author: Mr. Justice Black Mr. Justice Stewart, Mr. Justice Fortas,

text:
    GIACCIO v. PENNSYLVANIA.
    No. 47.
    Argued December 6, 1965.
    Decided January 19, 1966.

      Peter Hearn argued the cause for appellant. With him on the brief were James C. N. Paul and Paul J. Mishkin.

      John S. Halsted argued the cause for appellee. With him on the brief were Walter E. Alessandroni, Attorney-General of Pennsylvania, Graeme Murdock, Deputy Attorney General, and A. Alfred Delduco.

   Mr. Justice Black

delivered the opinion of the Court.

Appellant Giaccio was indicted by a Pennsylvania grand jury and charged with two violations of a state statute which makes it a misdemeanor to wantonly point or discharge a firearm at any other person. In a trial before a judge and jury appellant’s defense was that the firearm he had discharged was a starter pistol which only fired blanks. The jury returned a verdict of not guilty on each charge, but acting pursuant to instructions of the court given under authority of a Pennsylvania statute of 1860, assessed against, appellant the court costs of one of the charges (amounting to $230.95). The Act of 1860, set out below, provides among other things that:

“. . . in all cases of acquittals by the petit jury on indictments for [offenses other than felonies], the. jury trying the same shall determine, by their verdict, whether the county, or the prosecutor, or the defendant shall pay the costs . . . and whenever the jury shall determine as aforesaid, that the . . . defendant shall pay the costs, the court in which the said determination shall be made shall forthwith . pass sentence to that effect, and order him to be committed to the jail of the county until the costs are paid, unless he give security to pay the same within ten days.”

Appellant made timely objections to the validity of this statute on several grounds, including an objection that the statute is unconstitutionally vague in violation of the Fourteenth Amendment’s Due Process Clause because it authorizes juries to assess costs against acquitted defendants, with a threat of imprisonment until the costs are paid, without prescribing definite standards to govern the jury’s determination. The trial court held the 1860 Act void for vagueness in violation of due process, set aside the jury’s verdict imposing costs on the appellant, and vacated the “sentence imposed upon Defendant that he pay said costs forthwith or give security to pay the same within ten (10) days and to stand committed until he had complied therewith.” The Superior Court of Pennsylvania, one judge dissenting, reversed the trial court closing its opinion this way:

“We can find no reason that would justify our holding it [the 1860 Act] unconstitutional.
“Order reversed, sentence reinstated.”

The State Supreme Court, again with one judge dissenting, agreed with the Superior Court and affirmed its judg-ment. This left appellant subject to the judgment for costs and the “sentence” to enforce payment. We noted jurisdiction to consider the question raised concerning vagueness and absence of proper standards in the 1860 Act. 381 U. S. 923. We agree with the trial court and the dissenting judges in the appellate courts below that the 1860 Act is invalid under the Due Process Clause because of vagueness and the absence of any standards sufficient to enable defendants to protect themselves against arbitrary and discriminatory impositions of costs.

1. In holding that the 1860 Act was not unconstitutionally vague the State Superior and Supreme Courts rested largely on the declaration that the Act “is not a penal statute” but simply provides machinery for the collection of costs of a “civil character” analogous to imposing costs in civil cases “not as a penalty but rather as compensation to a litigant for expenses. . . .” But admission of an analogy between the collection of civil costs and collection of costs here does not go far towards settling the constitutional question before us. Whatever label be given the 1860 Act, there is no doubt that it provides the State with a procedure for depriving an acquitted defendant of his liberty and his property. Both liberty and property are specifically protected by the Fourteenth Amendment against any state deprivation which does not meet the standards of due process, and this protection is not to be avoided by the simple label a State chooses to fasten upon its conduct or its statute. So here this state Act whether labeled “penal” or not must meet the challenge that it is unconstitutionally vague.

2. It is established that a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits or leavés judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case. See, e. g., Lanzetta v. New Jersey, 306 U. S. 451; Baggett v. Bullitt, 377 U. S. 360. This 1860 Pennsylvania Act contains no standards at all, nor does it place any conditions of any kind upon the jury’s power to impose costs upon a defendant who has been found by the jury to be not guilty of a crime charged against him. The Act, without imposing a single condition, limitation or contingency on a jury which has acquitted a defendant simply says the jurors “shall determine, by their verdict, whether . . . the defendant, shall pay the costs” whereupon the trial judge is told he “shall forthwith pass sentence to that effect, and order him [defendant] to be committed to the jail of the county” there to remain until he either pays or gives security for the costs. Certainly one of the basic purposes of the Due Process Clause has always been to protect a person against having the Government impose burdens upon him except in accordance with the valid laws of the land. Implicit in this constitutional safeguard is the premise that the law must be one that carries an understandable meaning with legal standards that courts must enforce. This state Act as written does not even begin to meet this constitutional requirement.

3. The State contends that even if the Act would have been void for vagueness as it was originally written, subsequent state court interpretations have provided standards and guides that cure the former constitutional deficiencies. We do not agree. All of the so-called court-created conditions and standards still leave to the jury such broad and unlimited power in imposing costs on acquitted defendants that the jurors must make determinations of the crucial issue upon their own notions of what the law should be instead of what it is. Pennsylvania decisions have from time to time said expressly, or at least implied, that juries having found a defendant not guilty may impose costs upon him if they find that his conduct, though not unlawful, is “reprehensible in some respect,” “improper,” outrageous to “morality and justice,” or that his conduct was “not reprehensible enough for a criminal conviction but sufficiently reprehensible to deserve an equal distribution of costs” or that though acquitted “his innocence may have been doubtful.” In this case the trial judge instructed the jury that it might place the costs of prosecution on the appellant, though found not guilty of the crime charged, if the jury found that “he has been guilty of some misconduct less than the offense which is charged but nevertheless misconduct of some kind as a result of which he should be required to pay some penalty short of conviction [and] ... his misconduct has given rise to the prosecution.”

It may possibly be that the trial court’s charge comes nearer to giving a guide to the jury than those that preceded it, but it still falls short of the kind of legal standard due process requires. At best it only told the jury that if it found appellant guilty of “some misconduct” less than that charged against him, it was authorized by law to saddle him with the State’s costs in its unsuccessful prosecution. It would be difficult if not impossible for a person to prepare a defense against such general abstract charges as “misconduct,” or “reprehensible conduct.” If used in a statute which imposed forfeitures, punishments or judgments for costs, such loose and unlimiting terms would certainly cause the statute to fail to measure up to the requirements of the Due Process Clause. And these terms are no more effective to make a statute valid which standing alone is void for vagueness.

We hold that the 1860 Act is constitutionally invalid both as written and as explained by the Pennsylvania courts. The judgment against appellant is reversed and the case is remanded to the State Supreme Court for further proceedings not inconsistent with this opinion.

Reversed and remanded.

Mr. Justice Stewart,

concurring.

I concur in the Court’s determination that the Pennsylvania statute here in question cannot be squared with the standards of the Fourteenth Amendment, but for reasons somewhat different from those upon which the Court relies. It seems to me that, despite the Court’s disclaimer, much of the reasoning in its opinion serves to cast grave constitutional doubt upon the settled practice of many States to leave to the unguided discretion of a jury the nature and degree of punishment to be imposed upon a person convicted of a criminal offense. Though I have serious questions about the wisdom of that practice, its constitutionality is quite a different matter. In the present case it is enough for me that Pennsylvania allows a jury to punish a defendant after finding him not guilty. That, I think, violates the most rudimentary concept of due process of law.

Mr. Justice Fortas,

concurring.

In my opinion, the Due Process Clause of the Fourteenth Amendment does not permit a State to impose a penalty or costs upon a defendant whom the jury has found not guilty of any offense with which he has been charged.

       Act of June 24, 1939, Pub. L. 872, § 716, Pa. Stat. Ann., Tit. 18, § 4716.

       Act of March 31, 1860, Pub. L. 427, § 62, Pa. Stat. Ann., Tit. 19, § 1222, provides:
      “In all prosecutions, cases of felony excepted, if the bill of indictment shall be returned ignoramus, the grand jury returning the same shall decide and certify on such bill whether the county or the prosecutor shall pay the costs of prosecution; and in all cases of acquittals by the petit jury on indictments for the offenses aforesaid, the jury trying the same shall determine, by their verdict, whether the county, or the prosecutor, or the defendant shall pay the costs, or whether the same shall be apportioned between the prosecutor and the defendant, and in what proportions; and the jury, grand or petit, so determining, in case they direct the prosecutor to pay the costs or any portion thereof, shall name him in their return or verdict; and whenever the jury shall determine as aforesaid, that the prosecutor or defendant shall pay the costs, the court in which the said determination shall be made shall forthwith pass sentence to that effect, and order him to be committed to the jail of the county until the costs are paid, unless he give security to pay the same within ten days."

       One objection was that the Act violates the Equal Protection Clause of the Fourteenth Amendment because it discriminates against defendants in misdemeanor cases by imposing greater burdens upon them than upon defendants in felony cases and cases involving summary offenses. We do not reach or decide this question.

       30 Pa. D. & C. 2d 463 (Q. S. Chester, 1963).

       202 Pa. Super. 294, 310, 196 A. 2d 189, 197.

       415 Pa. 139, 202 A. 2d 55.

       Tlie foregoing quotations appear in a number of Pennsylvania cases including Commonwealth v. Tilghman, 4 S. & R. 127; Baldwin v. Commonwealth, 26 Pa. 171; Commonwealth v. Daly, 11 Pa. Dist. 527 (Q. S. Clearfield); and in the opinion of the Superior Court in this case, 202 Pa. Super. 294, 196 A. 2d 189.

       In so holding we intend to cast no doubt whatever on the constitutionality of the settled practice of many States to leave to juries finding defendants guilty of a crime the power to fix punishment within legally prescribed limits.

       See n. 8, ante.


source: Caselaw Access Project

author: Mr. Justice Stewart Mr. Justice Black,

license: Public Domain

text:
    TEHAN, SHERIFF v. UNITED STATES ex rel. SHOTT.
    No. 52.
    Argued November 18, 1965.
    Decided January 19, 1966.

