text:
    AMERICAN TRIAL LAWYERS ASSN., NEW JERSEY BRANCH, et al. v. NEW JERSEY SUPREME COURT
    No. 72-691.
    Decided January 15, 1973
   Per Curiam.

On December 21, 1971, the Supreme Court of New Jersey announced the adoption of Rule 1:21-7, effective January 31, 1972, establishing a graduated schedule of maximum contingent fees applicable to tort litigation conducted by New Jersey attorneys. Appellants, representing members of the New Jersey bar, brought this action to enjoin the enforcement of the rules on the grounds that they violate several provisions of the Constitution, including the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The trial judge convened a three-judge court. 28 U. S. C. § 2281.

After hearing argument on the merits, the District Court pointed out that:

“ [Essentially the case poses a dispute between a state’s highest court and those persons authorized by that court to practice law in the state. The relationship between the parties thus is an extremely delicate one. Under such circumstances federal courts generally have considered it appropriate, before attempting any direct federal intervention at the outset, first to permit the state courts to process the dispute. Cf. Reetz v. Bozanich, 397 U. S. 82, 85-87 (1970).”

The court added that “[a]s was true in Reetz the initial issue is whether the state constitution authorized the enactment challenged.” The court therefore granted defendant-appellee’s motion to dismiss.

By timely motion under Fed. Rule Civ. Proc. 59 (e), appellants sought an order amending the judgment by either

“(A) Retaining jurisdiction, but staying proceedings in this Court pending determination of the issues of state law in the courts of New Jersey, or until efforts to obtain such a determination have been exhausted; or
“(B) Ordering that the dismissal be without prejudice, so that the suits for determination of the federal constitutional issues may be reinstituted after exhausting state recourse with respect to state law issues.” Jurisdictional Statement 10.

The motion was denied and appellants brought this appeal.

“[AJbstention 'does not, of course, involve the abdication of federal jurisdiction, but only the postponement of its exercise.’ ” England v. Louisiana State Board of Medical Examiners, 375 U. S. 411, 416 (1964), quoting from Harrison v. NAACP, 360 U. S. 167, 177 (1959). For that reason, we have held that a dismissal on grounds of abstention so as to permit a state court to pass on an issue of state law must not be with prejudice. Doud v. Hodge, 350 U. S. 485 (1956); Lake Carriers’ Assn. v. MacMullan, 406 U. S. 498 (1972). The proper course is for the District Court to retain jurisdiction pending the proceedings in the state courts. Lake Carriers’ Assn. v. MacMullan, supra, at 512-513; Zwickler v. Koota, 389 U. S. 241, 244-245, n. 4 (1967). Although the District Court may have intended its judgment of dismissal to be without prejudice to the right of appellants to litigate their federal claims in federal court at the conclusion of the state proceeding, the court did deny appellants’ motion for an amendment to the judgment making clear that no prejudice would attach. The motion should have been granted. Accordingly, we vacate the judgment of the District Court and remand the case for proceedings consistent with this opinion.

So ordered.

       Rule 1:21-7 provides in part:
      “(c) In any matter where, a client’s claim for damages is based upon the alleged tortious conduct of another, including products liability claims, and the client is not a subrogee, an attorney shall not contract for, charge, or collect a contingent fee in excess of the following limits:
      “(1) 50% on the first $1000 recovered;
      “(2) 40% on the next $2000 recovered;
      “(3) 33%% on the next $47,000 recovered;
      “(4) 20% on the next $50,000 recovered;
      “(5) 10% on any amount recovered over $100,000 . . . .”

       Appellee maintained below, as it maintains before this Court, that a three-judge court need not have been convened because the constitutional question presented is insubstantial. Bailey v. Patterson, 369 U. S. 31 (1962). It insists, however, that if the claim is substantial then it must be heard by a court of three judges, 28 U. S. C. § 2281. In view of the posture of the case on this appeal, we do not, of course, express any view on the merits of the question presented.

       The validity of the District Court’s decision to abstain is not at issue on this appeal.

       “It is better practice, in a case raising a federal constitutional or statutory claim [where the doctrine of abstention is applied], to retain jurisdiction, rather than to dismiss . . . .” Zwickler, supra, at 244 n. 4.


source: Caselaw Access Project

author:
Mr. Justice Stewart
      Mr. Justice Powell, Mr. Justice Rehnquist,

license: Public Domain

text:
    ALMOTA FARMERS ELEVATOR & WAREHOUSE CO. v. UNITED STATES
    No. 71-951.
    Argued October 18, 1972
    Decided January 16, 1973
    StewaRT, J., delivered the opinion of the Court, in which Douglas, Brennan, Marshall, and Powell, JJ., joined. Powell, J., filed a concurring opinion, in which Douglas, J., joined, post, p. 479. Rehnquist, J., filed a dissenting opinion, in which Burger, C. J., and White and Blackmun, JJ., joined, post, p. 480.

      Lawrence Earl Hickman argued the cause for petitioner. With him on the briefs was Philip H. Faris.

      Assistant Attorney General Frizzell argued the cause for the United States. With him on the brief were Solicitor General Griswold, Wm. Terry Bray, Edmund B. Clark, and Jacques B. Gelin.

   Mr. Justice Stewart

delivered the opinion of the Court.

