec. 12730-12733.

The Wheeler-Lea Amendment clarified the procedures of the Federal Trade Commission Act but did not amend those of the Clayton Act. Under the Wheeler-Lea Amendment orders issued by the Commission were to become final 60 days after their issuance or upon affirmance by a court of appeals in which a petition for review had been filed. However, § 5 (a) of the Amendment expressly provided that orders outstanding at the time of the adoption of the Amendment would become final 60 days after the latter date or upon affirmance in review proceedings instituted during that 60-day .period. 52 Stat. 117. The Finality Act instead of using the language of § 5 (a) of the Wheeler-Lea Amendment contains' a special provision, § 2, which reads as follows:

“The amendments made by section 1 shall have no application to any proceeding initiated before the date of enactment of this Act under the third or fourth paragraph of section 11 of1 the [Clayton] Act .... Each such proceeding shall be governed by the provisions of such section as they existed on the day preceding the date of enactment of this Act.”

The Court of Appeals thought the use of this language was significant in that, unlike § 5 (a), it “does not deal with cease and desist orders issued before its effective date, nor provide for their becoming final within the meaning of ■ the amended Act. It deals solely with proceedings begun in a Court of Appeals .... Thus the third paragraph [of § 11] is expressly continued in effect for this very limited purpose, namely, the completion of proceedings for enforcement initiated by the Commission in a Court of Appeals... . . [T]his. is a strong indication that the Congress knew, and intended, that it was repealed for other purposes.” The Court of Appeals buttressed this reading of the Finality Act by noting that the Commission originally took the position “that existing Clayton Act orders would become final within 60 days, under the new law, just as under the Wheeler-Lea Act 356 F. 2d, at 257. See Sperry Rand Corp. v. F. T. C., 110 U. S. App. D. C. 1, 288 F. 2d 403 (1961); F. T. C. v. Nash-Finch Co., 110 U. S. App. D. C. 5, 288 F. 2d 407 (1961). From this, the court indicated that this change of position by the Commission pointed- up its conclusion that “the repeal in this case was express.” 356 F. 2d, at 257.

III.

We cannot agree. 'One error of the Court of Appeals seems to be the limited scope it gives the phrase “proceeding initiated before the date of enactment of this Act.” (Emphasis supplied.) The Court of Appeals thought this included only the application for enforcement under paragraph three or the petition for review under paragraph four of the original § 11 of the Act. We think not. We believe the word “proceeding” was used in the sense that it was employed throughout § 11 prior to the Amendment, namely the action brought by the Commission against the alleged violator of the Clayton Act. It follows that the “proceeding initiated” meant the filing of the “proceeding” before the Commission and was not limited to the application for enforcement or petition for review. This is made clear to us by the last sentence of § 2: “Each such proceeding shall be governed by the provisions of such section [§ 11 of the Clayton Act] as they existed on the day preceding the date of enactment of this Act.” We emphasize that here the Congress said “section^’ not paragraphs 3-7, inclusive, of the section. It follows that the provisions of the entire section were preserved intact and governed all orders predating the Finality Act. The apparent reason for this Variance from the procedure of the Wheeler-Lea Act was because of the heavy penalties which the Congress attached to the violation of final orders of the Commission under the Finality Act. It, therefore, wished to make clear that not only applications for enforcement of pre-Finality Act orders and petitions for review of such orders but any action of the Commission with reference to pre-Finality Act orders would be governed by the provisions of § 11 of the Clayton Act “as they existed on the day preceding the date of enactment of this [Finality] Act.” We believe that this interpretation is implicit in our opinion on the second review by this Court of Federal Trade Comm’n v. Henry Broch & Co., 368 U. S. 360 (1962), where Mr. Justice Brennan held that the 1959 amendments to § 11 of the Clayton Act “do not apply to enforcement of the instant order.” At 365. In note 5, on p. 365, the opinion pointed out that the order “was entered by the Commission on December 10, 1957. The procedures enacted by the 1959 amendments therefore do not apply to it. See Sperry Rand Corp. v. Federal Trade Comm’n, 110 U. S. App. D. C. 1, 288 F. 2d 403.” It is significant that Sperry Rand specifically held that “[enforcement due to any violation of the [pre-Finality Act] consent order which might occur is left to the provisions of the statute as they existed at the time the order was entered.” At 4, 288 F. 2d, at 406. Such a holding here is supported by the fact that the Finality Act nowhere denies the Commission the power to enforce preexisting orders. At most its provisions are silent with regard to such authority. Furthermore, the caption of the Finality Act itself as well as the legislative history gives added weight to our interpretation. The caption recites the purpose of the Act to be “to provide for the more expeditious enforcement of cease and desist orders . . . .” 73 Stat. 243. Such á purpose would certainly not include making approximately 400 orders dead letters. As we have noted previously the legislative history shows beyond contradiction that not only its sponsors but the responsible committees reporting the bill for passage believed “that this legislation will strengthen the enforcement provisions of section 11 of the Clayton Act ....”• S. Rep. No. 83, supra, at 3. Giving some 400 proven violators absolution from prior orders of the Commission would hardly comport with such a congressional intent. The Court of Appeals bottomed its opinion on the language used in the opening sentence of subsection (c) of the Finality Act reading that the “third, fourth, fifth, sixth, and seventh paragraphs of” § 11 of the Clayton Act “are amended to read as follows.” But we must read the Act as a whole as we have § 2 heretofore. And in so doing we cannot, as Mr. Justice Douglas said, ignore the “common sense, precedent, and legislative history” of the setting that gave it birth. United States v. Standard Oil Co., 384 U. S. 224, 225 (1966). And as Mr. Justice Holmes said many years ago:

“The Legislature has the power to decide what the policy of the law shall be, and if it has intimated its will, .however indirectly, that will should be recognized and obeyed. The major premise of the conclusion expressed in a statute, the change of policy that induces the enactment, may not be set out in terms, but it is not an adequate discharge of duty for courts to say: We see what you are driving at, but you have not said it, and therefore we shall go on as before.”' Johnson v. United States, 163 F. 30, 32 (1908).

But whether or not we are correct in our application and interpretation we have concluded that a sensible construction of the Finality Act compels the opposite result to that reached by the Court of Appeals. That- court would grant review and enforcement of proceedings under the old procedures where the petition for review or the application for enforcement was filed prior to the date of the enactment of the Finality Act but orders from which no petition or application was ever filed would not be capable of enforcement. This would subject violators who sought review to the sanctions of the section but those who had not sought review would be free to violate orders against them with impunity. Consequently, almost 400 separate violators would be forgiven. It is no answer to say that the Commission could file new complaints which would eome under the new procedures. The fact is that some 400 particularized orders written to correct specific mischief violative of the Clayton Act would be unenforceable. There is quite a difference between proving a violation of the Clayton Act and a failure to obey a specific order of the Commission. Long, tedious, and costly investigation, proof of injury to competition as well as other affirmative requirements necessary to the issuance of an order and many defenses such as cost justification, meeting competition,, exclusive dealing, etc., are all avoided. Particularly in merger cases would the enforcement of prior orders be simplified and expedited.