      Calvin W. Prem argued the cause for petitioner. With him on the brief was Melvin G. Rueger.

      Thurman Arnold argued the cause for respondent. With him on the brief were James G. Andrews, Jr., and John A. Lloyd, Jr.

      Thomas C. Lynch, Attorney General of California, Arlo E. Smith, Chief Assistant Attorney General, Albert

      W. Harris, Jr., Assistant Attorney General, and Deraid E. Granberg, Deputy Attorney General, filed a brief for the State of California, as amicus curiae, urging reversal.
   Mr. Justice Stewart

delivered the opinion of the Court.

In 1964 the Court held that the Fifth Amendment’s privilege against compulsory self-incrimination “is also protected by the Fourteenth Amendment against abridgment by the States.” Malloy v. Hogan, 378 U. S. 1, 6. In Griffin v. California, decided on April 28, 1965, the Court held that adverse comment by a prosecutor or trial judge upon a defendant’s failure to testify in a state criminal trial violates the federal privilege against compulsory self-incrimination, because such comment “cuts down on the privilege by making its assertion costly.” 380 U. S. 609, 614. The question before us now is whether the rule of Griffin v. California is to be given retrospective application.

I.

In the summer of 1961 the respondent was brought to trial before a jury in an Ohio court upon an indictment charging violations of the Ohio Securities Act. The respondent did not testify in his own behalf, and the prosecuting attorney in his summation to the jury commented extensively upon that fact. The jury found the respondent guilty, the judgment of conviction was affirmed by an Ohio court of appeals, and the Supreme Court of Ohio declined further review. 173 Ohio St. 542, 184 N. E. 2d 213. The respondent then brought his case to this Court, claiming several constitutional errors but not attacking the Ohio comment rule as such. On May 13, 1963, we dismissed the appeal and denied cer-tiorari, Mr. Justice Black dissenting. 373 U. S. 240. All avenues of direct review of the respondent’s conviction were thus fully foreclosed more than a year before our decision in Malloy v. Hogan, supra, and almost two years before our decision in Griffin v. California, supra.

A few weeks after our denial of certiorari the respondent sought a writ of habeas corpus in the United States District Court for the Southern District of Ohio, again alleging various constitutional violations in his state trial. The District Court dismissed the petition, and the respondent appealed to the United States Court of Appeals for the Sixth Circuit. On November 10, 1964, that court reversed, noting that “the day before the oral argument of this appeal, the Supreme Court in Malloy v. Hogan . . . reconsidered its previous rulings and held that the Fifth Amendment’s exception from self-incrimination is also protected by the Fourteenth Amendment against abridgment by the states,” and reasoning that “the protection against self-incrimination under the Fifth Amendment includes not only the right to refuse to answer incriminating questions, but also the right that such refusal shall not be commented upon by counsel for the prosecution.” 337 F. 2d 990, 992.

We granted certiorari, requesting the parties “to brief and argue the question of the retroactivity of the doctrine announced in Griffin v. California . . . .” 381 U. S. 923. Since, as we have noted, the original Ohio judgment of conviction in this case became final long before Griffin v. California was decided by this Court, that question is squarely presented.

II.

In Linkletter v. Walker, 381 U. S. 618, we held that the exclusionary rule of Mapp v. Ohio, 367 U. S. 643, was not to be given retroactive effect. The Linkletter opinion reviewed in some detail the competing conceptual and jurisprudential theories bearing on the problem of whether a judicial decision that overturns previously established law is to be given retroactive or only prospective application. Mr. Justice Clark's opinion for the Court outlined the history and theory of the problem in terms both of the views of the commentators and of the decisions in this and other courts which have reflected those views. It would be a needless exercise here to survey again a field so recently and thoroughly explored.

Rather, we take as our starting point Linkletter’s conclusion that “the accepted rule today is that in appropriate cases the Court may in the interest of justice make the rule prospective,” that there is “no impediment — constitutional or philosophical — to the use of the same rule in the constitutional area where the exigencies of the situation require such an application,” in short that “the Constitution neither prohibits nor requires retrospective effect.” Upon that premise, resolution of the issue requires us to “weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” 381 U. S., at 628-629.

III.

Twining v. New Jersey was decided in 1908. 211 U. S. 78. In that case the plaintiffs in error had been convicted by the New Jersey courts after a trial in which the judge had instructed the jury that it might draw an adverse inference from the defendants’ failure to testify. The plaintiffs in error urged in this Court two propositions: “first, that the exemption from compulsory self-incrimination is guaranteed by the Federal Constitution against impairment by the States; and, second, if it be so guaranteed, that the exemption was in fact impaired in the case at bar.” 211 U. S., at 91. In a lengthy opinion which thoroughly considered both the Privileges and Immunities Clause and the Due Process Clause of the Fourteenth Amendment, the Court held, explicitly and unambiguously, “that the exemption from compulsory self-incrimination in the courts of the States is not secured by any part of the Federal Constitution.” 211 U. S., at 114. Having thus rejected the first proposition advanced by the plaintiffs in error, the Court refrained from passing on the second. That is, the Court did not decide whether adverse comment upon a defendant’s failure to testify constitutes a violation of the federal constitutional right against self-incrimination.

The rule thus established in the Twining case was reaffirmed many times through the ensuing years. In an opinion for the Court in 1934, Mr. Justice Cardozo cited Twining for the proposition that “[t]he privilege against self-incrimination may be withdrawn and the accused put upon the stand as a witness for the state.” Snyder v. Massachusetts, 291 U. S. 97, 105. Two years later Chief Justice Hughes, writing for a unanimous Court, reiterated the explicit statements of the rule in Twining and Snyder, noting that “[t]he compulsion to which the quoted statements refer is that of the processes of justice by which the accused may be called as a witness and required to testify.” Brown v. Mississippi, 297 U. S. 278, 285. In 1937 the Court again approved the Twining doctrine in Palko v. Connecticut, 302 U. S. 319, 324, 325-326. In Adamson v. California, 332 U. S. 46, the issue was once more presented to the Court in much the same form as it had been presented almost 40 years earlier in Twining. In Adamson there had been comment by judge and prosecutor upon the defendant’s failure to testify at his trial, as permitted by the California Constitution. The Court again followed Twining in holding that the Fourteenth Amendment does not require a State to accord the privilege against self-incrimination, and, as in Twining, the Court did not reach the question whether adverse comment upon a defendant’s failure to testify would violate the Fifth Amendment privilege. Thereafter the Court continued to adhere to the Twining rule, notably in Knapp v. Schweitzer, decided in 1958, 357 U. S. 371, 374, and in Cohen v. Hurley, decided in 1961, 366 U. S. 117, 127-129.

In recapitulation, this brief review clearly demonstrates: (1) For more than half a century, beginning in 1908, the Court adhered to the position that the Federal Constitution does not require the States to accord the Fifth Amendment privilege against self-incrimination. (2) Because of this position, the Court during that period never reached the question whether the federal guarantee against self-incrimination prohibits adverse comment upon a defendant’s failure to testify at his trial. Although there were strong dissenting voices, the Court made not the slightest deviation from that position during a period of more than 50 years.

Thus matters stood in 1964, when Malloy v. Hogan announced that the Fifth Amendment privilege against self-incrimination is protected by the Fourteenth Amendment against abridgment by the States (378 U. S., at 6). Less than a year later, on April 28, 1965, Griffin v. California held that the Fifth Amendment “in its bearing on the States by reason of the Fourteenth Amendment, forbids . . . comment by the prosecution on the accused’s silence . . . (380 U. S., at 615.)

IV.

- Thus we must reckon here, as in Linkletter, 381 U. S., at 636, with decisional history of a kind which Chief Justice Hughes pointed out “is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration.” Chicot County Drainage Dist. v. Baxter State Bank, 308 U. S. 371, 374. It is against this background that we look to the purposes of the Griffin rule, the reliance placed upon the Twining doctrine, and the effect on the administration of justice of a retrospective application of Griffin.' See Linkletter v. Walker, 381 U. S., at 636.

In Linkletter, the Court stressed that the prime purpose of the rule of Mapp v. Ohio, rejecting the doctrine of Wolf v. Colorado as to the admissibility of unconstitutionally seized evidence, was “to deter the lawless action of the police and to effectively enforce the Fourth Amendment.” 381 U. S., at 637. There we could not “say that this purpose would be advanced by making the rule retrospective. The misconduct of the police prior to Mapp has already occurred and will not be corrected by releasing the prisoners involved.” Ibid.

No such single and distinct “purpose” can be attributed to Griffin v. California, holding it constitutionally impermissible for a State to permit comment by a judge or prosecutor upon a defendant’s failure to testify in a criminal trial. The Griffin opinion reasoned that such comment “is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly.” 380 U. S., at 614. It follows that the “purpose” of the Griffin rule is to be found in the whole complex of values that the privilege against self-incrimination itself represents, values described in the Malloy case as reflecting “recognition that the American system of criminal prosecution is accusa-torial, not inquisitorial, and that the Fifth Amendment privilege is its essential mainstay. . . . Governments, state and federal, are thus constitutionally compelled to establish guilt by evidence independently and freely secured, and may not by coercion prove a charge against an accused out of his own mouth.” 378 U. S., at 7-8.

Insofar as these “purposes” of the Fifth Amendment privilege against compulsory self-incrimination bear on the question before us in the present case, several considerations become immediately apparent. First, the basic purposes that lie behind the privilege against self-incrimination do not relate to protecting the innocent from conviction, but rather to preserving the integrity of a judicial system in which even the guilty are not to be convicted unless the prosecution “shoulder the entire load.” Second, since long before Twining v. New Jersey, all the States have by their own law respected these basic purposes by extending the protection of the testimonial privilege against self-incrimination to every defendant tried in their criminal courts. In Twining the Court noted that “all the States of the Union have, from time to time, with varying form but uniform meaning, included the privilege in their constitutions, except the States of New Jersey and Iowa, and in those States it is held to be part of the existing law.” 211 U. S., at 92. See also 8 Wigmore, Evidence § 2252 (McNaughton rev. 1961). It follows that such variations as may have existed among the States in the application of their respective guarantees against self-incrimination during the 57 years between Twining and Griffin did not go to the basic purposes of the federal privilege. And finally, insofar as strict application of the federal privilege against self-incrimination reflects the Constitution’s concern for the essential values represented by “our respect for the inviolability of the human personality and of the right of each individual 'to a private enclave where he may lead a private life/ ” any impingement upon those values resulting from a State’s application of a variant from the federal standard cannot now be remedied. As we pointed out in Linkletter with respect to the Fourth Amendment rights there in question, “the ruptured privacy . . . cannot be restored.” 381 U. S., at 637.