Since 1919 the petitioner, Almota Farmers Elevator & Warehouse Co., has conducted grain elevator operations on land adjacent to the tracks of the Oregon-Washington. Railroad & Navigation Co. in the State of Washington. It has occupied the land under a series of successive leases from the railroad. In 1967, the Government instituted this eminent domain proceeding to acquire the petitioner’s property interest by condemnation. At that time there were extensive buildings and other improvements that had been erected on the land by the petitioner, and the then-current lease had 7y% years to run.

In the District Court the Government contended that just compensation for the leasehold interest, including the structures, should be “the fair market value of the legal rights possessed by the defendant by virtue of the lease as of the date of taking,” and that no consideration should be given to any additional value based on the expectation that the lease might be renewed. The petitioner urged that, rather than this technical “legal rights theory,” just compensation should be measured by what a willing buyer would pay in an open market for the petitioner’s leasehold.

As a practical matter, the controversy centered upon the valuation to be placed upon the structures and their appurtenances. The parties stipulated that the Government had no need for these improvements and that the petitioner had a right to remove them. But that stipulation afforded the petitioner only what scant salvage value the buildings might bring. The Government offered compensation for the loss of the use and occupancy of the buildings only over the remaining term of the lease. The petitioner contended that this limitation upon compensation for the use of the structures would fail to award what a willing buyer would have paid for the lease with the improvements, since such a buyer would expect to have the lease renewed and to continue to use the improvements in place. The value of the buildings, machinery, and equipment in place would be substantially greater than their salvage value at the end of the lease term, and a purchaser in an open market would pay for the anticipated use of the buildings and for the savings he would realize from not having to construct new improvements himself. In sum, the dispute concerned whether Almota would have to be satisfied with its right to remove the structures with their consequent salvage value or whether it was entitled to an award reflecting the value of the improvements in place beyond the lease term.

In a pretrial ruling, the District Court accepted the petitioner's theory and held that Almota was to be compensated for the full market value of its leasehold “and building improvements thereon as of the date of taking . . . , the total value of said leasehold and improvements ... to be what the interests of said company therein could have been then sold for upon the open market considering all elements and possibilities whatsoever found to then affect the market value of those interests including, but not exclusive of, the possibilities of renewal of the lease and of the landlord requiring the removal of the improvements in the event of there being no lease renewal.” The court accordingly ruled that the petitioner was entitled to the full fair market value of the use of the land and of the buildings in place as they stood at the time of the taking, without limitation of such use to the remainder of the term of the existing lease.

On appeal, the Court of Appeals for the Ninth Circuit reversed, 450 F. 2d 125; it accepted the Government’s theory that a tenant’s expectancy in a lease renewal was. not a compensable legal interest and could not be included in the valuation of structures that the tenant had built on the property. It rejected any award for the use of improvements beyond the lease term as “compensation for expectations disappointed by the exercise of the sovereign power of eminent domain, expectations not based upon any legally protected right, but based only . . . upon ‘a speculation on a chance.’ ” 450 F. 2d, at 129. The court explicitly refused to follow an en banc decision of the Court of Appeals for the Second Circuit, relied upon by the District Court, which had held that for condemnation purposes improvements made by a lessee are to be assessed at their value in place over their useful life without regard to the term of the lease. United States v. Certain Property, Borough of Manhattan, 388 F. 2d 596, 601.

In view of this conflict in the circuits, we granted certiorari, 405 U. S. 1039, to decide an important question of eminent domain law: “Whether, upon condemnation of a leasehold, a lessee with no right of renewal is entitled to receive as compensation the market value of its improvements without regard to the remaining term of its lease, because of the expectancy that the lease would have been renewed.” We find that the view of the Court of Appeals for the Second Circuit is in accord with established principles of just-compensation law under the Fifth Amendment, and therefore reverse the judgment before us and reinstate the judgment of the District Court.

The Fifth Amendment provides that private property shall not be taken for public use without “just compensation.” “And ‘just compensation’ means the full monetary equivalent of the property taken. The owner is to be put in the same position monetarily as he would have occupied if his property had not been taken.” United States v. Reynolds, 397 U. S. 14, 16 (footnotes omitted). See also United States v. Miller, 317 U. S. 369, 373. To determine such monetary equivalence, the Court early established the concept of “market value”: the owner is entitled to the fair market value of his property at the time of the taking. New York v. Sage, 239 U. S. 57, 61. See also United States v. Reynolds, supra, at 16; United States v. Miller, supra, at 374. And this value is normally to be ascertained from “what a willing buyer would pay in cash to a willing seller.” Ibid. See United States v. Virginia Electric & Power Co., 365 U. S. 624, 633.

By failing to value the improvements in place over their useful life — taking into account the possibility that the lease might be renewed as well as the possibility that it might not — the Court of Appeals in this case failed to recognize what a willing buyer would have paid for the improvements. If there had been no condemnation, Almota would have continued to use the improvements during a renewed lease term, or if it sold the improvements to the fee owner or to a new lessee at the end of the lease term, it would have been compensated for the buyer’s ability to use the improvements in place over their useful life. As Judge Friendly wrote for the Court of Appeals for the Second Circuit:

“Lessors do desire, after all, to keep their properties leased, and an existing tenant usually has the inside track to a renewal for all kinds of reasons — avoidance of costly alterations, saving of brokerage commissions, perhaps even ordinary decency on the part of landlords. Thus, even when the lease has expired, the condemnation will often force the tenant to remove or abandon the fixtures long before he would otherwise have had to, as well as deprive him of the opportunity to deal with the landlord or a new tenant — the only two people for whom the fixtures would have a value unaffected by the heavy costs of disassembly and reassembly. The con-demnor is not entitled to the benefit of assumptions, contrary to common experience, that the fixtures would be removed at the expiration of the stated term.” United States v. Certain Property, Borough of Manhattan, 388 F. 2d, at 601-602 (footnote omitted).