In view of all of these considerations we cannot say that the author of the Finality Act and its sponsors — all stalwart champions of effective antitrust enforcement— would have intended to strip the Commission of all of its enforcement vyeapons with reference to some 400 concerns already adjudged to be Clayton Act violators. Nor could we ascribe to a Congress that has so clearly expressed its will any such result. We.can only say that as between choices Congress rejected only one, namely, that of the Wheeler-Lea Act’s 60-day review provision. Certainly it intended that the old procedures would apply to proceedings on. petition for review or application for enforcement. There is no evidence that it intended to put the pre-1959 orders into the discard. We remain more faithful to the Act, we think, when we find that they too are enforceable under the old procedures.

Reversed and remanded.

Mr. Justice Harlan,

concurring.

While I confess to great difficulty in driving through thq statute to the Court’s conclusion, I am content to acquiesce in my Brother Clark’s opinion with the added help of the Second Circuit’s opinion in F. T. C. v. Standard Motor Products, Inc., 371 F. 2d 613.

       See Federal Trade Comm’n v. Pacific-Gamble-Robinson Co., No. 18260 (C. A. 9th Cir. 1962); Federal Trade Comm’n v. Benrus Watch Co., No. 27752 (C. A. 2d Cir. 1962), and the instant case.

       The penalties were raised to $5,000 for each day in which a violation continued.


author: Mr. Justice White Mr. Justice HaElan,

text:
    FEDERAL POWER COMMISSION v. UNITED GAS PIPE LINE CO. et al.
    No. 127.
    Argued January 11, 1967.
    Decided March 13, 1967.

      Howard E. Wahrenbrock argued the cause for petitioner in No. 127. With him on the brief were Solicitor

      General Marshall, Ralph S. Spritzer, Richard A. Posner and Richard A. Solomon.

      Reuben Goldberg argued the cause for petitioner in No. 128-i With him on the brief was George E. Morrow.

      Thomas Fletcher argued the cause and filed a brief for respondent United Gas Pipe Line Co. in both cases. William W. Brackett argued the cause for respondents Texas Eastern Transmission Corp. et al. in both cases. With him on the brief were Charles C. McDugald and Joseph F. Weiler. ,

      Conrad C. Mount, Jack Werner and Melvin Richter filed a brief for the Independent Natural Gas Association of America, as amicus curiae, urging affirmance.

      Together with No. 128, Memphis Light, Gas & Water Division v. United Gas Pipe Line Co. et al., also on certiorari to the same court.

   Mr. Justice White

delivered the opinion of the Court.

The question here is whether the Federal Power Commission, in the course of determining just and reasonable rates for United Gas Pipé Line Company (United) under .§ 4 (e) of the Natural Gas Act, 52 Stat. 822, 15 U. S. C. § 717c (e), made a proper allowance for federal income taxes in calculating the company’s cost of service. United claimed that in determining the cost of service its al-lowánce for federal income taxes should be at the full 52% rate, or $12,751,454, for the test year. The Commission disagreed because United w;as a member of an affiliated group which during the five-year period of 1957-1961 had elected to file consolidated returns for federal income tax purposes, a fact which in the Commission’s view required a reduced tax allowance in the company’s cost of service. Had consolidated returns not been filed during the .five-year period and had each company in the affiliated group instead filed separate returns, the total tax for the group would have been several million dollars more than was paid on a consolidated basis. This was so because on a consolidated basis consolidated losses serve to reduce consolidated income and because two members of the group, Union and Overseas, had net losses over the five-year period, thereby reducing taxes by $2,092,038 over those years.

To determine what the Commission considered the proper tax allowance for United’s rate base, it allocated the actual, consolidated taxes paid during the five-year period among the members of the group in accordance with a formula it had developed in Cities Service Gas Co., 30 F. P. C. 158, the order in which was set aside after issuance of the order in the instant case, 337 F. 2d 97. As so allocated, United’s annual share of the consolidated tax was 50.04% of its taxable income. Using this rate, the Commission allowed United $9,940,892 for federal income taxes instead of the $12,751,454 claimed by United. 31 F. P. C. 1180, 1191.

The Court of Appeals, relying on the decision of the Court of Appeals for the Tenth Circuit. in Cities Service Gas Co. v. FPC, 337 F. 2d 97, held “the tax allocation as made by the Commission’s order was contrary to the requirements which Congress had imposed,” 357 F. 2d 230, 231, and hence vacated and set áside the order. We reverse and remand to the Court of Appeals for further proceedings.

I.

In the Cities Service case the affiliated group filing the consolidated return was composed of both regulated and unregulated companies. Some of the unregulated companies had taxable income, others had even larger losses, and, therefore, as a group the unregulated companies showed a net loss over the representative years used by the Commission to forecast the future federal'income tax element of cost of service. The regulated companies as a group, on the other hand, had taxable income in the same period. On an unconsolidated basis the individual members of the affiliated group would have paid a considerably larger total tax than was actually paid on the consolidated basis. The gas company whose tax allowance for rate purposes was being determined claimed that it was entitled to the full 52% of its own taxable income. Its position was that the Commission had no power at all to apply any of the losses of unregulated companies to reduce its tax allowance and hence its rates. The tax allowance was thus to be figured at 52% without regard to the taxes actually paid by the affiliated group on a consolidated basis, seemingly even if the group paid no tax at all.

For the Commission, however, the only real cost to the regulated company was related to the consolidated tax actually paid and incurred in connection'with the other companies in the group. In the. Commission’s view, it was unacceptable to determine the cost of service on a hypothetical figure — to -fix jurisdictional'rates “on the basis of converting a hypothetical tax payment into a prudent operating expense.” 30 F. P. C., at 162. It refused to accept the argument that “Gas Company ratepayers should make Cities Service stockholders whole for the tax losses of nonregulated enterprises even though this means an allowance for taxes over and beyond that which the consolidated system as a whole actually paid.” Ibid. The Commission’s function, it said, was to fix just and reasonable rates, not to insure that other affiliates would be made whole for their tax losses out of income from regulated enterprises. Thus the task was “to. determine the proportion of the consolidated tax which is reasonably attributable to the Gas Company vis-a-vis the other Cities Service affiliates.” Ibid.