As in Mapp, therefore, we deal here with a doctrine which rests on considerations of quite a different order from those underlying other recent constitutional decisions which have been applied retroactively. The basic purpose of a trial is the determination of truth, and it is self-evident that to deny a lawyer’s help through the technical intricacies of a criminal trial or to deny a full opportunity to appeal a conviction because the accused is poor is to impede that purpose and to infect a criminal proceeding with the clear danger of convicting the innocent. See Gideon v. Wainwright, 372 U. S. 335; Doughty v. Maxwell, 376 U. S. 202; Griffin v. Illinois, 351 U. S. 12; Eskridge v. Washington Prison Board, 357 U. S. 214. The same can surely be said of the wrongful use of a coerced confession. See Jackson v. Denno, 378 U. S. 368; McNerlin v. Denno, 378 U. S. 575; Reck v. Pate, 367 U. S. 433. By contrast, the Fifth Amendment’s privilege against self-incrimination is not an adjunct to the ascertainment of truth. That privilege, like the guarantees of the Fourth Amendment, stands as a protection of quite different constitutional values— values reflecting the concern of our society for the right of each individual to be let alone. To recognize this is no more than to accord those values undiluted respect.

There can be.no doubt of the States’ reliance upon the Twining rule for more than half a century, nor can it be doubted that they relied upon that constitutional doctrine in the utmost good faith. Two States amended their constitutions so as expressly to permit comment upon a defendant’s failure to testify, Ohio in 1912, and California in 1934. At least four other States followed some variant of the rule permitting comment.

Moreover, this reliance was not only invited over a much longer period of time, during which the Twining doctrine was repeatedly reaffirmed in this Court, but was of unquestioned legitimacy as compared to the reliance of the States upon the doctrine of Wolf v. Colorado, considered in Linkletter as an important factor militating against the retroactive application of Mapp. During the 12-year period between Wolf v. Colorado and Mapp v. Ohio, the States were aware that illegal seizure of evidence by state officers violated the Federal Constitution. In the 56 years that elapsed from Twining to Malloy, by contrast, the States were repeatedly told that comment upon the failure of an accused to testify in a state criminal trial in no way violated the Federal Constitution.

The last important factor considered by the Court in Linkletter was “the effect on the administration of justice of a retrospective application of Mapp.” 381 U. S., at 636. A retrospective application of Griffin v. California would create stresses upon the administration of justice more concentrated but fully as great as would have been created by a retrospective application of Mapp. A retrospective application of Mapp would have had an impact only in those States which had not themselves adopted the exclusionary rule, apparently some 24 in number. A retrospective application of Griffin would have an impact only upon those States which have not themselves adopted the no-comment rule, apparently six in number. But upon those six States the impact would be very grave indeed. It is not in every criminal trial that tangible evidence of a kind that might raise Mapp issues is offered. But it may fairly be assumed that there has been comment in every single trial in the courts of California, Connecticut, Iowa, New Jersey, New Mexico, and Ohio, in which the defendant did not take the witness stand — in accordance with state law and with the United States Constitution as explicitly interpreted by this Court for 57 years.

Empirical statistics are not available, but experience suggests that California is not indulging in hyperbole when in its amicus curiae brief in this case it tells us that “Prior to this Court’s decision in Griffin, literally thousands of cases were tried in California in which comment was made upon the failure of the accused to take the stand. Those reaping the greatest benefit from a rule compelling retroactive application of Griffin would be [those] under lengthy sentences imposed many years before Griffin. Their cases would offer the least likelihood of a successful retrial since in many, if not most, instances, witnesses and evidence are no longer available.” There is nothing to suggest that what would be true in California would not also be true in Connecticut, Iowa, New Jersey, New Mexico, and Ohio. To require all of those States now to void the conviction of every person who did not testify at his trial would have an impact upon the administration of their' criminal law so devastating as to need no elaboration.

V.

We have proceeded upon the premise that “we are neither required to apply, nor prohibited from applying, a decision retrospectively.” Linkletter v. Walker, 381 U. S., at 629. We have considered the purposes of the Griffin rule, the reliance placed upon the Twining doctrine, and the effect upon the administration of justice of a retrospective application of Griffin. After full consideration of all the factors, we are not able to say that the Griffin rule requires retrospective application.

The judgment is vacated and the case remanded to the Court of Appeals for the Sixth Circuit for consideration of the claims contained in the respondent’s petition for habeas corpus, claims which that court has never considered.

It is so ordered.

Mr. Justice Black,

with whom Mr. Justice Douglas joins,

dissents for substantially the same reasons stated in his dissenting opinion in Linkletter v. Walker, 381 U. S. 618, at 640.

The Chief Justice took no part in the decision of this case.

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

       Ohio Rev. Code §§ 1707.01-1707.45.

       Since 1912 a provision of the Ohio Constitution has permitted a prosecutor to comment upon a defendant’s failure to testify in a criminal trial. Article I, § 10, of the Constitution of Ohio provides, in part, as follows: “No person shall be compelled, in any criminal case, to be a witness against himself; but his failure to testify may be considered by the court and jury and may be the subject of comment by counsel.”
      Section 2945.43 of the Revised Code of Ohio contains substantially the same wording.

       The Supreme Court of California and the Supreme Court of Ohio have both considered the question, and each court has unanimously held that under the controlling principles discussed in Link-letter v. Walker, 381 U. S. 618, the Griffin rule is not to be applied retroactively in those States. In re Gaines, 63 Cal. 2d 234, 404 P. 2d 473; Pinch v. Maxwell, 3 Ohio St. 2d 212, 210 N. E. 2d 883.
      As in Linkletter, the question in the present case is not one of “pure prospectivity.” The rule announced in Griffin was applied to reverse Griffin’s conviction. Compare England v. Louisiana State Board of Medical Examiners, 375 U. S. 411. Nor is there any question of the applicability of the Griffin rule to cases still pending on direct review at the time it was announced. Cf. O’Connor v. Ohio, ante, p. 286.
      The precise question is whether the rule of Griffin v. California is to be applied to eases in which the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari elapsed or a petition for certiorari finally denied, all before April 28, 1965.

       See Linkletter v. Walker, 381 U. S. 618, 622-628.

       For a recent commentary on the Linkletter decision and a suggested alternative approach to the problem, see Mishkin, The Supreme Court 1964 Term — Foreword: The High Court, The Great Writ, and the Due Process of Time and Law, 79 Harv. L. Rev. 56.

        “We have assumed only for the purpose of discussion that what was done in the case at bar was an infringement of the privilege against self-incrimination. We do not intend, however, to lend any countenance to the truth of that assumption. The courts of New Jersey, in adopting the rule of law which is complained of here, have deemed it consistent with the privilege itself and not a denial of it. . . . The authorities upon the question are in conflict. We do not pass upon the conflict, because, for the reasons given, we think that the exemption from compulsory self-incrimination in the courts of the States is not secured by any part of the Federal Constitution.” 211 U. S., at 114.

       As the Court pointed out in Adamson, 332 U. S., at 50, n. 6, this question had never arisen in the federal courts, because a federal statute had been interpreted as prohibiting adverse comment upon a defendant’s failure to testify in a federal criminal trial. See 20 Stat. 30, as amended, now 18 U. S. C. § 3481; Bruno v. United States, 308 U. S. 287; Wilson v. United States, 149 U. S. 60.

       In the federal judicial system, the matter was controlled by a statute. See n. 7, supra.

       See, e. g., Mr. Justice Black’s historic dissenting opinion in Adamson v. California, 332 U. S., at 68.

       367 U. S. 643.

       338 U. S. 25.

       These values were further catalogued in Mr. Justice Goldberg’s opinion for the Court in Murphy v. Waterfront Comm’n, 378 U. S. 52, announced the same day as Malloy v. Hogan, 378 U. S. 1: “The privilege against self-incrimination 'registers an important advance in the development of our liberty — “one of the great landmarks in man’s struggle to make himself civilized.’” Ullmann v. United States, 350 U. S. 422, 426. [The quotation is from Griswold, The Fifth Amendment Today (1955), 7.] It reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates 'a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load,’ 8 Wigmore, Evidence (McNaughton rev., 1961), 317; our respect for the inviolability of the human personality and of the right of each individual ‘to a private enclave where he may lead a private life,’ United States v. Grunewald, 233 F. 2d 556, 581-582 (Frank, J., dissenting), rev’d 353 U. S. 391; our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes ‘a shelter to the guilty,’ is often ‘a protection to the innocent.’ Quinn v. United States, 349 U. S. 155, 162.” 378 U. S., at 55. “[T]he privilege against self-incrimination represents many fundamental values and aspirations. It is ‘an expression of the moral striving of the community ... a reflection of our common conscience . . . .’ Malloy v. Hogan, ante, p. 9, n. 7, quoting Griswold, The Fifth Amendment Today (1955), 73. That is why it is regarded as so fundamental a part of our constitutional fabric, despite the fact that ‘the law and the lawyers . . . have never made up their minds just what it is supposed to do or just whom it is intended to protect.’ Kalven, Invoking the Fifth Amendment — Some Legal and Impractical Considerations, 9 Bull. Atomic Sci. 181, 182.” 378 U. S., at 56, n. 5.

       See n. 12, supra.

       See n. 2, supra.

       California Constitution, Art. I, § 13.

       See State v. Heno, 119 Conn. 29, 174 A. 181; State v. Ferguson, 226 Iowa 361, 372-373, 283 N. W. 917, 923; State v. Corby, 28 N. J. 106, 145 A. 2d 289; State v. Sandoval, 59 N. M. 85, 279 P. 2d 850.