It seems particularly likely in this case that Almota could have sold the leasehold at a price that would have reflected the continued ability of the buyer to use the improvements over their useful life. Almota had an unbroken succession of leases since 1919, and it was in the interest of the railroad, as fee owner, to continue leasing the property, with its grain elevator facilities, in order to promote grain shipments over its lines. In a free market, Almota would hardly have sold the leasehold to a purchaser who paid only for the use of the facilities over the remainder of the lease term, with Almota retaining the right thereafter to remove the facilities — in effect, the right of salvage. “Because these fixtures diminish in value upon removal, a measure of damages less than their fair market value for use in place would constitute a substantial taking without just compensation. ‘[I]t is intolerable that the state, after condemning a factory or warehouse, should surrender to the owner a stock of secondhand machinery and in so doing discharge the full measure of its duty.' ” United States v. 1,132.50 Acres of Land, 441 F. 2d 356, 358.

United States v. Petty Motor Co., 327 U. S. 372, upon which the Government primarily relies, does not lead to a contrary result. The Court did indicate that the measure of damages for the condemnation of a leasehold is to be measured in terms of the value of its use and occupancy for the remainder of the lease term, and the Court refused to elevate an expectation of renewal into a com-pensable legal interest. But the Court was not dealing there with the fair market value of improvements. Unlike Petty Motor, there is no question here of creating a legally cognizable value where none existed, or of compensating a mere incorporeal expectation. The petitioner here has constructed the improvements and seeks only their fair market value. Petty Motor should not be read to allow the Government to escape paying what a willing buyer would pay for the same property.

The Government argues that it would be unreasonable to compensate Almota for the value of the improvements measured over their useful life, since the Government could purchase the fee and wait until the expiration of the lease term to take possession of the land. Once it has purchased the fee, the argument goes, there is no further expectancy that the improvements will be used during their useful life since the Government will assuredly require their removal at the end of the term. But the taking for the dam was one act requiring proceedings against owners of two interests. At the time of that “taking” Almota had an expectancy of continued occupancy of its grain elevator facilities. The Government must pay just compensation for those interests “probably within the scope of the project from the time the Government was committed to it.” United States v. Miller, 317 U. S., at 377. Cf. United States v. Reynolds, 397 U. S., at 16-18. It may not take advantage of any depreciation in the property taken that is attributable to the project itself. Id., at 16; United States v. Virginia Electric & Power Co., 365 U. S., at 635-636. At the time of the taking in this case, there was an expectancy that the improvements would be used beyond the lease term. But the Government has sought to pay compensation on the theory that at that time there was no possibility that the lease would be renewed and the improvements used beyond the lease term. It has asked that the improvements be valued as though there were no possibility of continued use. That is not how the market would have valued such improvements; it is not what a private buyer would have paid Almota.

“The constitutional requirement of just compensation derives as much content from the basic equitable principles of fairness, United States v. Commodities Trading Cory., 339 U. S. 121, 124 (1950), as it does from technical concepts of property law.” United States v. Fuller, post, at 490. It is, of course, true that Almota should be in no better position than if it had sold its leasehold to a private buyer. But its position should surely be no worse.

The judgment before us is reversed and the judgment of the District Court reinstated.

Mr. Justice Powell,

with whom Mr. Justice Douglas joins,

concurring.

I join the opinion of the Court, but add a few words to indicate what I find implicit in its rejection of the Government’s claim to act as if it were Almota’s landlord.

It is clear, first of all, that the market value of improvements placed on a leasehold interest will vary depending in major part upon the probable future conduct of the landlord. In this case, based on the experience of nearly half a century and the evident self-interest of the landlord railroad, this conduct could be predicted with considerable confidence. There was every expectation that the improvements would continue to have significant value beyond the term of the present lease. In a transaction between a willing buyer and a willing seller, there can be no doubt that this value would have been accorded appropriate weight.

On different facts, the market value of Almota’s interest might have been significantly lower. If, for example, the railroad had relocated its tracks before the Government entered the picture, the leasehold improvements would have been nearly valueless in the market. A risk which Almota took in erecting those improvements, the risk that the railroad would relocate its tracks, would have proved a poor one. The risk would have been substantially the same if, independently of the present navigation project, the Government had purchased the railroad with the intention of operating it, and thereafter had decided to relocate it or to discontinue operation. Under those circumstances, the Government could properly have acted as an ordinary landlord, and its lessees could have been expected to bear the risk that it would put its land to a new use.