To make this determination, the Commission devised a formula which in effect applied the losses of unregulated companies first to the gains of other unregulated companies. If a net taxable income remained in the unregulated group, the regulated companies would not share .in the savings from the consolidated return and would be deemed to have paid a tax at the full 52% rate. But if losses of the unregulated companies exceeded their net income and hence reduced the taxes of the regulated group below what they would have paid had they filed separate returns, the consolidated tax paid would be allocated among the regulated companies in proportion to their taxable incomes. As applied to the facts in the Cities Service case, the formula resulted in a tax allowance of $5,866,847 rather than the $7,055,981 claimed by the Cities Service Gas Company.

The Court of Appeals set aside the Commission’s order. In its view, the addition of the gas company’s income to the consolidated return cost the affiliated group exactly 52% of the taxable income of the gas company, either in taxes paid or in. a reduction of loss carry-forwards or carrybacks. The Commission’s, formula as applied was therefore held to appropriate losses of unregulated companies and to exceed the Commission’s “jurisdictional limits which require an effective separation of regulated and nonregulated activities for the determination of the ingredients of the rate base . . . mean[ingj a separation of profits and losses between regulated and nonregulated businesses in determining the tax allowance includible in the cost of service of the regulated company.” 337 F. 2d 97, 101. Hence the court, relying on Colorado Interstate Gas Co. v. FPC, 324 U. S. 581, and Panhandle Eastern Pipe Line Co. v. FPC, 324 U. S. 635, set aside the Commission’s order.

i — i HH

In our view ^hat the Commission did here did not exceed the powers granted to it by Congress. One of its statutory duties is to determine just and reasonable rates which will be sufficient to permit the company to recover its costs of service and a reasonable return on its investment. Cost of service is therefore a major focus of inquiry. Normally included as a cost of service is a proper allowance for taxes, including federal income taxes. The determination of this allowance, as a general proposition, is obviously within the jurisdiction of the Commission. Ratemaking is, of course, subject to the. rule that the income and expense of unregulated and regulated activities should be segregated. But there is no suggestion in these cases that in arriving at the net taxable income of United the Commission violated this rule. Nor did it in our view in determining the tax allowance. United had not filed its own separate tax return. Instead it had joined with others in the filing of a consolidated return which resulted in the affiliated group’s paying a lower total tax than would have been due had the affiliates filed on a separate-return basis. The question for the Commission was what portion of the singlé consolidated tax liability belonged to United. Other members of the _group should not be required to pay any part of United’s tax, but neither should United pay the tax of others. A proper allocation had to be made by the Commission. Respondents insist that in making the allocation the Commission would violate the statute unless in every conceivable circumstance, including this one, United is' allowed an amount for taxes equal to what it would have paid had it filed a separate return. In their view United should never share in the tax savings inherent in a consolidated return, even if on a consolidated basis system losses exceed system gains and neither the affiliated group nor any member in it has any tax liability. This is an untenable position and we reject it. Rates fixed on this basis would give the pipeline company and its stockholders not only the fair return to which they are entitled but also the full amount of an expense never in fact incurred. In such circumstances, the Commission could properly disallow the hypothetical tax expense and hold that rates based on such an unreal cost of service would not be just and reasonable.

It is true that the avoidance of tax and the reduction of the tax alíbwance are accomplished only by applying losses of unregulated companies to the income of the regulated entity.. But the Commission is not responsible for the use of consolidated returns. It is the tax law which permits an election by an appropriate group to file on a consolidated basis. The members of a group, as in these cases, themselves chose not to file separate returns and hence, for tax purposes, to mingle profits and losses of both regulated and unregulated concerns, apparently deeming it more desirable to attempt to turn the losses óf some companies into immediate cash through tax savings rather than to count on the loss companies themselves having future profits against which prior losses could be applied,- Such a private decision made by the affiliates, including the regulated member, has the practical and.intended consequence of reducing the group’s federal income taxes, perhaps to zero, as was true of one of the years ¡involved in the Cities Service case. But when the out-of-pocket tax cost of the regulated affiliate is reduced, there is an immediate confrontation with the ratemaking principle that limits cost of service to expenses actually incurred. Nothing in Colorado Interstate or Panhandle forbids the Commission to recognize the actual tax saving impact of a private election to file consolidated returns. On the contrary, both cases support the power and the duty of the Commission to limit cost of service to real expenses.

We think that in the proper circumstances the Commission has the power to reduce cost of service, and hence rates, based on the application of non jurisdictional losses to jurisdictional income. Hence, the question becomes one of when and to what extent the tax savings flowing from the filing of a consolidated return are to be shared by the regulated'company. Or, to put it in the Commission's words the issue is one of determining “the proportion of the consolidated tax which is reasonably attributable to the gas company vis-a-vis [its] other . . . affiliates.” 30 F. P. C., at 162.

Viewing these cases in this light, we cannot say that the method the Commission chose to allocate the tax liability among the group members was erroneous or contrary to its statutory authority. Under its formula, the net losses and net income of unregulated companies are first set off one against the other, and the tax savings made possible by losses of unregulated enterprises are thus first allocated to the unregulated companies. Only if “unregulated” losses exceed “unregulated” income is the regulated company deemed to have enjoyed a reduction in its taxes as a result of the consolidated return. If there is more than one regulated company in the group, they will share the tax liability or tax saving in proportion to their taxable income.

It is true that the Commission includes in the regulated group companies which are regulated not by it but by state or local authorities and that under the Commission’s formula enterprises not subject to its jurisdiction may be required to share the tax saving with the federally regulated concern. But we know of nothing in the decisions or the statutes governing the ratemaking activities of the Commission which dictates priority for the state-regulated company or which provides that the jurisdictional company may share in the tax saving only if the saving exceeds the separate-return tax liability of the state-regulated company. One could as well argue-that for ratemaking purposes the company subject to federal regulation should have the first benefit of the tax saving. The Commission’s formula, of course, prefers neither concern but allocates the tax liability equitably between each regulated member, without regard to the source of the regulation. “When Congress, as here, fails to provide a formula for the Commission to follow, courts are not warranted in rejecting the one which the Commission employs unless it plainly contravenes the statutory scheme of regulation.” Colorado Interstate Gas Co. v. FPC, 324 U. S. 581, 589. “If the total effect of -the rate order cannot be said to be unjust and unreasonable, judicial inquiry under the Act is at an end. The fact that'the method employed to reach that result may contain infirmities is not then important.” FPC v. Hope Natural Gas Co., 320 U. S. 591, 602.

There is no frustration of the tax laws inherent in the Commission’s action. The affiliated group may continue to file consolidated returns and through this mechanism set off system losses against system income, including United’s fair return income. The tax law permits this, but it does not seek to control the amount of income which any affiliate will have. Nor does it attempt to set United’s rates. This is the function of the Commission, a function performed here by rejecting that part of the claimed tax expense which was no expense at all, by reducing cost of service and therefore rates, and by allowing United only a: fair return on its investment.