       In Wolf v. Colorado, 338 U. S. 25, it was unequivocally determined by a unanimous Court that the Federal Constitution, by virtue of the Fourteenth Amendment, prohibits unreasonable searches and seizures by state officers. “The security of one’s privacy against arbitrary intrusion by the police . . . is . . . implicit in ‘the concept of ordered liberty’ and as such enforceable against the States through the Due Process Clause.” 338 U. S., at 27-28.

       See, for example, Scott v. California, 364 U. S. 471, where, as late as December 1960, only a single member of the Court expressed dissent from the dismissal of an appeal challenging the constitutionality of the California comment rule.

       See Elkins v. United States, 364 U. S. 206, at 224-225 (Appendix).

       See notes 2, 15, and 16, supra.


author: Per Curiam.

text:
    BANKS v. CALIFORNIA.
    No. 87,
    Misc.
    Decided January 24, 1966.
    Petitioner pro se.

      Thomas C. Lynch, Attorney General of California, Albert W. Harris, Jr., Assistant Attorney General, and Charles W. Rumph, 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 is remanded to the District Court of Appeal of California, First Appellate District, for further proceedings in light of Griffin v. California, 380 U. S. 609.

The Chief Justice took no part in the consideration of this motion and petition.


text:
    ODELL v. STATE DEPARTMENT OF PUBLIC WELFARE OF WISCONSIN et al.
    No. 896,
    Misc.
    Decided January 24, 1966.
   Per Curiam.

The appeal is dismissed for want of jurisdiction.


text:
    PEW v. COMMANDANT, U. S. COAST GUARD.
    No. 824,
    Misc.
    Decided January 24, 1966.
    Appellant pro se.

      Solicitor General Marshall 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.


text:
    ESCALERA v. SUPREME COURT OF PUERTO RICO.
    No. 849,
    Misc.
    Decided January 24, 1966.
   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.


text:
    CHICAGO & NORTH WESTERN RAILWAY CO. et al. v. CHICAGO, BURLINGTON & QUINCY RAILROAD CO. et al.
    No. 751.
    Decided January 24, 1966.

      Jordan Jay Hillman, Bryce L. Hamilton and John C. Danielson for appellants in No. 751. Robert W. Ginnane and Leonard S. Goodman for appellant in No. 752.

      Eldon Martin, Robert J. Cooney, Frank S. Farrell, Robert G. Gehrs, William P. Higgins, Curtis H. Berg, John H, Bishop, Louis E. Torinus, Jr., and Paul M. Sand for appellees in both cases.

       Together with No. 752, Interstate Commerce Commission v. Chicago, Burlington & Quincy Railroad Co. et al., also on appeal from the same court.

   Per Curiam.

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

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


author: Mr. Justice Black, Mr. Justice Douglas,

text:
    BROTHERHOOD OF LOCOMOTIVE ENGINEERS et al. v. CHICAGO, ROCK ISLAND & PACIFIC RAILROAD CO. et al.
    No. 69.
    Argued December 8-9, 1965.
    Decided January 31, 1966.

      James E. Youngdahl argued the cause for appellants in No. 69. With him on the briefs was Eugene F. Mooney. Jack L. Lessenberry argued the cause for appellants in No. 71. With him on the brief was Bruce Bennett, Attorney General of Arkansas.

      Robert V. Light and Dennis G. Lyons argued the cause for appellees in both cases. With them on the brief were Thurman Arnold, W. J. Smith, H. H. Friday and R. W. Yost.

    Briefs of amici curiae, urging reversal, were filed by Bronson C. La Follette, Attorney General, and Beatrice Lampert, Assistant Attorney General, for the State of Wisconsin; by John J. O’Connell, Attorney General, and Frank P. Hayes, James R. Cunningham and Paul

      Coughlin, Assistant Attorneys General, for the State of Washington; and by the following Attorneys General for their respective States: Arthur K. Bolton of Georgia, John J. Dillon of Indiana, Jack P. F. Gremillion of Louisiana, Forrest H. Anderson of Montana, Frank L. Farrar of South Dakota, and Waggoner Carr of Texas.
    Briefs of amici curiae, urging affirmance, were filed by William P. Rogers, Robert M. Lane, Gerald E. Dwyer, Victor F. Condello, Jordan Jay Hillman, Joseph S. Gill and Woodrow L. Taylor for Associated Railways of. Indiana et al., and by Francis M. Shea, Richard T. Conway, William H. Dempsey, Jr., Ralph J. Moore, Jr., James R. Wolfe and Charles I. Hopkins, Jr., for the National Railway Labor Conference.

      Together with No. 71, Hardin et al. v. Chicago, Bock Island & Pacific Railroad Co. et al., also on appeal from the same court.

   Opinion of the Court by

Mr. Justice Black,

announced by Mr. Chief Justice Warren.

Appellees, a group of interstate railroads operating in Arkansas,, brought this action in a United States District Court asking that court to declare two Arkansas statutes unconstitutional and to enjoin two Arkansas Prosecuting Attorneys, appellants here, from enforcing or attempting to enforce the two state statutes. The railroad brotherhoods, also appellants here, were allowed to intervene in the District Court in order to defend the validity of the state statutes. One of those statutes, enacted in 1907, makes it an offense for a railroad operating a line of more than 50 miles to haul freight trains consisting of more than 25 cars without having a train crew consisting of not “less than an engineer, a fireman, a conductor and three brakemen . . . .” The second statute challenged by the railroads, enacted in 1913, makes it an offense for any railroad operating with lines 100 miles or more in length to engage in switching activities in cities of designated populations, with “less than one [1] engineer, a fireman, a foreman and three [3] helpers. ...” The complaint charged that, as applied to the plaintiff railroads, both statutes (1) operate in an “arbitrary, capricious, discriminatory and unreasonable” manner in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment; (2) unduly interfere with, burden and needlessly increase the cost of interstate commerce in violation of the Commerce Clause, Art. I, § 8, cl. 3, of the Constitution, and contrary to the National Transportation Policy expressed in the Interstate Commerce Act; (3) discriminate against interstate commerce in favor of local or intrastate commerce; and (4) by seeking to regulate and control the number of persons working on interstate railroad locomotives and cars invade a field of legislation pre-empted by the Federal Government primarily through federal enactment of Public Law 88-108 passed by Congress in 1963. This law was passed to avert a nationwide railroad strike threatened by a labor dispute between the national railroads and the brotherhoods over the number of employees that should be used on trains.

In their complaint the railroads admitted that this Court had on three separate occasions, in 1911, in 1916, and again in 1931, sustained the constitutionality of both state statutes against the same Fourteenth Amendment and Commerce Clause challenges made in the present action. The complaint alleged, however, that improvements have now been so great in locomotives, freight cars, couplers, brakes, trackage, roadbeds, and operating methods that the facts on which the prior holdings rested no longer exist. The brotherhoods and the two defendant Prosecuting Attorneys answered the complaint asserting the ■ constitutionality of the Acts and denying that there had been a change in conditions so significant as to justify any departure from this Court’s prior decisions. The brotherhoods’ answer alleged that modern developments had actually multiplied the dangers of railroading thus making the Arkansas statutes more necessary than ever. The pleadings therefore, at least to some extent, presented factual issues calling for the introduction and determination of evidence under prior holdings of this Court. See, e. g., Southern Pacific Co. v. Arizona, 325 U. S. 761. At this stage of the trial, however, the railroads, claiming there was no substantial dispute in the evidence with reference to any relevant issues, filed a motion for summary judgment under Rule 56, Fed. Rules Civ. Proc. alleging that: (1) Both state statutes are “pre-empted by federal legislation in conflict therewith, to-wit: Public Law 88-108 and the award of Arbitration Board No. 282 pursuant thereto; the Railway Labor Act . . . ; and the Interstate Commerce Act . . . particularly the preamble thereto”; (2) the state statutes constitute discriminatory legislation against interstate commerce in violation of the Commerce Clause; and (3) the state statutes deny the railroads equal protection of the laws in violation of the Fourteenth Amendment. Without hearing any evidence the three-judge court convened to consider the case sustained the railroads’ motion for summary judgment, holding, one judge dissenting, that the Arkansas statutes are “in substantial conflict with Public Law 88-108 . . . and the proceedings thereunder, and are therefore unenforceable against the plaintiffs . . . 239 F. Supp. 1, 29. The District Court did not purport to rule on the other questions presented in the motion for summary judgment and the complaint. We noted probable jurisdiction, 381 TJ. S. 949.

A few weeks ago this Court held in Swift & Co. v. Wickham, ante, p. 111, that an allegation that a state statute is pre-empted by a federal statute does not allege the unconstitutionality of the state statute so as to call for the convening of a three-judge court under 28 U. S. C. § 2281 (1964 ed.). Thus, under Swift, the pre-emption issue in this case standing alone would not have justified a three-judge court, and hence would not have justified direct appeal to us under 28 U. S. C. § 1253 (1964 ed.). The complaint here, however, also challenged the Arkansas statutes as being in violation of the Commerce, Due Process, and Equal Protection Clauses. In briefs submitted to us after oral argument the appellants have argued that all these constitutional challenges are so insubstantial as a matter of law that they are insufficient to make this an appropriate case for a three-judge court. We cannot accept that argument. Whatever the ultimate holdings on the questions may be we cannot dismiss them as insubstantial on their face. Nor does the fact that the pre-emption issue alone was passed on by the District Court keep this from being a three-judge case. Had all the issues been tried by the District Court and had that court enjoined enforcement of the state laws on pre-emption alone, we would have had jurisdiction of a direct appeal to us under 28 U. S. C. § 1253 (1964 ed.). Florida Lime & Avocado Growers, Inc. v. Jacobsen, 362 U. S. 73. The same is true here where the state laws were enjoined on the basis of pre-emption but the other constitutional challenges were left undecided. Thus we have jurisdiction and so proceed to the merits.

I.