Here, however, the Government held no interest in the land until its navigation project required the acquisition of both the fee and the leasehold interests. If, at that point, the Government had condemned both interests in a single proceeding, or in separate proceedings, Almota would have been entitled to compensation for the value of the improvements beyond the present lease term. Al-mota bore the risk that the railroad would change its plans, but should not be forced to bear the risk that the Government would condemn the fee and change its use. Where multiple properties or property interests are condemned for a particular public project, the Government must pay pre-existing market value for each. Neither the Government nor the condemnee may take advantage of “an alteration in market value attributable to the project itself.” United States v. Reynolds, 397 U. S. 14, 16 (1970); cf. United States v. Virginia Electric & Power Co., 365 U. S. 624, 635-636 (1961); United States v. Miller, 317 U. S. 369, 377 (1943).

The result should not be different merely because the Government arranged to acquire the fee interest by negotiation rather than by condemnation. Apart from cases where, as in United States v. Rands, 389 U. S. 121 (1967), the Government has a property interest antedating but within the bounds of its present project, it would be unjust to allow the Government to use “salami tactics” to reduce the amount of one property owner’s compensation by first acquiring an adjoining piece of property or another interest in the same property from another property owner. While United States v. Petty Motor Co., 327 U. S. 372 (1946), arguably establishes an exception to this principle, I subscribe to the Court’s narrow construction of that case.

Mr. Justice Rehnquist,

with whom The Chief Justice, Mr. Justice White, and Mr. Justice Black-mun join,

dissenting.

Petitioner is entitled to compensation for so much of its private “property” as was taken for public use. The parties concede that petitioner's property interest here taken was the unexpired portion of a 20-year lease on land owned by the Oregon-Washington Railroad & Navigation Co. near Colfax, Washington. The Court recognizes the limited nature of petitioner’s interest in the real property taken, but concludes that it was entitled to have its leasehold and improvements valued in such a way as to include the probability that petitioner’s 20-year lease would have been renewed by the railroad at its expiration.

There is a plausibility about’the Court’s resounding endorsement of the concept of “fair market value” as the touchstone for valuation, but the result reached by the Court seems to me to be quite at odds with our prior cases. Even in its sharply limited reading of United States v. Petty Motor Co., 327 U. S. 372 (1946), the Court concedes that the petitioner’s expectation of having its lease renewed upon expiration is not itself an interest in property for which it may be compensated. But the Court permits the same practical result to be reached by saying that, at least in the case of improvements, the fair market value may be computed in terms of a willing buyer’s expectation that the lease would be renewed.

In United States v. Petty Motor Co., supra, the Government acquired by condemnation the use of a structure occupied by tenants in possession under leases for various unexpired terms. The Court held that the measure of damages for condemnation of a leasehold is the value of the tenant’s use of the leasehold for the remainder of the agreed term, less the agreed rent. The Court considered the argument, essentially the same raised by petitioner here, that a history of past renewal of the leases to existing tenants creates a compensable expectancy, but held that the right to compensation should be measured solely on the basis of the remainder of the tenant’s term under the lease itself. Id,., at 380. In so deciding, the Court stated:

“The fact that some tenants had occupied their leaseholds by mutual consent for long periods of years does not add to their rights. Emery v. Boston Terminal Co., 178 Mass. 172, 185, 50 N. E. 763 [per Holmes, C. J.]:
“ Tt appeared that the owners had been in the habit of renewing the petitioners’ lease from time to time .... Changeable intentions are not an interest in land, and although no doubt such intentions may have added practically to the value of the petitioners’ holding, they could not be taken into account in determining what the respondent should pay. They added nothing to the tenants’ legal rights, and legal rights are all that must be paid for. Even if such intentions added to the saleable value of the lease, the addition would represent a speculation on a chance, not a legal right.’ ” Id., at 380 n. 9.

The holding in Petty was consistent with a long line of cases to the effect that the Fifth Amendment does not require, on a taking of a property interest, compensation for mere expectancies of profit, or for the frustration of licenses or contractual rights that pertain to the land, but that are not specifically taken and that are not vested property interests. Omnia Commercial Co. v. United States, 261 U. S. 502, 510 (1923); Sinclair Pipe Line Co. v. United States, 152 Ct. Cl. 723, 728, 287 F. 2d 175, 178 (1961); Chicago, M., St. P. & P. R. Co. v. Chicago, R. I. & P. R. Co., 138 F. 2d 268, 270-271 (CA8 1943), cert. denied, 320 U. S. 804 (1944).

While the inquiry as to what property interest is taken by the condemnor and the inquiry as to how that property interest shall be valued are not identical ones, they cannot be divorced without seriously undermining a number of rules dealing with the law of eminent domain that this Court has evolved in a series of decisions through the years. The landowner, after all, is interested, not in the legal terminology used to describe the property taken from him by the condemnor, but in the amount of money he is to be paid for that property. It will cause him little remorse to learn that his hope for a renewal of a lease for a term of years is not a property interest for which the Government must pay, if in the same breath he is told that the lesser legal interest that he owns may be valued to include the hoped-for renewal.

The notion of “fair market value” is not a universal formula for determining just compensation under the Fifth Amendment. In United States v. Miller, 317 U. S. 369, 374 (1943), the Court said of market value:

“Respondents correctly say that value is to be ascertained as of the date of taking. But they insist that no element which goes to make up value as at that moment is to be discarded or eliminated. We think the proposition is too broadly stated.”