Nor did the Commission “appropriate” or extinguish the losses of any member of the affiliated group, regulated or unregulated. Those losses may still be applied to system gains and thereby be turned into instant cash. United may, of course, have less income than it did. If so, this will correspondingly reduce the opportunity of the affiliated group to use the losses of unregulated companies to appropriate United’s income for the benefit of non-jurisdictional activities because United’s income will no longer offset the same amount of losses which it once did. But the losses of unregulated companies are in no way destroyed. They remain with the system, readily available to reduce the taxes of the profitable affiliates to the maximum extent allowed by the tax law.

Another matter deserves some comment. It is said here that the Commission, in applying its tax allowance formula, erroneously failed to recognize and to take account of the fact that United has both jurisdictional and non jurisdictional activities and income. Although this is a matter which might affect the results achieved in application of the Commission’s formula, it is one to which the Court of Appeals has not addressed itself, and we think it appropriate for the issue to be raised there if the parties are so inclined.

For the reasons stated herein, the judgment of the Court of Appeals is reversed and the cases remanded for further proceedings consistent with this opinion.

It is so ordered.

Mr. Justice Fortas took no part in the consideration or decision of these cases.

Mr. Justice HaElan,

whom Mr. Justice Douglas and Mr. Justice Stewart join,

dissenting.

My analysis of the elusive issue involved in these cases leads me to different conclusions from those reached by the Court and to agreement with the result reached by the Court of Appeals on the facts of these cases.

We are presented here with the problems of resolving au apparent conflict between the consolidated tax return provisions of the Internal Revenue Code, which permit an affiliated group of corporations, in this instance having some activities within and some without the Federal Power Commission’s jurisdiction, to be treated as a “business entity” for tax purposes, and the Natural Gas Act which imposes on the Commission the duty of observing “the fundamental rate making principle [that] ... requires a separation between regulated and unregulated costs and revenues.” Cities Service Gas Co., 30 F. P. C. 158, 162. The Court holds that the FPC may resolve the apparent dilemma by working only with “the single consolidated tax liability” and determining by allocation what portion should be attributed to United for rate-making purposes. By filing a consolidated return the members of the affiliated group are said “ta.mingle profits and losses of both regulated and unregulated concerns” and thus create the necessity for allocation. The only serious problem the Court sees is the resolution of the question “when and to what extent the tax savings flowing from the filing of a consolidated return are to be shared by the regulated company.” And the Court attempts to sidestep sharp analysis of that problem by resorting to the principle that, in ratemaking, the end in effect justifies the means.

As will.be devéloped more fully below, I think that the Court’s resolution of the jurisdictional issue, while possessing a certain surface plausibility, mistakes the operation of the tax laws and permits th'e Commission to place regulatory pressure on entities and business decisions wholly outside its jurisdiction under the Natural Gas Act. I think also that the Commission’s formula cannot be upheld even under the Court’s jurisdictional analysis. The formula indefensibly undercuts the policy of the tax laws, and thus cannot be considered a means of reaching “just and reasonable” rates. Cf. El Paso Natural Gas Co. v. FPC, 281 F. 2d 567.

I-

The Court’s “single consolidated tax liability” approach ignores the fact that what is consolidated is corporate taxable incomes rather than the underlying revenues and deductions. Thus what has happened in this case is not the imposition of a single tax liability on the activities, as a whole, óf the affiliated corporate group, but the reduction of the sum of separate 52% corporate tax liabilities by the setoff of tax losses against taxable income. Certainly there can be no contention that United would be entitled to anything other than a 52% of taxable income tax expense for ratemaking purposes absent tax losses in the consolidated group. The only question that properly arises on this record is whether the Commission could consider any setoff to have been made against United’s tax liability for ratemaking purposes when nonjurisdictional activities could have taken full advantage of the setoffs-belonging to the group and the group desired to allocate them to those activities.

The “tax’losses” belonging to the group arose almost exclusively from the . excess of depletion allowances over •' revenues in the accounts ofthe nonjurisdictional activities of Union and Overseas. . Such allowances belonged to Union and Overseas and those corporations were entitled, to their exclusive use. By agreeing to the consolidated return Union and Overseas agreed to deliver to the group, in any taxable 7/ear, whatever deductions they themselves could not then utilize in their own re- . turns. The question how to allocate the benefit of those deductions among the members of the group would seem to be one for the group rather than the Commission when, as here, they do not arise from jurisdictional activities and can be used by group members to offset other nonjurisdictional gains. The courts have allowed good-faith business decisions to control such allocations for the vital purpose of determining which corporations shall pay the tax. See Case v. New York Central R. Co., 15 N. Y. 2d 150, 204 N. E. 2d 643. And the tax Commissioner would permit the group to allocate for earnings and profits purposes in precisely the manner the group has chosen here. Although these decisions cannot control for ratemaking purposes, they do make it clear that the Commission’s assertion of jurisdiction to make an allocation amounts to an order that certain nonjurisdictional assets be delivered up to jurisdictional use since there is no other compulsion for such an allocation. The Court asserts that “[o]ne could as well argue that for ratemak-ing purposes the company subject to federal regulation should have the first benefit of the tax saving.” But no authority or reason is given in support of this assertion, and, in my opinion, none can be found. The Commission has no authority to control the disposition of nonjuris-dictional assets or the revenues or losses arising therefrom.

A parallel example will make even clearer the jurisdictional violation arising from the Commission’s action here. If Union or Overseas had found itself with an excess quantity of steel pipe useful to all members of the group and had to negotiate its sale at a discount, one could hardly “as well argue that for ratemaking purposes” United should be credited with the discount purchase when the pipe had been sold to Gas Corporation and United had been forced to purchase pipe- on the market. And it could not be asserted that the Commission would have authority to order the transfer of the discount pipe to United.

.The far-reaching nonjurisdictional impact of the Commission’s ruling gives further evidence that its action was one which Congress could not have contemplated and would not have condoned. As the dissenting Commissioners pointed out in the Cities Service Gas Co. proceeding, 30 F. P. C., at 175, the Commission has made-jurisdictional rates turn on the corporate form assumed by nonjurisdictional activities. If, for example, the group had -separately incorporated its nonjurisdictional operations, they would have shown taxable income in filing the consolidated return and no ratemaking allocation would be forthcoming. Similarly, since the Commission regulations themselves require separation of jurisdictional and nonjurisdictional operations within a single corporation, all the affiliates could merge into United and since nonjurisdictional activities would show a net taxable income, United would receive a 52% tax 'expense for ratemaking purposes. The congressional purpose in allowing consolidated returns was to eliminate exactly this kind of dependence on corporate form and leave corporations free to continue business in whatever corporate form best suited them. See, e. g., S. Rep. No. 960, 70th Cong., 1st Sess., p.', 14. The congressional purpose in passing the Natural Gas Act was to prevent exploitation of the natural gas consumer. It was not to prevent natural gas companies from fully developing their non-, jurisdictional opportunities, nor to control in any way the form of those activities, nor to appropriate non jurisdictional assets for the benefit of consumers. Colorado Interstate Gas Co. v. FPC, 324 U. S. 581, 593-594.