We first consider the question of pre-emption. Congress unquestionably has power under the Commerce Clause to regulate the number of employees who shall be used to man trains used in interstate commerce. In the absence of congressional legislation on that subject, however, the States have extensive power of their own to regulate in this field, particularly to protect the safety of railroad employees and the public. This Court said in Missouri Pac. R. Co. v. Norwood, one of the previous decisions upholding the constitutionality of these Arkansas statutes, that:

“In the absence of a clearly expressed purpose so to do Congress will not be held to have intended to prevent the exertion of the police power of the States for the regulation of the number of men to be employed in such crews.” 283 U. S., at 256.

See also the same case, 290 U. S. 600.

In view of Norwood and the two preceding cases, all of which sustained the constitutionality of the Arkansas statutes over charges of federal pre-emption, the question' presented to this Court is whether in adding the 1963 compulsory arbitration Act to previous federal legislation, Congress intended to pre-empt this field and supersede state legislation like that of Arkansas, or, stated another way, whether application of the Arkansas law “would operate to frustrate the purpose of the [1963] federal legislation.” Teamsters Union v. Morton, 377 U. S. 252, 258.

Since the railroad unions first gained strength in this country the problem of manning trains has presented an issue of constant dispute between the railroads and the unions. Some States, such as Arkansas, believing perhaps that many railroads might not voluntarily assume the expense necessary to hire enough workers for their trains to make the operations as safe as they could and should be, passed laws providing for the minimum size of the train crews. Where these laws were not in effect the question of the size of the crews was settled by collective bargaining, though not without great difficulty. It was this sensitive and touchy problem which brought on the explosive collective bargaining impasse that triggered the 1963 Act which the railroads now contend was intended to permanently supersede the 1907 and 1913 Arkansas statutes. Such a permanent supersession would, of course, amount to an outright repeal of the statutes by Congress.

The particular dispute which eventually led to the enactment of Public Law 88-108 began in 1959 when the Nation’s major railroads notified the brotherhoods that they considered it to be the right of management to have the unrestricted discretion to decide how many employees should be used to man trains, and that they did not intend to submit that subject to collective bargaining in the future. The brotherhoods protested, serving counter-proposals on the railroads. As a result the representatives of each side met to try to negotiate a new collective bargaining agreement. On the question of the size of the crews the negotiators stuck and would not budge. The railroad negotiators insisted that changed conditions, particularly the substitution of diesel and electrically propelled engines for steam engines, had made firemen completely unnecessary employees. They continued to insist that the railroads should be left free to decide for themselves when and how many firemen should be used, if any at all. Throughout all negotiations, and up to now, the brotherhoods have insisted that a fireman is needed even on a diesel engine, particularly to aid the engineer as a lookout for safety purposes, and to help make needed repairs and adjustments while the train is moving, should the engine for any reason fail to function. Agreement on this question proving impossible in the 1959 negotiations, President Eisenhower, acting at the request of both sides, appointed a Presidential Commission to try to adjust the dispute. After long investigation and consideration the Commission reported. Its report was unsatisfactory to the brotherhoods, not wholly satisfactory to the railroads, and did not result in any settlement. The dispute dragged on. Another report was made by the President’s Advisory Committee on Labor-Management Policy but it also failed to bring about an agreement.

All efforts at agreement having failed, President Kennedy, on July 22, 1963, reported to Congress that on July 29 the railroads “can be expected to initiate work rules changes .... And the brotherhoods thereupon can be expected to strike.” “This Nation,” he said, “stands on the brink of a nationwide rail strike that would, in very short order, create widespread economic chaos and distress.” Pointing out the disastrous consequences that might occur to the country should a strike take place, the President recommended legislation to provide “for an interim remedy while awaiting the results of further bargaining by the parties.” He recommended that “for a 2-year period during which both the parties and the public can better inform themselves on this problem . . . interim work rules changes proposed by either party to which both parties cannot agree should be submitted for approval, disapproval or modification to the Interstate Commerce Commission in accordance with the procedures and provisions of section 5 of the Interstate Commerce Act . . . .” President Kennedy repeatedly emphasized to the Congress his hope that the dispute could eventually be settled by collective bargaining. He stated his belief that advances in railroad technology had made it necessary to reduce the railroad labor force, but he insisted that the public should help bear the burden of this reduction in order that it not fall entirely on those employees who would lose their jobs. He warned the Congress that it was highly necessary “ Tor workers to enjoy reasonable protection against the harsh effects of too sudden change.’ ” In his message the President expressed no desire to have Congress pass a law that would finally and completely dispose of the problem of the number of men who should man the crew of a train, but instead warned that “It would be wholly inappropriate to make general and permanent changes in our labor relations statutes on this basis” and that any “ ‘revolutionary changes even for the better carry a high price in disruption . . . (that) might exceed the value of the improvements.’ ” Thus the President’s message did not in any way indicate a purpose on his part to disturb the existing pattern of full-crew laws by supersession of them, either temporarily or permanently.

Congress enacted the bill proposed by the President with one significant change. He had recommended that a binding determination of the issues not resolved by collective bargaining be made by the Interstate Commerce Commission. At least one brotherhood witness testified before the Senate Commerce Committee to an apprehension. that the Interstate Commerce Commission if given the power requested would declare States’ full-crew laws superseded by orders of the Commission. Subsequent to this both the House and Senate Committees dropped a section of the proposed bill that would have vested power in the Commission to make binding settlements. Instead of that section the Act passed by Congress provided for establishment of an arbitration board to consist of seven members, two appointed by the railroads, two by the únions and three to be appointéd by the President should the four members named by the railroads and unions fail to agree among themselves on an additional three. The arbitration board was given power to resolve the dispute over the firemen and full-crew questions. Their award was to be a complete and final disposition of these issues for a period not exceeding two years from the date the awards would take effect. Awards were made by such a board which the railroads now claim call for supersession of the state laws. We hold that neither the Act itself nor the awards made under it can have such an effect.

The text of the Act and the awards made under it contain no section specifically pre-empting the States’ full-crew laws nor is there any specific saving clause indicating lack of intent to pre-empt them. Appellees argue, however, that the terms of the Act and the awards are inconsistent with the operation of the state laws and thus the laws are no longer valid. But Congress wanted to do as little as possible in solving the dispute which was before it, and we note that this dispute was not over the size of crews in States which had full-crew laws, for there the size of crews was regulated by statute and not by collective bargaining agreements. The railroads made this very point before the Senate Commerce Committee when a spokesman for three railroads, in commenting on the few jobs that would be lost if the brotherhoods accepted the railroads’ proposal, said, “25.9 percent of the firemen positions in freight and yard service must be maintained because of the provisions of so-called full-crew laws of the States of [listing 13 States including Arkansas].” It appears, therefore, that Congress did not need to pre-empt the state laws in order to eliminate this collective bargaining impasse, and further examination of the legislative history of Public Law 88-108 confirms our view that Congress had no intention of superseding the state full-crew laws by passage of that Act.

The President’s proposal was interpreted and explained to the House Committee on Interstate and Foreign Commerce by the Secretary of Labor. On the subject of state full-crew laws he told that Committee:

“I call attention to such statements as those of the Missouri Railroad Company v. Norwood, the Supreme Court case in 1930 in which the Court said, 'In the absence of a clearly stated purpose so to do Congress will not be held to have intended to prevent the assertion of the police power of the States for the regulation of the number of men to be employed in such crews.’ It would be the intention reflected here that the issuance of an interim ruling, subject to termination in a time period or at the agreement of the parties, would not have the effect of affecting any State full crew law.”

The Chairman of the House Committee on several occasions emphatically stated both in the hearings and on the House floor that the bill was not intended, either as proposed or as passed, to supersede state laws. On one occasion he said:

“This issue was raised in the course of the hearings before the committee. Questions were asked of the various people representing management and the labor industry and witnesses representing the labor brotherhoods, the employees’ representatives, and the Secretary of Labor. It was made rather clear in the course of the hearings that it would in no way affect the provisions of State laws. The committee in executive session discussed the question and concluded that it was not the intent of the committee in any way to affect State laws. On page 14 of the committee report we included, in order that this history might be made, this language: 'The committee does not intend that any award made under this section may supersede or modify any State law relating to the manning of trains.’ ”

The Chairman of the Committee then went on to tell the House, after referring td'this Court’s holding in Missouri Pac. R. Co. v. Norwood,

“Therefore, since this bill does not mention the subject of State laws, and since, as the committee report shows, we do not intend to affect these laws, I am confident they are not affected by the bill.
“I think that is about as clear as we can make it.”

Many statements like those quoted above point to the fact that both the Senate and the House members did not intend by enacting Public Law 88-108 to supersede state laws. This sentiment was voiced by witnesses representing both labor and railroads as well as by public officials of the Nation. The railroads seek to offset these carefully considered expressions by reference to a single incident. On one of the occasions when Representative Harris, Chairman of the House Committee reporting the bill, had stated that the Act would not supersede the state law, Representative Smith of Virginia, Chairman of the Rules Committee of the House, interrupted Representative Harris to make the statement set out below. This single statement by Congressman Smith was hardly enough to cast doubt in the minds of the members of the House as to the accuracy of the statement made by Congressman Harris, Chairman of the Committee which reported the bill. The substance of Congressman Smith’s statement was:

“I think the provisions of the Constitution are such and the decisions of the courts are such that there is no way in which a State can overcome the power of the Federal Government under the interstate commerce clause.”

This statement was, of course, correct but it has little relevance as to whether the bill was intended to exercise the power of the Federal Government to supersede state laws.

In the face of the clear congressional history of this Act we could not hold that either the Act itself or the arbitration awards made under it supersede the Arkansas state laws.

II.