It is quite apparent that the property on which the owner operates a prosperous retail establishment would command more in an open market sale than the fair value of so much of the enterprise as was “private property” within the meaning of the Fifth Amendment. Yet Mitchell v. United States, 267 U. S. 341 (1925), stands squarely for the proposition that the value added to the property taken by the existence of a going business is no part of the just compensation for which the Government must pay for taking the property:

“No recovery therefor can be had now as for a taking of the business. There is no finding as a fact that the Government took the business, or that what it did was intended as a taking. If the business was destroyed, the destruction was an unintended incident of the taking of land.” Id., at 345.

More recently, in United States ex rel. TVA v. Powelson, 319 U. S. 266, 283 (1943), the Court generalized further:

“That which is not 'private property’ within the meaning of the Fifth Amendment likewise may be a thing of value which is destroyed or impaired by the taking of lands by the United States. But like the business destroyed but not 'taken’ in the Mitchell case it need not be reflected in the award due the landowner unless Congress so provides.”

In either Mitchell or Powelson, the result would in all probability have been different had the Court applied the reasoning that it applies in this case. Here, too, the improvements on the property are not desired by the Government for the project in question, but the taking of petitioner’s leasehold interest prevents its continuing to have their use for the indefinite future as it had anticipated. The Court says that although its “property” interest would have expired in 7% years, the market value of that interest may be computed on the basis of expectancies that do not rise to the level of a property interest under the Fifth Amendment.

If permissible methods of valuation are to be thus totally set free from the property interest that they purport to value, it is difficult to see why the same standards should not be applied to a going business. Although the Government does not take the going business, and although the business is not itself a “property” interest within the Fifth Amendment, since purchasers on the open market would have paid an added increment of value for the property because a business was located on it, it may well be that such increment of value is properly included in a condemnation award under the Court’s holding today. And it will assuredly make no difference to the property owner to learn that destruction of a going business is not compensable, if he be assured that the property concededly taken upon which the business was located may be valued in such a way as to include the amount a purchaser would have paid for the business.

The extent to which the Court’s decision in this case will unsettle condemnation law is obscured by the fact that the parties, motivated no doubt by condemnation lawyers’ well-known propensity to enter into factual stipulations that present abstract questions of valuation theory for decision, have stipulated as to amounts to be awarded depending on which party prevails. But the underlying difficulty with petitioner’s theory was lucidly demonstrated by the late Judge Madden in his opinion for the Court of Appeals in this case, referring to the similar holding of the Court of Appeals for the Tenth Circuit in Scully v. United States, 409 F. 2d 1061 (1969):

“If the law were to go into the business of awarding compensation for an expectancy which never materialized, because the sovereign 'took’ the subject of the expectancy, should, in Scully, supra, e. g., the one year lessees be compensated for the loss of a five year occupancy, a 60 year occupancy, a perpetual occupancy? In our instant case, was the stipulation based upon some actuarial computation such as the prospective life of the buildings and machinery, or the life of the railroad, or upon free-ranging guesswork?” United States v. 22.95 Acres of Land, 450 F. 2d 125, 129 (CA9 1971).

The Court’s conclusion gains no support from its citation of the recognized principle that the Government may not take advantage of any depreciation in the property taken that is attributable to the project itself, United States v. Reynolds, 397 U. S. 14 (1970); United States v. Miller, 317 U. S. 369 (1943). The value of petitioner’s property taken could not be diminished by the fact that the river improvement and navigation for which the Government took its property might have had a depressing effect on pre-existing market value. But the Government makes no such contention here. While, under existing principles of constitutional eminent domain law, the value of petitioner’s property was not subject to diminution resulting from the effect on market value of the improvement that the Government proposed to construct, it was subject to the hazard of non-renewal of petitioner’s leasehold interest. The fact that the Government has condemned the underlying fee for the same project, and has therefore made the risk of nonrenewal a certainty, undoubtedly diminishes the market value of petitioner’s leasehold interest. But the diminution results, not from any depressing effect of the improvement that the Government will construct after having taken the leasehold, but from a materialization of the risk of transfer of ownership of the underlying fee to which its value was always subject.

In at least partially cutting loose the notion of “just compensation” from the notion of “private property” that has developed under the Fifth Amendment, the Court departs from the settled doctrine of numerous prior cases that have quite rigorously adhered to the principle that destruction of value by itself affords no occasion for compensation. United States v. Fuller, post, p. 488; United States v. Rands, 389 U. S. 121 (1967). “[Djamage alone gives courts no power to require compensation where there is not an actual taking of property.” United States v. Willow River Power Co., 324 U. S. 499, 510 (1945). “[T]he existence of value alone does not generate interests protected by the Constitution against diminution by the government Reichelderfer v. Quinn, 287 U. S. 315, 319 (1932). While the Court purports to follow this well-established principle by requiring the compensation paid to be determined on the basis of private property actually taken, its endorsement of valuation computed in part on an expectancy that is no part of the property taken represents a departure from this settled doctrine. I therefore dissent.

       This was the statement of the question presented by the Government in opposing the grant of the petition for certiorari. As the petitioner phrased the question, the Court was asked to decide: “In awarding just compensation to a tenant in the condemnation of a leasehold interest in real property, including tenant owned building improvements and fixtures situated thereon, may an element of great inherent value in the improvements be excluded merely because it does not, by itself, rise to the status of a legal property right.” (Emphasis added.)