The Court focuses its analysis on a case, not presented here, in which there are net non jurisdictional losses and the consolidated tax liability is thus less than 52% of the taxable income of the jurisdictional activity. In such a case it is clear that non jurisdictional assets are being used for tax purposes by the jurisdictional activity and it would blink reality not to recognize this use for ratemaking purposes, just as it would be wholly improper not to recognize the lower cost of discount pipe when a jurisdictional activity actually purchased it from a non-jurisdictional affiliate. When the group’s election to file consolidated returns, or its intercorporate arrangements, require that non jurisdictional deductions be utilized to set off jurisdictional income then, and only then, can there, in my opinion, be allocation. That, however, is not the situation here where nonjurisdictional income was fully capable of absorbing all nonjurisdictional losses.

II.

■ In a well-reasoned opinion in El Paso Natural Gas Co. v. FPC, 281 F. 2d 567, the court held that the Commission properly took account of depletion allowances arising from jurisdictional activities in fixing rates. The gas company there had argued that since Congress intended by the allowance to encourage exploration its benefit could not be passed on to the ratepayers. The court rejected that argument because it concluded that the proper place to reflect the congressional policy was in the ultimate rate of return allowed the company. It made explicit, however, that the Commission could not fail to take account of the congressional policy.

The Court’s opinion departs from that sound analysis by sustaining a formula which allocates the entire “tax saving” to the “regulated” corporations and thus fails to take account of the congressional desire to benefit the loss corporations by allowing the profit corporations to retain earnings which could be passed on to them. The consolidated return is the horizontal equivalent of the vertical loss carry-forward and carryback provisions of the Internal Revenue Code. • It allows the “business unit” ■ to recoup from the Government some of the loss which has been sustained and, in the words of Mr. Justice Jackson, “it is probable that the intention . . . was to provide salvage for the loser . , .'.” Western Pacific Railroad Case, 345 U. S. 247, 277 (dissenting opinion). Any rate formula which does not provide a means of allocating benefit to the loss corporation cannot then be' “just and reasonable.” And if the group as a whole does not benefit from consolidation because the setoff advantages of losses are absorbed by the “regulated” corporations and passed on to the ratepayers, it is most uplikely that the loss corporations will achieve the benefit Congress intended them to have.

The Court recognizes the adverse effect on the benefits flowing to the loss corporations, but contends there is no frustration of the tax laws because the losses “remain with the system, readily available to reduce the taxes of the profitable affiliates . . . But this hypothetical “availability” is meaningless for the “instant cash” produced by the losses is passed on to the ratepayers rather than, as the tax laws intend, to the loss corporations. The fact that the' group’s tax payment is lower will not satisfy the intent behind the revenue provisions which was not to reduce government collections but to increase resources available to the business unit.

m.

To summarize, I think, first, that no allocation whatever could be reqtiired by the Commission in these cases because nonjurisdictional income was more than sufficient to absorb all nonjurisdictional losses , and there was no showing that jurisdictional activities would actually benefit from nonjurisdictional losses. To permit the FPC in such circumstances to allocate would in effect extend the Commission’s jurisdiction to areas not encompassed within the authority given the Commission by the Natural Gas Act. While the basic purpose of the Act is, of course ,.⅜⅛ protect ratepayers, Congress has not carried that protection so far as to allow them to -share in the benefits of the nonjurisdictionál activities of a jurisdictional corporation or those of its corporate affiliates — a result which today’s decision permits the Commission to achieve.

Second, in instances where the Commission may allocate, it seems to me that any allocation formula that does not take account of the underlying policy of the tax statute would “plainly [contravene] the statutory scheme of regulation.” Colorado Interstate Gas Co. v. FPC, supra, at 589.

Third, while, I thus agree with the Court of Appeals that United, on this record, is entitled to have its rates calculated on the premise of a full 52% tax liability, I cannot subscribe to such intimations as there 'may be in the opinion relied upon by that court that the Commission may never allocate in'a consolidated tax situation.

I would affirm the judgment of the Court of Appeals.

       The election was pursuant to the privilege granted in § 1501 of the Internal Revenue Code of 1954, 26 U. S. C. § 1501. The other members of the affiliated group are United Gas Corporation, which wholly owns United and which is a gas distribution company subject to state and local regulation, and-two other wholly owned subsidiaries of United Gas Corporation — Union Producing Company (Union), a domestic oil and gas producer whose interstate sales of gas are subject to the jurisdiction of the Federal Power Commission, and United Overseas Production Company (Overseas) which engaged in oil exploration in foreign countries.

      “[T]he proper method to be applied in computing the Federal income taxes to be, included in the cost of service of a regulated company where that company has joined in a consolidated tax return with affiliates is (1) separate the companies into regulated and unregulated groups, (2) determine the net aggregate taxable income of each group, and (3) apportion the net total consolidated tax liability over a representative period of time between the two groups, and among the companies in the regulated group, on the'basis of their respective taxable incomes; provided that the allowance so computed for the regulated company shall not exceed what its tax liability would be for rate making purposes, if computed on a separate return basis.” 30 F. P. C. 158, 164.
      As the Commission noted, id., at 162, it could draw little from the experience of state and local regulatory bodies dealing with the question whether the losses of affiliates should be taken into account in determining the tax allowance for regulated enterprises since the state and local solutions had not been consistent. It does not appear that the Commission drew on its own experience, although with a single exception the Commission seems to have accounted for consolidated tax' savings in past ratemaking proceedings. See Penn-York Natural Gas Corp., 5 F. P. C. 33, 39 (1946); Hope Natural Gas Co., 10 F. P. C. 583, 612, aff’d, 10 F. P. C. 625 (1951); Atlantic Seaboard Corp., 11 F. P. C. 486, 515, aff’d, 11 F. P. C. 43, remanded on other grounds, 200 F. 2d 108 (1952); United Fuel Gas Co., 12 F. P. C. 251 (1953); Hope Natural Gas Co., 12 F. P. C. 342, 347 (1953); Home Gas Co., 13 F. P. C. 241, 246 (1954); United Fuel Gas Co., 23 F. P. C. 127, 134 (1960). But see Olin Gas Transmission Corp., 17 F. P. C. 685 (1956).

       See Colorado Interstate Gas Co. v. FPC, 324 U. S. 581, 604-605; Panhandle Eastern Pipe Line Co. v. FPC, 324 U. S. 635, 648-649; El Paso Natural Gas Co. v. FPC, 281 F. 2d 567, 573, cert. denied sub nom. California v. FPC, 366 U. S. 912; Alabama-Tennessee Natural Gas Co. v. FPC, 359 F. 2d 318, 331, cert. denied, 385 U. S. 847.