The railroads contend that the District Court would have been justified in holding the two Arkansas Acts unconstitutional on the second ground of their motion for summary judgment which is that the two Acts “constitute discriminatory legislation against interstate commerce in favor of intrastate commerce.” Aside from the fact that such an argument was apparently rejected in the prior cases upholding the constitutionality of the Arkansas statutes we think it is wholly without merit. The argument is based on the fact that the 1907 state law exempts railroads with less than 50 miles of track and the 1913 law exempts railroads with less than 100 miles of track. None of the State’s 17 intrastate railroads have more than 50 miles of track. It turns out that none of them are subject to either of the two state laws while 10 of the 11 interstate railroads are subject to the 1907 Act and eight of them are subject to the 1913 Act. It is impossible for us to say as a matter of law that this difference in treatment by the State, based on the differing mileage of railroads, is without any rational basis as the railroads contend. Certainly some regulations based on different mileage of railroads might be wholly rational, reasonable, and desirable. We cannot say on the record now before us that classification according to the length of mileage in these two statutes constitutes discrimination against interstate commerce in violation of the Commerce Clause or the Equal Protection Clause. See Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132, 137.

The judgment of the District Court is reversed and the cause is remanded to that court for consideration of the constitutional issues left undecided by its previous judgment.

It is so ordered.

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

Mr. Justice Douglas,

dissenting.

We all agree that Congress has ample power to regulate the number of employees used to man railroad trains operating in interstate commerce. Unlike the majority, however, I believe that Congress has exercised that power, and respectfully dissent from the Court’s conclusion to the contrary.

The bargaining impasse which prompted the passage of Public Law 88-108 (77 Stat. 132) represented, in a sense, only the exposed top of a large iceberg. Lurking beneath the surface of the controversy were the twin problems of automation and technological unemployment. Congress was well aware of the developing conflict between innovation and job security. When President Kennedy sought a legislative solution to the pending crisis in the railroad industry, he reminded Congress that:

“. . . this dispute over railroad work rules is part of a much broader national problem. Unemployment, whether created by so-called automation, by a shift of industry to new areas, or by an overall shortage of market demand, is a major social burden.
“This problem is particularly but not exclusively acute in the railroad industry. Forty percent fewer employees than were employed at the beginning of this decade now handle substantially the same volume of rail traffic. The rapid replacement of steam locomotives by diesel engines for 97 percent of all freight tonnage has confronted many firemen, who have spent much of their career in this work, with the unpleasant prospect of human obsolescence. . . . The Presidential Commission was established in part, it said, because of the need to close the gap between technology and work.” (See Hearings before Senate Committee on Commerce on S. J. Res. 102, 88th Cong., 1st Sess., 11-12.)

The Presidential Railroad Commission to which President Kennedy referred was established by President Eisenhower’s order in I960, and was charged with investigating the dispute which arose out of the railroads’ proposed elimination of firemen on diesel engines, and the reduction of the number of other crew members, in freight and yard service. After an extensive study, the Commission issued its report containing detailed findings on all aspects of the dispute. The Commission’s recommendations included the elimination of firemen on diesels in freight service and the reduction of the number of brakemen and switchmen. It recommended financial benefits for those separated from service.

This Presidential Railroad Commission was well aware that, however desirable might be a nationwide solution to the problem, the continued existence of state “full crew” laws made this impossible:

“[M]ost of the legislation of this kind was enacted prior to 1920. These laws apparently fail to envision modern railroad operations. We feel that our recommendations with respect to this issue should have nationwide application. We recognize that there will be difficulty in applying the rule recommended by us in States where ‘full crew’ laws have been enacted. How the restriction of those laws may be lifted, however, is a matter which goes beyond our charge.”

Then came Public Law 88-108, § 3 of which empowers the Board to “resolve the matters on which the parties were not in agreement” and to make a binding award which “shall constitute a complete and final disposition of the . . . issues.” Section 7 (a) lays down standards for the Board:

(1) “[T]he effect of the proposed award upon adequate and safe transportation service”;

(2) “[T]he effect of the proposed award upon . . . the interests of the carrier and employees affected”; and

(3) “[D]ue consideration to the narrowing of the areas of disagreement which has been accomplished in bargaining and mediation.”

Today the Court concludes that Congress sought only to shear off the visible portion of the iceberg, leaving the continued existence of state “full crew” laws as a bar to the resolution of these matters.

That the state statutes in question conflict with the federal arbitration awards is plain. Congress directed the National Arbitration Board to resolve the dispute as to the necessity of firemen on diesel freights and as to the minimum size of train and switching crews. The Board has declared that, in general, firemen are not to be required. And through local boards, the number of brakemen, switchmen, and helpers to be used in various operations is fixed. These state laws, however, compel the use of firemen in virtually all interstate operations and fix the size of train crews at levels usually exceeding those fixed by the local awards. States lacking such laws are, in light of the Court’s decision, free to enact them and thereby, in effect, imperil Public Law 88-108 and the arbitration awards made under it. This Court has held that a state statute must fall in the face of an inconsistent provision in a collective bargaining agreement negotiated pursuant to the command of federal law, Teamsters Union v. Oliver, 358 U. S. 283, even though Congress did not prescribe the particular terms of the agreement. And see California v. Taylor, 353 U. S. 553. We have here something more than collective bargaining agreements. These arbitration awards are binding directives, resolving a labor-management dispute, issued under the direction and authority of Congress.

The problems submitted to the Arbitration Board concerned primarily two central issues: (1) continued use of firemen on diesel-electric or electric locomotives which do not use steam power, and on which the work of firing boilers need not be performed; (2) the makeup or “consist” of train service crews in road and yard. These are matters recognized by the Board as governed in some States “by statute or administrative decision.” Indeed, a resolution of them in many situations might involve overriding or disregarding conflicting local regulations. Any realistic view of the scope and nature of the impasse the parties had reached would necessarily endow the Board with power to resolve conflicts between what it deemed to be the desirable national policy on the one hand and conflicting state laws on the other.

The issues were far-reaching; they included questions in the realm of economics, of railroad technology, and of sociology. This was a controversy that years of collective bargaining, study, informed analysis, persuasion, and debate had not been able to resolve. The Board’s seven members held 29 days of hearings, received the testimony of more than 40 witnesses recorded in nearly 5,000 pages of transcript, examined more than 200 documentary exhibits, and made inspection trips to four railroad yards in the Chicago area. Its award was concurred in by the two carrier members and dissented from by the labor members. The opinion of the neutral members of the Board details the conclusions the panel reached. It states, as to the question of firemen, that:

“although we think it clear that firemen are presently performing useful services, we agree with the
[Presidential Railroad] Commission ‘that firemen-helpers are not so essential for the safe and efficient operation of road freight and yard diesels that there should continue to be either a national rule or local rules requiring their assignment on all such diesels.’ ”

The Board found, in respect to the other members of the train crew, that “the consist of crews necessary to assure safety and to prevent undue workloads must be determined primarily by local conditions. A national prescription of crew size would be wholly unrealistic.” The Board established procedures for local arbitration of these issues. And, the Board added,

“It is clear from the evidence before us that the myriad of local arrangements has led to numerous inconsistencies in the manning of crews. It is equally clear that some of the existing rules, originating as they did more than a half-century ago, are anachronistic and do not reflect the present state of railroad technology and operating conditions.”

The Board's concern with safety is apparent from a reading of the neutral members' opinion. As that opinion puts it:

“It may be fairly stated that concern with safety has pervaded this entire proceeding. It was apparent in the presentations and arguments by all the organizations and by the carriers, and was further emphasized by the inquiries which members of the Board directed to witnesses and counsel.”

We are in no position, of course, to pass judgment on the work of the Arbitration Board, nor is it our function to do so. But it is apparent that this panel had the power and the tools to resolve the controversy. Its award constitutes a national solution to the question of firemen and establishes the procedures, already utilized in respect to these railroads operating in Arkansas, for resolution of the crew consist issue.

I conclude that the effect of Public -Law 88-108 and the awards made pursuant to it was to supersede state “full crew” legislation. Of course, were the intent of Congress shown to be otherwise, that would be disposi-tive. Unlike the majority, I do not think that the bits and pieces of legislative debate cited in the Court’s opinion can be regarded as a controlling statement of legislative intent. If anything, the legislative history of Public Law 88-108 suggests that Congress refused to accept the suggestion that, if it wished to avoid the supersession of state “full crew” laws, it should expressly say so.

The majority points to statements made by Congressman Harris, Chairman of the House Committee on Interstate and Foreign Commerce, to the effect that the bill would have no effect on state laws. But when he stated his conclusion on the floor of the House, he was immediately challenged by Congressman Smith, Chairman of the Rules Committee. Under the circumstances, it seems inappropriate to regard Congressman Harris’ views as wholly authoritative. The testimony of Secretary Wirtz, also referred to by the Court, was followed by a legal memorandum submitted by the Secretary. This memorandum suggests that the Interstate Commerce Commission would, under the proposed legislation, have the power to supersede state legislation, and that to avoid this the Commission might expressly provide to the contrary in its orders.

The absence of an express disclaimer of intent to supersede state laws was called to the attention of Congress. Testifying before the House Committee, Secretary Wirtz did so. The General Counsel of the Interstate Commerce Commission told the Committee that if “the Congress wants to be doubly certain, for example, that no such legal consequence follows it could be done” by expressly stating that no supersession is intended. To this the Chairman responded:

“I appreciate your very frank response, because I think it has sort of been left up in the air as to what the courts might do. There has been expression as to what is intended and what some might have thought but I think we also have to provide clarity wherever it is necessary in order that the Commission may have guidance in its effort to carry out the responsibility should it so be directed.”

The Commission’s General Counsel testified to the same effect before the Senate Commerce Committee:

“If it were desired to make that absolutely certain, if that is the desire of Congress, it can be done by just a phrase . . . .”

Despite this advice, Congress did not include a “saving” clause.

Congress was faced, at the time it enacted Public Law 88-108, with more than the threat of a crippling strike. It had before it the recommendations of the Presidential Railroad Commission. It had been told by the President of the seriousness of the problem of technological unemployment arising from automation. Congress responded by establishing a procedure for resolution of the railroad industry’s pressing economic problem with ample consideration of the “safety” issue. It is inconceivable that Congress intended to solve only part of the problem when it directed the Arbitration Board to make a binding award which “shall constitute a complete and final disposition of the . . . issues.”

In sum, I agree with District Court that, “There is nothing in the Act itself or in the history that indicates that the Congress intended to resolve this problem of national magnitude by legislation that would be effective in only some 30 states that do not regulate crew consists by law or administrative regulation.” 239 F. Supp. 1, 23.