       The compensation to which Almota is entitled is hardly “totally set free from [its] property interest,” as the dissent suggests. Post, at 484. The improvements are assuredly “private property” that the Government has “taken” and for which it acknowledges it must pay compensation. The only dispute in this case is over how those improvements are to be valued, not over whether Almota is to receive additional compensation for business losses. Almota may well be unable to operate a grain elevator business elsewhere; it may well lose the profits and other values of a going business, but it seeks compensation for none of that. Mitchell v. United States, 267 U. S. 341, did hold that the Government %vas not obliged to pay for business losses caused by condemnation. But it assuredly did not hold that the Government could fail to provide fair compensation for business improvements that are taken — dismiss them as worth no more than scrap value — simply because it did not intend to use them. Indeed, in Mitchell the Government paid compensation both for the land, including its “adaptability for use in a particular business,” id., at 344, and for the improvements thereon.

       Hence, this is not a case where the petitioner is seeking compensation for lost opportunities, see United States ex rel. TVA v. Powelson, 319 U. S. 266, 281-282; Omnia Commercial Co. v. United States, 261 U. S. 502. The petitioner seeks only the fair value of the property taken by the Government.
      Nor is this a case where compensation is to be paid for “the value added to fee lands by their potential use in connection with [Government] permit lands,” United States v. Fuller, post, p. 488, at 494, for neither action by the Government nor location adjacent to public property contributed any element of value to Almota’s leasehold interest.

       It was established at oral argument that while the. Government had contracted to acquire the railroad’s interest, it had not acquired the fee at the time of the taking of the leasehold, nor did it have possession at the time of the trial or appeal.

       “It frequently happens in the ease of a lease for a long term of years that the tenant erects buildings or puts fixtures into the buildings for his own use. Even if the buildings or fixtures are attached to the real estate and would pass with a conveyance of the land, as between landlord and tenant they remain personal property. In the absence of a special agreement to the contrary, such buildings or fixtures may be removed by the tenant at any time during the continuation of the lease, provided such removal may be made without injury to the freehold. This rule, however, exists entirely for the protection of the tenant, and cannot be invoked by the condemnor. If the buildings or fixtures are attached to the real estate, they must be treated as real estate in determining the total award. But in apportioning the award, they are treated as personal property and credited to the tenant.” 4 P. Nichols, Eminent Domain § 13.121 [2] (3d rev. ed. 1971) (footnotes omitted).

       Similarly, the dissent today would value the petitioner’s interest after the Government has condemned the underlying fee, and thus after the value of the petitioner’s interest has been diminished because the risk of nonrenewal of the lease has materialized. But there was only one “taking,” and at the time of that “taking” there was not only a risk that the lease would not be renewed, but a possibility that it would be and that the improvements would be used over their useful life.


author: Mr. Justice Rehnquist MR. Justice Powell,

text:
    UNITED STATES v. FULLER et ux.
    No. 71-559.
    Argued October 18, 1972
    Decided January 16, 1973
    Rehnquist, J., delivered the opinion of the Court, in which Burgee, C. J., and Stewart, White, and Blackmun, JJ., joined. Powell, J., filed a dissenting opinion, in which Douglas, Brennan, and Marshall, JJ., joined, post, p. 494.

      Harry R. Sachse argued the cause for the United States. With him on the briefs were Solicitor General Griswold, Assistant Attorney General Frizzell, Raymond N. Zagone, and Jacques B. Gelin.

      Frank Haze Burch argued the cause for respondents. With him on the brief was Daniel Cracchiolo.

      Francis Gallagher filed a brief for the Montana Public Lands Council as amicus curiae urging affirmance.
   Mr. Justice Rehnquist

delivered the opinion of the Court.

Respondents operated a large-scale “cow-calf” ranch near the confluence of the Big Sandy and Bill Williams Rivers in western Arizona. Their activities were conducted on lands consisting of 1,280 acres that they owned in fee simple (fee lands), 12,027 acres leased from the State of Arizona, and 31,461 acres of federal domain held under Taylor Grazing Act permits issued in accordance with § 3 of the Act, 48 Stat. 1270, as amended, 43 U. S. C. § 315b. The Taylor Grazing Act authorizes the Secretary of the Interior to issue permits to livestock owners for grazing their stock on Federal Government lands. These permits are revocable by the Government. The Act provides, moreover, that its provisions “shall not create any right, title, interest, or estate in or to the lands.” Ibid.

The United States, petitioner here, condemned 920 acres of respondents’ fee lands. At the trial in the District Court for the purpose of fixing just compensation for the lands taken, the parties disagreed as to whether the jury might consider value accruing to the fee lands as a result of their actual or potential use in combination with the Taylor Grazing Act “permit” lands. The Government contended that such element of incremental value to the fee lands could neither be taken into consideration by the appraisers who testified for the parties nor considered by the jury. Respondents conceded that their permit lands could not themselves be assigned any value in view of the quoted provisions of the Taylor Grazing Act. They contended, however, that if on the open market the value of their fee lands was enhanced because of their actual or potential use in conjunction with permit lands, that element of value of the fee lands could be testified to by appraisers and considered by the jury. The District Court substantially adopted respondents’ position, first in a pretrial order and then in its charge to the jury over appropriate objection by the Government.