       That some sharing of the tax savings with nonfederally regulated companies was in order seems to have been recognized by the members of the affiliated group. Under the internal allocation formula employed by the group, the tax liability assigned to United represented an effective tax rate of 48.8%.

       26 U. S. C. §§ 1501-1506.

       “The permission to file consolidated returns by affiliated corporations merely recognizes the business entity as distinguished from the legal corporate entity of the business enterprise.” S. Rep. No. 960, 70th Cong., 1st Sess., p. 14. ,.

       The Court’s opinion seizes on the language of FPC v. Hope Natural Gas Co., 320 U. S. 591, 602,, for the proposition that judicial inquiry must be at an end when it is determined that a rate order “cannot be said to be unjust and unreasonable.” But the problem before the Court in that case was an entirely different one. There it was argued that the Court was obligated to delve into the details of an initial ratemaking in order to determine whether certain rates were reasonable. The Court held that in an' initial rate-making the essential question was only whether the return actually allowed permitted the company'to sustain itself in the market. The Court noted that it could not become involved in questions of “fair value” because “the value of the going enterprise depends on earnings under whatever rates may be anticipated.” Id., at 601. Nothing in Hope Natural Gas suggests that courts are powerless to review a particular formula to determine whether it is based on rational criteria. A return which, is “just and reasonable” must reflect underlying • congressional policies. Thus courts have not hesitated to review the underlying rationales of Commission decisions while giving due deference to the Commission’s discretion. See, e. g., Tennessee Gas Transmission Co. v. FPC, 293 F. 2d 761; United Gas Imp. Co. v. FPC, 290 F. 2d 133; Detroit v. FPC, 97 U. S. App. D. C. 260, 230 F. 2d 810.

       Thus despite the Court’s “single consolidated tax liability” phraseology,' I am certain that the Court does not mean to imply that the Commission may allocate by any criterion other than taxable incomes. The Court cannot mean to suggest that, for example, the Commission is empowered to allocate by gross revenues and thus consider special deductions belonging to nonjurisdictional activities as allocable for ratemaking purposes when the nonjurisdictional activity is fully capable of using them.

       In determining what it considered to be the properly allocated percentage of “tax saving” for ratemaking purposes the Commission utilized a five-year average (1957-1961) to eliminate the effects of short-term fluctuation.. During that period, the total tax losses of Union and Overseas were $3,893,980. The total taxable income of Gas Corporation; all of which was nonjurisdictional, was $9,024,170. Moreover, 56% of United’s taxable income of $105,290,983 was non-jurisdictional, Thus even in the two years, 1960 and 1961, when the tax losses of Union arid Overseas exceeded the taxable. income of Gas Corporation, the group’s nonjurisdictional taxable income , was more than sufficient to offset all tax losses.
      The Court notes the observation, made by the FPC in its brief, p. 26, that United reflected a “tax saving” on its books. This statement is somewhat misleading since .it is directed to the aHoda- - tion made for earnings and profits tax purposes under 26 U. S. C. § 1552. (a)(1) and that allocation bears no necessary relation to the . actual allocation of liability for corporate purposes. Exhibit 14-1 reveals that, on the. basis of. allocated liability for corporate purposes, United had an average effective tax rate of 51.749% for the test years.
      Moreover;- the allocation of setoffs in the 1957-1961 period has no direct relevance to the issue in this case for the Commission was not engaged in analyzing rates for that period. The rates under scrutiny were those United proposed to charge in the future. If the Commission had found that United actually intended to allocate, setoffs to its jurisdictional operation for corporate purposes while attempting to take a full 52% tax expense deduction for ratemaking purposes, the Commission might well have been justified in recognizing the setoffs for ratemaking purposes to the extent- .that United actually utilized them. On this reeord, it is clear that the Commission did not make any such finding.

       26 U. S. C. § 1501 requires that all of the affiliated corporations consent to the filing of the consolidated return.

       Proposed Treas. Reg. § 1.1502-33 recently promulgated by the Commissioner of Internal Revenue makes this a permissible means *• of' allocation. 31 Fed. Reg. 16788-16789.

       And this nonjurisdictional decision would seem outside the Commission's control even if it were influenced by the fact that United could benefit less from the lower price because the ratepayers would absorb the benefit. -Union and Overseas have no duty to act for the benefit of United’s ratepayers. And if United were to join in a group compact agreeing to this allocation of excess pipe with the proviso that the excess would be sold to. United in the absence of other needs, the decision would seem perfectly justifiable. United’s contingent benefit would be .more 'than it would have outside the compact, and since United has no right to compel the nonjuris-dictional corporations to deal with it, United would not have surrendered anything. See Case v. New York Central R. Co., 15 N. Y. 2d 150, 204 N. E. 2d 643.

       It should be noted as well that this example makes clear that it is entirely normal rór United to be expected to pay for the acquisition of the asset, and thus some consideration should pass to Union and Overseas. This, point is further developed in Part II of this opinion.

       Title 18 CFR § 154.63 (f) which deals with joint facilities requires allocation of expenses between jurisdictional and nonjuris-dietional activities.

       This formulation is, of course, very similar in form to that-utilized by the Commission. The essential difference lies in the fact that the Commission substituted the concept of a “regulated corporation’’ for that of a jurisdictional activity. The regulated-unregulated division made by the Commission has no basis in the Natural Gas Act.

       The Commission has argued that, the intended benefit can be disregarded in this case .because the loss corporations are in that category for tax purposes solely because" of depletion allowances and are actually profitable in economic terms. While this argument might be thought to1 have some force, it is not for us to decide that the depletion allowances Congress has authorized are-not real costs of. carrying" on the business.

       The Commission, if not the Court, was aware of this problem. In its petition for certiorari, p. 10, n. 8, the Commission recognized that “[tjhere" may indeed be problems in the application of . a formula which may result in allocating the entire tax saving resulting from losses on unregulated activities to the regulated members of the consolidated group.” The Commission has not attempted to justify its formula to this Court.

       Since, in my view, no allocation is permissible in the circumstances of these cases, as a matter of law, a remand to the FPC is unnecessary. Under the Court’s view, however, such a remand would appear to be the appropriate disposition. The Court’s “single consolidated tax liability” jurisdictional formulation is essentially the “fused mass” theory proposed by the Commission staff and rejected by the Commission for jurisdictional reasons. Cities Service Gas Co., 30 F. P. C. 158, 160. The Commission should at least be required to re-examine the matter under the Court’s jurisdictional premises. SEC v. Chenery Corp., 318 U. S. 80; Connecticut Light & Power Co. v. FPC, 324 U. S. 515, 534. In any event, I cannot understand the Court’s remand to the Court of .Appeals, the Commission’s power to allocate and its allocation formula having alreadj' been upheld by this Court.


author: Per Curiam.

text:
    SWENSON, WARDEN v. BOSLER.
    No. 759.
    Decided March 13, 1967.