Although automation was a prime concern of the President and the Congress, the Court holds that the lawmakers cloaked their concern in such weasel-like words as not to reach the roots of the problem. With all respect, I dissent.

       Ark. Laws 1907, Act 116, Ark. Stat. Ann. §§73-720 through 73-722 (1957).

       Ark. Act 67 of 1913, Ark. Stat. Ann. §§73-726 through 73-729 (1957).

       77 Stat. 132, 45 U. S. C. following § 157 (1964 ed.).

        Chicago, R. I. & P. R. Co. v. Arkansas, 219 U. S. 453.

        St. Louis, I. M. & S. R. Co. v. Arkansas, 240 U. S. 518.

        Missouri Pac. R. Co. v. Norwood, 283 U. S. 249, 290 U. S. 600. See also latter case below, 13 F. Supp. 24.

       Hearings before Senate Committee on Commerce on S. J. Res. No. 102, 88th Cong., 1st Sess., 629.

       S. Rep. No. 459, 88th Cong., 1st Sess., 9.

       Hearings before the Senate Committee on Commerce on S. J. Res. No. 102, 88th Cong., 1st Sess., 707.

       Hearings before the House Committee on Interstate and Foreign Commerce on H. J. Res. No. 565, 88th Cong., 1st Sess., 78.

       109 Cong. Rec. 16122 (1963). See also the Committee Report referred to by Chairman Harris, H. R. Rep. No. 713, 88th Cong., 1st Sess., 14.

       “Mr. SMITH of Virginia. Mr. Speaker, the colloquy between the gentleman from California [Mr. Sisk], and the chairman of the Committee on Interstate and Foreign Commerce, the gentleman from Arkansas [Mr. HaRris], raises a question that has not previously been discussed on the floor of the House. It was discussed in the committee yesterday before the Committee on Rules. I do not like to remain silent in view of the statement that a State law can overcome the constitutional provision which gives exclusive jurisdiction to the Federal Government in matters of interstate commerce. I do not know what precedents may have been found with reference to this question, but of course, in the matter of purely intrastate commerce under our Constitution the State, of course, would have authority, but when it comes to dealing with interstate commerce I think the provisions of the Constitution are such and the decisions of the courts are such that, there is no way in which a State can overcome the power of the Federal Government under the interstate commerce clause.
      “I simply wanted to make my own position clear with reference to that question, for whatever it may be worth.
      “Mr. EDMONDSON. Mr. Speaker, will the gentleman yield?
      “Mr. SMITH of Virginia. I yield to the gentleman from Oklahoma.
      “Mr. EDMONDSON. I thank the distinguished chairman of the Committee on Rules for yielding to me at this point. Would this not mean in effect that about the only kind of train operation in which State laws would prevail would be in the switching of cars involving switch engine operations?
      “Mr. SMITH of Virginia. Of course, it is just a question of what is or what constitutes interstate commerce. Now, as you know, the decisions of the courts and the actions of the Congress have gone a long way in putting almost everything under interstate commerce.” 109 Cong. Rec. 16122 (1963).

       Executive Order No. 10891, Nov. 1,1960.

       Report of the Presidential Railroad Commission (1962), at p. 64.

       The national award provided for the elimination of 90% of the firemen’s jobs in each local seniority district, except that firemen would in all cases be required on yard locomotives lacking a “dead-man” control. In addition, jobs had to be made available to firemen retained in service pursuant to the employment protective provisions of the award which, in general, provided that any fireman with 10 years’ seniority had to be retained either as a fireman or an engineer. Firemen with between two and 10 years’ seniority had to be retained in engine service or offered a comparable position.
      As for brakemen and switchmen, the award established procedures for binding local arbitration wherebj1' the number of other crew members might be fixed on a local basis, subject to certain employment protective conditions established by the national Board. The applicable local awards for Arkansas railroad operations provide for two brakemen on main-line operations and one brakeman on branch-line operations. In switching operations, the local awards provide, with certain exceptions, for one helper.

       Thus Arkansas law requires a fireman on every train, with certain exceptions, while the arbitration award permits abolition of 90% of the firemen’s positions. Arkansas requires three brakemen while the arbitration award requires no more than two. Similar conflicts appear in respect to the yard operations.

       The Chairman of the Board was Ralph T. Seward. The other two neutral members were Benjamin Aaron and James J. Healy. Representing the carriérs were Guy W. Knight and J. E. Wolfe. Representing the labor organizations were H. E. Gilbert and R. H. McDonald.

       See note 3, supra.

       The carrier members, while “disappointed with certain of [the] provisions” of the award, noted the “care and diligence” which the Board had displayed in reaching its decision. The labor members contended that the Board had not been true to the congressional command and that its conclusions were erroneous.

       The opinion states that the “lookout function presently assigned to the fireman is also performed by the head brakeman in road freight service and by all members of the train crew in yard service. In the great majority of cases the lack of a fireman to perform the related functions of lookout and signal passing will not endanger safety or impair efficiency because these functions can be, as they are now, performed by other crew members.”
      The mechanical duties performed by firemen, the Board found, could in large part “be performed by the engineer while the locomotive is in service and by shop maintenance personnel at other times.”
      Finally, the Board found that relief of the engineer by the fireman is of critical importance only in the event of sudden incapacitation. “In road freight service the usual presence of the head brakeman in the cab obviates the need for a fireman in such an emergency.”

       See Hearings before House Committee on Interstate and Foreign Commerce on H. J. Res. No. 565, 88th Cong., 1st Sess., 112-113. The reference to the Interstate Commerce Commission was made, of course, because at that stage Congress was considering the legislation in the form proposed by the President, which contemplated resolution of the dispute by the Commission.
      The report of the Committee reflects the view of its Chairman and states that state full-crew laws would not be superseded. H. R. Rep. No. 713, 88th Cong., 1st Sess., 14. It bears repeating that this position was challenged by Congressman Smith on the floor of the House. And it is also significant that the report of the Senate Commerce Committee (S. Rep. No. 459, 88th Cong., 1st Sess.) makes no mention of the pre-emption question, despite references to it in the Committee’s hearings. See note 13 and accompanying text and note 14, infra.

       See Hearings before House Committee on Interstate and Foreign Commerce on H. J. Res. 565, 88th Cong., 1st Sess., 111.

        Id.., at p. 614.

        Ibid.

       Hearings before Senate Committee on Commerce on S. J. Res. No. 102, 88th Cong., 1st Sess., 401.

       The possibility that the bill would result in the supersession of state laws was noted at other points in the Senate Commerce Committee hearings. A representative of the Brotherhood of Locomotive Engineers testified:
      “Mr. DAVIDSON. Mr. Chairman, I was just handed a note that I would like to read into the record, if I may.
      “Senator PASTORE. All right.
      “Mr. DAVIDSON. General Counsel for the ICC, at the House hearing today, stated if this bill passes, the Commission would have jurisdiction over States’ minimum crew bills.
      “Senator PASTORE. I don’t want to pass any judgment on that. You have read it into the record. I will check that.” Id., at 478.
      The General Counsel of the Railway Labor Executives’ Association testified: “I certainly visualize that as a bare minimum the carriers will contend that the effect [ofj orders of the Commission authorizing decreases in crew consist — either of enginecrew or train-crew — would operate to overrule full crew laws in those States that have them. Perhaps that explains the alacrity with which the carriers embraced the President’s recommendation and endorsed it.” Id., at 629.
      As stated by the District Court: “A complete review of the legislative history will reveal that some members of Congress thought that the legislation would pre-empt state crew consist laws, and others thought it would not. It is perfectly clear that the Committees in both Houses had it brought effectively to their attention that the legislation might have a pre-empting effect, and if such preemption was not the desire and intention of the Congress, it should so expressly state in the bill. There was no such expression although the bill was amended in many other respects after the hearings before both Committees had been concluded.” 239 F. Supp., pp. 22-23.


text:
    UNITED STATES v. CALIFORNIA.
    No. 5,
    Original.
    Decided June 23, 1947, and May 17, 1965. — Order and Decree Entered October 27, 1947.
    Supplemental Decree Entered January 31, 1966.

      Solicitor General Marshall, Louis F. Claiborne and George S. Swarth for the United States.

      Thomas C. Lynch, Attorney General of California, Jay L. Shavelson, Assistant Attorney General, Richard H. Keatinge, Special Assistant Attorney General, and Warren J. Abbott and N. Gregory Taylor, Deputy Attorneys General, for the State of California.
   Per Curiam.

In accordance with the Court’s opinion in United States v. California, 381 U. S. 139, proposed decrees have been submitted by the parties. The Court has examined such proposed decrees and the briefs and papers submitted in support thereof, and enters the following decree:

Supplemental Decree.

The United States having moved for entry of a supplemental decree herein, and the matter having been referred to the late William H. Davis as Special Master to hold hearings and recommend answers to certain questions with respect thereto, and the Special Master having held such hearings and having submitted his report, and the issues having been modified by the supplemental complaint of the United States and the answer of the State of California thereto, and the parties having filed amended exceptions to the report of the Special Master, and the Court having received briefs and heard argument with respect thereto and having by its opinion of May 17, 1965, approved the recommendations of the Special Master, with modifications, it is Ordered, Adjudged and Decreed that the decree heretofore entered in this cause on October 27, 1947, 332 U. S. 804, be, and the same is hereby, modified to read as follows:

1. As against the State of California and all persons claiming under it, the subsoil and seabed of the continental shelf, more than three geographical miles seaward from the nearest point or points on the coast line, at all times pertinent hereto have appertained and now appertain to the United States and have been and now are subject to its exclusive jurisdiction, control and power of disposition. The State of California has no title thereto or property interest therein.

2. As used herein, “coast line” means—

(a) The line of mean lower low water on the mainland, on islands, and on low-tide elevations lying wholly or partly within three geographical miles from the line of mean lower low water on the mainland or on an island; and

(b) The line marking the seaward limit of inland waters.

The coast line is to be taken as heretofore or hereafter modified by natural or artificial means, and includes the outermost permanent harbor works that form an integral part of the harbor system within the meaning of Article 8 of the Convention on the Territorial Sea and the Contiguous Zone, T. I. A. S. No. 5639.