On the Government’s appeal, the Court of Appeals for the Ninth Circuit affirmed the judgment and approved the charge of the District Court. 442 F. 2d 504. That court followed the earlier case of United States v. Jaramillo, 190 F. 2d 300 (CA10 1951), and distinguished our holding in United States v. Rands, 389 U. S. 121 (1967). The dissenting judge in the Ninth Circuit thought the issue controlled by Rands, supra. We granted certiorari. 404 U. S. 1037 (1972).

Our prior decisions have variously defined the “just compensation” that the Fifth Amendment requires to be made when the Government exercises its power of eminent domain. The owner is entitled to fair market value, United States v. Miller, 317 U. S. 369, 374 (1943), but that term is “not an absolute standard nor an exclusive method of valuation.” United States v. Virginia Electric & Power Co., 365 U. S. 624, 633 (1961). The constitutional requirement of just compensation derives as much content from the basic equitable principles of fairness, United States v. Commodities Trading Corp., 339 U. S. 121, 124 (1950), as its does from technical concepts of property law.

The record shows that several appraiser witnesses for respondents testified that they included as an element of the value that they ascribed to respondents’ fee lands the availability of respondents’ Taylor Grazing Act permit lands to be used in conjunction with the fee lands. Under the District Court’s charge to the jury, the jury was entitled to consider this element of value testified to by the appraisers. This Court has held that generally the highest and best use of a parcel may be found to be a use in conjunction with other parcels, and that any increment of value resulting from such combination may be taken into consideration in valuing the parcel taken. Olson v. United States, 292 U. S. 246, 256 (1934). The question presented by this case is whether there is an exception to that general rule where the parcels to be aggregated with the land taken are themselves owned by the condemnor and used by the condemnee only under revocable permit from the condemnor.

To say that this element of value would be considered by a potential buyer on the open market, and is therefore a component of “fair market value,” is not the end of the inquiry. In United States v. Miller, supra, this Court held that the increment of fair market value represented by knowledge of the Government’s plan to construct the project for which the land was taken was not included within the constitutional definition of “just compensation.” The Court there said:

“But [respondents] insist that no element which goes to make up value ... is to be discarded or eliminated. We think the proposition is too broadly stated. . . .” 317 U. S., at 374.

United States v. Cors, 337 U. S. 325 (1949), held that the just compensation required to be paid to the owner of a tug requisitioned by the Government in October 1942, during the Second World War, could not include the appreciation in market value for tugs created by the Government’s own increased wartime need for such vessels. The Court said: “That is a value which the government itself created and hence in fairness should not be required to. pay.” Id., at 334. A long line of cases decided by this Court dealing with the Government’s navigational servitude with respect to navigable waters evidences a continuing refusal to include, as an element of value in compensating for fast lands that are taken, any benefits conferred by access to such benefits as a potential portsite or a potential hydro-electric site. United States v. Rands, supra; United States v. Twin City Power Co., 350 U. S. 222 (1956); United States v. Commodore Park, 324 U. S. 386 (1945).

These cases go far toward establishing the general principle that the Government as condemnor may not be required to compensate a condemnee for elements of value that the Government has created, or that it might have destroyed under the exercise of governmental authority other than the power of eminent domain. If, as in Rands, the Government need not pay for value that it could have acquired by exercise of a servitude arising under the commerce power, it would seem a fortiori that it need not compensate for value that it could remove by revocation of a permit for the use of lands that it owned outright.

We do not suggest that such a general principle can be pushed to its ultimate logical conclusion. In United States v. Miller, supra, the Court held that “just compensation” did include the increment of value resulting from the completed project to neighboring lands originally outside the project limits, but later brought within them. Nor may the United States “be excused from paying just compensation measured by the value of the property at the time of the taking” because the State in which the property is located might, through the exercise of its lease power, have diminished that value without paying compensation. United States ex rel. TVA v. Powelson, 319 U. S. 266, 284 (1943).

“Courts have had to adopt working rules in order to do substantial justice in eminent domain proceedings.” United States v. Miller, supra, at 375. Seeking as best we may to extrapolate from these prior decisions such a “working rule,” we believe that there is a significant difference between the value added to property by a completed public works project, for which the Government must pay, and the value added to fee lands by a revocable permit authorizing the use of neighboring lands that the Government owns. The Government may not demand that a jury be arbitrarily precluded from considering as an element of value the proximity of a parcel to a post office building, simply because the Government at one time built the post office. But here respondents rely on no mere proximity to a public building or to public lands dedicated to, and open to, the public at large. Their theory of valuation aggregates their parcel with land owned by the Government to form a privately controlled unit from which the public would be excluded. If, as we held in Rands, a person may not do this with respect to property interests subject to the Government’s navigational servitude, he surely may not do it with respect to property owned outright by the Government. The Court’s statement in Rands respecting portsite value is precisely applicable to respondents’ contention here that they may aggregate their fee lands with permit lands owned by the Government for valuation purposes:

“[I]f the owner of the fast lands can demand port site value as part of his compensation, ‘he gets the value of a right that the Government in the exercise of its dominant servitude can grant or withhold as it chooses. ... To require the United States to pay for this . . . value would be to create private claims in the public domain.’ ” 389 U. S., at 125, quoting United States v. Twin City Power Co., 350 U. S., at 228.