      Norman H. Anderson, Attorney General of Missouri, and J. Gordon Siddens and Howard L. McFadden, Assistant Attorneys General, for petitioner.
   Per Curiam.

Petitioner seeks certiorari from a judgment of the Court of Appeals holding invalid under the doctrine of Douglas v. California, 372 U. S. 353, the State of Missouri’s former practice of deciding direct criminal appeals by convicted indigent defendants without the appointment of appellate counsel. We grant the writ of certiorari and, for the reasons below, we affirm.

Under Missouri criminal practice, a convicted defendant’s motion for new trial must set forth in detail his specific' grounds for relief; and in general, a Missouri appellate court may not consider on appeal questions which were not first presented to the trial court in a motion, for new trial. See State v. Mallory, 336 S. W. 2d 383 (Mo. Sup. Ct.), cert. denied, 364 U. S. 852; State v. Davis, 251 S. W. 2d 610, 615-616 (Mo. Sup. Ct.); Mo. Sup. Ct. Rule Crim. Proc. 27.20. Prior to March 1,1964, Missouri had no rule requiring appointment of appellate counsel for indigent defendants. If trial counsel filed a motion for new trial and ñotice of appeal and then withdrew from the case, the Supreme Court of Missouri would require preparation of. the transcript for appeal and then would consider the questions raised by the motion for new trial on the basis of pro se briefs by the defendant-appellant, or on no briefs at all. This is what occurred in this case. We agree with the Court of Appeals that this procedure violated respondent’s Fourteenth Amendment rights, as defined in Douglas, even though respondent’s trial counsel filed the notice of appeal and a motion for new trial which specifically designated the issues which could be considered on direct appeal. The assistance of appellate counsel in preparing and submitting a brief to the appellate court which defines the legal principles upon which the claims of error are based and which designates and interprets the relevant portions of the trial transcript may well be of substantial benefit to the defendant. This .advantage may not be denied to a criminal defendant, solely because of his indigency, on the only appeal which the State affords him as a matter of right.

Petitioner contends that, since the District Court did not hold a hearing to determine whether respondent actually requested the appointment of appellate counsel, the record as it presently exists does not support the Court of Appeals’ express conclusion that respondent did make such a request. Respondent included in the appendix to his petition to the District Court a copy of the full transcript of his.Missouri trial, the accuracy of which petitioner does not contest. We think the documents contained in this transcript demonstrate that respondent did indicate to the Missouri courts his desire for counsel on appeal. But even if such a request had not been made, we do not think its absence would amount, to a waiver of respondent’s rights. It is now settled “that where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request.” Carnley v. Cochran, 369 U. S. 506, 513. When a defendant whose indigency and desire to appeal are manifest does not have the services of his trial counsel on appeal, it simply cannot be inferred from defendant’s failure specifically to request appointment of appellate counsel that he has knowingly and intelligently waived his right to the appointment of appellate counsel.

Affirmed..

      On July 9, 1963, after the Douglas decision, Missouri altered its appellate practice by adding Subsection (c) to Rule 29.01' of the. Supreme Court’s Rules of Criminal Procedure, effective March 1, 1964:
      ■ “(c) When a defendant is convicted of a felony, is sentenced therefor and desires to appeal, if it appears from a showing of indigency that the defendant is unable to employ counsel the trial court shall appoint counsel to represent him upon such appeal; such counsel may, in the discretion of the court, be the same counsel who represented the defendant at the trial or other counsel.”


text:
    HESTER v. SWENSON, WARDEN.
    No. 397,
    Misc.
    Decided March 13, 1967.
    Petitioner pro se.

      Norman H. Anderson, Attorney General of Missouri, and Howard L. McFadden, Assistant Attorney General, for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the Supreme Court of Missouri for further consideration. Swenson v. Bosler, ante, p. 258; Eskridge v. Washington State Board of Prison Terms and Paroles, 357 U. S. 214; Tehan v. Shott, 382 U. S. 406, 416.


text:
    YOUNG v. UNITED STATES BOARD OF PAROLE.
    No. 1193,
    Mise.
    Decided March 13, 1967.
    Appellant pro se.

      Solicitor General Marshall, Assistant Attorney General Vinson and Beatrice Rosenberg for appellee.
   Per Curiam.

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


author: . Per Curiam.

text:
    ALTERMAN TRANSPORT LINES, INC., et al. v. PUBLIC SERVICE COMMISSION OF TENNESSEE et al.
    No. 942.
    Decided March 13, 1967.

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

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

The judgment is affirmed.

Mr. Justice Stewart is of the opinion that probable jurisdiction should be noted.


text:
    HOLLIS v. CALIFORNIA.
    No. 46,
    Mise.
    Decided March 13, 1967.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case remanded for further consideration in light of Chapman v. California, ante, p. 18.

Mr. Justice Stewart would grant certiorari and reverse the judgment for the reasons stated in his opinion concurring in the result .in Chapman v. California, ante, at 42.


text:
    RICKS v. CALIFORNIA.
    No. 36,
    Mise.
    Decided March 13, 1967.

      Caryl Warner for petitioner.
   Per Curiam.

The motion for leave to proceed in forma 'pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case remanded for further consideration in light of Chapman v. California, ante, p. 18.

'Mr. Justice Stewart would grant certiorari and reverse the judgment for the reasons stated in his opinion concurring in the result in Chapman v. California, ante, at 42.


text:
    FONTAINE v. CALIFORNIA.
    No. 50,
    Mise.
    Decided March 13, 1967.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case remanded for further consideration in light of Chapman v. California, ante, p. 18.

Mr. Justice Stewart would grant certiorari and reverse the judgment for the reasons stated in his opinion concurring in the result in Chapman v. California, ante, at 42..


text:
    HAENDIGES v. FORD.
    No. 925.
    Decided March 13, 1967.

      Leonard P. Gilbert for appellant.

      Lawrence E. Stewart .for appellee.
   Per Curiam.

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


text:
    ANDERS v. CALIFORNIA.
    No. 12,
    Mise.
    Decided March 13, 1967.
    Petitioner pro sé. .

      Thomas G. Lynch, Attorney General of California, William E. James, Assistant Attorney General, and George J. Roth, Deputy Attorney General, for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are' granted. The judgment is vacated and the case remanded for further consideration in light of Chapman v. California, ante, p. 18.

Mr. Justice Stewart would grant certiorari and reverse the judgment for the reasons stated in his opinion concurring in the result in Chapman v. California, ante, at 42.


text:
    TETTAMBLE v. MISSOURI.
    No. 32,
    Mise.
    Decided March 13, 1967.
    Petitioner pro se.