3. As used herein—

(a) “Island” means a naturally-formed area of land surrounded by water, which is above the level of mean high water;

(b) “Low-tide elevation” means a naturally-formed area of land surrounded by water at mean lower low water, which is above the level of mean lower low water but not above the level of mean high water;

(c) “Mean lower low water” means the average elevation of all the daily lower low tides occurring over a period of 18.6 years;

(d) “Mean high water” means the average elevation of all the high tides occurring over a period of 18.6 years;

(e) “Geographical mile” means a distance of 1852 meters (6076.10333 . . . U. S. Survey Feet or approximately 6076.11549 International Feet).

4. As used herein, “inland waters” means waters landward of the baseline of the territorial sea, which are now recognized as internal waters of the United States under the Convention on the Territorial Sea and the Contiguous Zone. The inland waters referred to in paragraph 2 (b) hereof include—

(a) Any river or stream flowing directly into the sea, landward of a straight line across its mouth;

(b) Any port, landward of its outermost permanent harbor works and a straight line across its entrance;

(c) Any “historic bay,” as that term is used in paragraph 6 of Article 7 of the Convention, defined essentially as a bay over which the United States has traditionally asserted and maintained dominion with the acquiescence of foreign nations;

(d) Any other bay (defined as a well-marked coastal indentation having such penetration, in proportion to the width of its entrance, as to contain landlocked waters, and having an area, including islands within the bay, at least as great as the area of a semicircle whose diameter equals the length of the closing line across the entrance of the bay, or the sum of such closing lines if the bay has more than one entrance), landward of a straight line across its entrance or, if the entrance is more than 24 geographical miles wide, landward of a straight line not over 24 geographical miles long, drawn within the bay so as to enclose the greatest possible amount of water. An estuary of a river is treated in the same way as a bay.

5. In drawing a closing line across the entrance of any body of inland water having pronounced headlands, the line shall be drawn between the points where the plane of mean lower low water meets the outermost extension of the headlands. Where there is no pronounced headland, the line shall be drawn to the point where the line of mean lower low water on the shore is intersected by the bisector of the angle formed where a line projecting the general trend of the line of mean lower low water along the open coast meets a line projecting the general trend of the line of mean lower low water along the tributary waterway.

6. Roadsteads, waters between islands, and waters between islands and the mainland are not per se inland waters.

7. The inland waters of the Port of San Pedro are those enclosed by the breakwater and by straight lines across openings in the breakwater; but the limits of the port, east of the eastern end of the breakwater, are not determined by this decree.

8. The inland waters of Crescent City Harbor are those enclosed within the breakwaters and a straight line from the outer end of the west breakwater to the southern extremity of Whaler Island.

9. The inland' waters of Monterey Bay are those enclosed by a straight line between Point Pinos and Point Santa Cruz.

10. The description of the inland waters of the Port of San Pedro, Crescent City Harbor, and Monterey Bay, as set forth in paragraphs 7, 8, and 9 hereof, does not imply that the three-mile limit is to be measured from the seaward limits of those inland waters in places where the three-mile limit is placed farther seaward by the application of any other provision of this decree.

11. The following are not historic inland waters, and do not comprise inland waters except to the extent that they rpay be enclosed by lines as hereinabove described for the enclosure- of inland waters other than historic bays:

(a) Waters between the Santa Barbara or Channel Islands, or between those islands and the mainland;

(b) Waters adjacent to the coast between Point Conception and Point Hueneme;

(c) Waters adjacent to the coast between Point Fer-min and Point Lasuen (identified as the bluffs at the end of the Las Bolsas Ridge at Huntington Beach) ;

(d) Waters adjacent to the coast between Point Lasuen and the western headland of Newport Bay;

(e) Santa Monica Bay;

(f) Crescent City Bay;

(g) San Luis Obispo Bay.

12. With the exceptions provided by § 5 of the Submerged Lands Act, 67 Stat. 32, 43 U. S. C. § 1313 (1964 ed.), and subject to the powers reserved to the United States by § 3 (d) and § 6 of said Act, 67 Stat. 31, 32, 43 U. S. C. §§ 1311 (d) and 1314 (1964 ed.), the State of California is entitled, as against the United States, to the title to and ownership of the tidelands along its coast (defined as the shore of the mainland and of islands, between the line of mean high water and the line of mean lower low water) and the submerged lands, minerals, other natural resources and improvements underlying the inland waters and the waters of the Pacific Ocean within three geographical miles seaward from the coast line and bounded on the north and south by the northern and southern boundaries of the State of California, including the right and power to manage, administer, lease, develop and use the said lands and natural resources all in accordance with applicable State law. The United States is not entitled, as against the State of California, to any right, title or interest in or to said lands, improvements and natural resources except as provided by § 5 of the Submerged Lands Act.

13. The parties shall submit to the Court for its approval any stipulation or stipulations that they may enter into, identifying with greater particularity all or any part of the boundary line, as defined by this decree, between the submerged lands of the United States and the submerged lands of the State of California, or identifying any of the areas reserved to the United States by § 5 of the Submerged Lands Act. As to any portion of such boundary line or of any areas claimed to have been reserved under § 5 of the Submerged Lands Act as to which the parties may be unable to agree, either party may apply to the Court at any time for entry of a further supplemental decree.

14. The Court retains jurisdiction to entertain such further proceedings, énter such orders, and issue such writs as may from time to time be deemed necessary or advisable to give proper force and effect to this decree or to effectuate the rights of the parties in the premises.

The Chief Justice, Mr. Justice Clark, and Mr. Justice Fortas took no part in the formulation of this decree.


text:
    UNITED STATES et al. v. WILSON & CO., INC., et al.
    No. 56.
    Decided January 31, 1966.

      Solicitor General Marshall for the United States et al.

      Howard J. Trienens for respondents American Telephone & Telegraph Có. et al.
   Per Curiam.

The joint motion of counsel to remand is granted and the case is remanded to the United States Court of Appeals for the Seventh Circuit in order to permit the entry of a decree of restitution in accordance with the agreement of the parties.


text:
    BECK v. McLEOD, ATTORNEY GENERAL OF SOUTH CAROLINA.
    No. 770,
    Decided January 31, 1966.

      Samuel C. Craven for appellant.

      Daniel R. McLeod, Attorney General of South Carolina, and Everett N. Brandon, Assistant Attorney General, for appellee.
   Per Curiam.

The judgment is affirmed.


text:
    RAINSBERGER v. NEVADA.
    No. 368,
    Misc.
    Decided January 31, 1966.

      Samuel S. Lionel for appellant.

      Paul C. Parraguirre for appellee.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question.


text:
    NAWROCKI v. MICHIGAN.
    No. 966,
    Misc.
    Decided January 31, 1966.
   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.


text:
    PLATT, CHIEF JUDGE, U. S. DISTRICT COURT v. MINNESOTA MINING & MANUFACTURING CO.
    No. 274.
    Decided January 31, 1966.

      Solicitor General Marshall, former Solicitor General Cox, Acting Assistant Attorney General Wright and Lionel Kestenbaum for petitioner.

      John T. Chadwell, Glenn W. McGee, Allan J. Reniche, William H. Abbott and John L. Connolly for respondent.
   Per Curiam.

Upon consideration of the suggestion of mootness filed by the Solicitor General and upon an examination of the entire record, the petition for a writ of certiorari is granted, the judgment of the United States Court of Appeals for the Seventh Circuit is vacated and the case is remanded to that court with instructions to dismiss the mandamus proceeding as moot.


text:
    No. 231,
    Misc.
    Meunier v. United States.
   C. A. 5th Cir.

Petition for writ of certiorari dismissed July 8, 1965, pursuant to Rule 60 of the Rules of this Court.


text:
    No. 93.
    Crane Co. v. Evans-Hailey Co., Inc.

      Cecil Sims for appellant.
   Appeal from D. C. M. D. Tenn. dismissed July 21, 1965, pursuant to Rule 60 of the Rules of this Court.


text:
    No. 20,
    Original.
    Kansas v. Colorado.

      Robert C. Londerholm, Attorney General of Kansas, and Charles N. Henson, Jr., Assistant Attorney General, for plaintiff.

      Duke W. Dunbar, Attorney General of Colorado, James D. Geissinger and Raphael J. Moses, Assistant Attorneys General, and Donald H. Hamburg, Special Assistant Attorney General, for defendant.
   Motion for leave to file bill of complaint dismissed August 2, 1965, pursuant to Rule 60 of the Rules of this Court.


text:
    No. 54.
    Milgram Food Stores, Inc. v. Ketchum, Supervisor, Missouri Department of Liquor Control.

      F. Philip Kirwan for petitioner.
   Sup. Ct. Mo. Petition for writ of certiorari dismissed August 2, 1965, pursuant to Rule 60 of the Rules of this Court.


text:
    No. 326.
    M & J Diesel Locomotive Filter Corp. et al. v. Briggs et al.

      Edwin A. Rothschild for petitioners.
   C. A. 7th Cir. Petition for writ of certiorari dismissed August 19, 1965, pursuant to Rule 60 of the Rules of this Court.


text:
    No. 171,
    Misc.
    Stanley v. New York.
   Ct. App. N. Y. Petition for writ of certiorari dismissed August 31, 1965, pursuant to Rule 60 of the Rules of this Court.


text:
    No. 236.
    Consolidated Freightways Corp. of Delaware v. United States et al.

      William H. Dempsey, Jr., and Eugene T. Liipfert for appellant.

      Solicitor General Cox, Assistant Attorney General Turner, Lionel Kesten-baum, I. Daniel Stewart, Jr., Robert W. Ginnane and Robert S. Burk for the United States.

      Earle V. White for appellee Everts’ Commercial Transport, Inc.
   Appeal from D. C. N. D. Cal. dismissed September 1, 1965, pursuant to Rule 60 of the Rules of this Court.


text:
    No. 475,
    Misc.
    Craig v. Nebraska.
   C. A. 8th Cir. Petition for writ of certiorari dismissed September 21, 1965, pursuant to Rule 60 of the Rules of this Court.