      Norman H. Anderson, Attorney General of Missouri, and Harold L. McFadden, Assistant Attorney General, for respondent.
   Per Curiam.

The motion for leave to proceed in jornia pauperis and the petition for- a writ of certiorari are granted. The judgment is vacated and the case is remanded to the Supreme Court of Missouri for further consideration in light of Swenson v. Bosler, ante, p. 258.


text:
    HUDGINS v. CALIFORNIA.
    No. 37,
    Mise.
    Decided March 13, 1967.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded for further consideration in light of Chapman v. California, ante, p. 18.

Mr. Justice Stewart is of the opinion that certiorari should be denied because the petition was not timely filed.


text:
    FORD v. CALIFORNIA.
    No. 140,
    Mise.
    Decided March 13, 1967.
    _Petitioner -pro se.

      Thomas C. Lynch, Attorney General of California, William E. James, Assistant Attorney Géneral, and Philip C. Griffiin, Deputy Attorney General, for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case remanded for further consideration in light of Chapman v. California, ante, p. 18.

Mr. Justice Stewart would grant certiorari and reverse the judgment for the reasons stated in his opinion concurring in the result in Chapman v. California, ante, at 42.


text:
    NIELSEN v. NEBRASKA STATE BAR ASSOCIATION.
    No. 1180,
    Mise.
    Decided March 13, 1967.
   Per Curiam.

Thé appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was' taken as a petition for a writ of certiorari, certiorari is denied.


text:
    WHEATON v. CALIFORNIA.
    No. 46.
    Decided March 13, 1967.

      Byron J. Walters for petitioner.

      Thomas- C. Lynch, Attorney General of California,' William E. James, Assistant Attorney General, and G. Anthony Collins, Deputy Attorney General, for respondent.
   Per Curiam.

The petition for a writ of certiorari is granted. The judgment is vacated and the case remanded for further consideration in the light of Chapman v. California, ante, p. 18.

Mr. Justice Stewart would grant certiorari and reverse the judgment for the reasons stated in his opinion concurring in the result in Chapman v. California, ante, at 42.


text:
    WACKENHUT CORP. et al. v. APONTE, SUPERINTENDENT OF POLICE, et al.
    No. 726.
    Decided March 13, 1967.

      Donald M. Hall for Wackenhut Corp. et al., and William B. Graves for Marvil International Security Services, Inc., appellants.

      J. B. Fernandez Badillo, Solicitor General of Puerto Rico, and Peter Ortiz, Assistant Solicitor General, for appellees.
   Per Curiam.

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


text:
    CITY OF GALVESTON et al. v. UNITED STATES et al.
    No. 827.
    Decided March 13, 1967.

      Harold E. Spencer and Nuel D. Belnap for appellants in No. 827. Don McDevitt, Sterling W. Steves, Harvey Huston and Milton E. Nelson, Jr., for appellants in No. 828.

      Solicitor General Marshall, Assistant Attorney General Turner, Howard E. Shapiro, Irwin A. Seibel, Robert W. Ginnane and Leonard S. Goodman for the' United States et al. in both cases. Frank A. Leffingwell for appellees Nueces County Navigation District No. 1 et al. in both cases.

      Together with No. 828, Atchison, Topeka & Santa Fe Railway Co. et al. v. United States et al., also on appeal from the same court.

   Per Curiam.

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


text:
    LOUISIANA et al. v. UNITED STATES.
    No. 938.
    Decided March 13, 1967.

      Jack P. F. Gremillion, Attorney General of Louisiana, and Thomas W. McFerrin and William P. Schuler, Assistant Attorneys General, for appellants.

      Solicitor General Marshall, Assistant Attorney General Doar and Alan G. Marer for the United States.
   Per Curiam.

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

Mr. Justice Black and Mr. Justice White are of the opinion that probable jurisdiction should be noted and the case set for hearing.


author: Per Curiam. '

text:
    DAUGHERTY v. CALIFORNIA.
    No. 19,
    Mise.
    Decided March 13, 1967.
    Pétitioner pro- se.

      Thomas C. Lynch, Attorney General of California, William E. James, Assistant Attorney General, and C. Anthony Collins, Deputy Attorney General, for respondent.
   Per Curiam. '

The motion for leave to proceed in Jorma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case remanded for further consideration in light of. Chapman v. California, ante, p. 18.

Mr. Justice Stewart would grant certiorari and reverse the judgment for the reasons stated in his opinion concurring in the result in Chapman v. California, ante, at 42.


text:
    GARNER v. CALIFORNIA.
    No. 22,
    Mise.
    Decided March 13, 1967.
    Petitioner pro se.

      Thomas C. Lynch, Attorney General of California, and Robert R. Granucci and John F. Kraetzer, Deputy Attorneys General, for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the .petition for a writ of certiorari are granted. The judgment is vacated and the case remanded for further consideration in light of Chapman v. California, ante, p. 18.

Mr. Justice Stewart would grant certiorari and reverse the judgment for the reasons stated in his opinion concurring in the result in Chapman v. California, ante, at 42.


text:
    ERB v. CALIFORNIA.
    No. 23,
    Mise.
    Decided March 13, 1967.

      William A. Dougherty for petitioner.

      Thomas C. Lynch, Attorney General of California, William E. James, Assistant Attorney General, and David B. Stanton, Deputy Attorney General, for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the casé remanded for further consideration in light of Chapman v. California, ante, p. 18.

Mr. Justice Stewart would grant certiorari and reverse the judgment for the reasons stated in his opinion concurring in the result in Chapman v. California, ante, at 42.


text:
    COTTER v. CALIFORNIA.
    No. 38,
    Mise.
    Decided March 13, 1967.
    Petitioner pro se.

      Thomas C. Lynch, Attorney General of California, .William E. James, Assistant Attorney General, and Gordon Ringer, Deputy Attorney General, for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for .a writ of certiorari are granted. The judgment is vacated and the case remanded for further consideration in light of Chapman v. California, ante, p. 18.

Mr. Justice Stewart would grant certiorari and reverse the judgment for the reasons stated in his opinion concurring in the result in Chapman v. California, ante, at 42.


text:
    PROPP v. CALIFORNIA.
    No. 39,
    Mise.
    Decided March 13, 1967.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are. granted. The judgment is vacated and the case remanded for further consideration in light of Chapman v. California, ante, p. 18.

Mr. Justice Stewart would grant certiorari and reverse the judgment for the reasons stated in his opinion concurring in the result in Chapman v. California, ante, at 42.


text:
    OTWELL v. CALIFORNIA.
    No. 44,
    Mise.
    Decided March 13, 1967.

      Alf Stavig for petitioner.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case remanded for further consideration in light of Chapman v. California, ante, p. 18.

Mr. Justice Stewart would grant certiorari and reverse the judgment for the-reasons stated in his opinion concurring in the result in Chapman v. California, ante, at 42.