We hold that the Fifth Amendment does not require the Government to pay for that element of value based on the use of respondents’ fee lands in combination with the Government’s permit lands.

The Court of Appeals based its holding in part on its conclusion that although the Fifth Amendment might not have required the Government to pay compensation of the sort permitted by the trial court’s charge to the jury, the history of the Taylor Grazing Act indicated that Congress had intended that such compensation be paid. Congress may, of course, provide in connection with condemnation proceedings that particular elements of value or particular rights be paid for even though in the absence of such provision the Constitution would not require payment. United States v. Gerlach Live Stock Co., 339 U. S. 725 (1950). But we do think the factors relied upon by the Court of Appeals fall far short of the direction contained in the Reclamation Act of 1902, 32 Stat. 388, as amended, that payment be made for rights recognized under state law, which was determinative of the outcome in Gerlach. The provisions of the Taylor Grazing Act quoted supra make clear the congressional intent that no compensable property right be created in the permit lands themselves as a result of the issuance of the permit. Given that intent, it would be unusual, we think, for Congress to have turned around and authorized compensation for the value added to fee lands by their potential use in connection with permit lands. We find no such authorization in the applicable congressional enactments.

Reversed.

MR. Justice Powell,

with whom Mr. Justice Douglas, Mr. Justice Brennan, and Mr. Justice Marshall join,

dissenting.

I dissent from a decision which, in my view, dilutes the meaning of the just compensation required by the Fifth Amendment when property is condemned by the Government. As a full understanding of the facts is necessary, I will begin by restating them.

This is a condemnation proceeding brought by the United States to acquire title to 920 of 1,280 acres of land, owned in fee by respondents, which is within the area to be flooded by a dam and reservoir project in Arizona. At the time of the taking respondents used this fee land as a base for a cattle operation known as a “cow-calf” ranch. A dependable source of water allowed intense cultivation of the fee land to provide the basic source of feed for the cattle. In connection with their fee land, respondents used 31,461 acres of adjacent public land on which they held revocable grazing permits issued under the Taylor Grazing Act. 43 U. S. C. § 315 et seq. The public land was used for grazing during favorable seasons, and roads running across the public land connected respondents’ three parcels of fee land.

The permits held by. respondents on the public land accorded exclusive but revocable grazing rights to respondents. By the terms of the Act, the issuance of a permit does not “create any right, title, interest, or estate in or to the lands.” 43 U. S. C. § 315b. Nonetheless, grazing permits are of considerable value to ranchers and serve a corresponding public interest in assuring the “most beneficial use” of range lands. Hatahley v. United States, 351 U. S. 173, 177 (1956). Respondents’ permits had not been revoked at the time of the taking, nor, so far as the record reveals, have they yet been revoked. The record also shows that only a small fraction of the public grazing land will be flooded in the dam and reservoir project. Thus, the public land which respondents assert gave added value to their fee land remains substantially intact and available for Taylor Grazing Act purposes.

The District Court allowed respondents to introduce testimony as to the market value of the fee land which took into consideration its proximity to this public land. In relevant part, the District Court instructed the jury as follows:

“During the course of this trial, reference has been made to grazing permits held by the defendants on public land. You are instructed that such permits are mere licenses which may be revoked and are not compensable as such. However, should you determine that the highest and best use of the property taken is a use in conjunction with those permit lands, you may take those permits into consideration in arriving at your value of the subject land, keeping in mind the possibility that they may be withdrawn or canceled at any time without a constitutional obligation to pay the compensation therefor.
“Evidence has been introduced of defendants’ use of their deeded land which is being taken, in conjunction with surrounding land owned by the United States, for which defendants have grazing permits, and land belonging to the State of Arizona, which defendants leased. In fixing the fair market value of the fee land being taken and the compensation to be awarded, you are not to award defendants any compensation for the land owned by the United States or the State of Arizona. However, in determining the value of the fee land and in awarding compensation to the owners, you should consider the availability and accessibility of the permit and leased land and its use in conjunction with the fee land taken and give to the fee land such value as, in your judgment, according to the evidence, should be given on account of such availability and accessibility of the permit and leased land, if any. You should also consider the possibility that the permits on the United States land could be withdrawn at any time without constitutional obligation to pay compensation therefor and determine the effect you feel such possibility, according to the evidence, would have upon the value of the fee land.” App. 26-27.

I have reproduced this extensive excerpt to underline the careful manner in which the condemnation jury was instructed. Contrary to the implication in the Government’s framing of the question in this case, the jury was not allowed to include "the value of revocable grazing permits.” The instruction expressly stated that “such permits are mere licenses which may be revoked and are not compensable as such.” The emphasis of the instruction was on the location of the fee land, with the resulting “availability and accessibility” of the adjacent public grazing land. I find the instruction to be an appropriate statement of the applicable principles of just compensation.

The opinion of the Court recognizes that the just compensation required by the Fifth Amendment when the Government exercises its power of eminent domain is ordinarily the market value of the property taken. United States v. Miller, 317 U. S. 369, 374 (1943). It is commonplace, in determining market value — whether in condemnation or in private transactions — -to consider such elements of value as derive from the location of the land. But today the Court enunciates an exception to these recognized principles where the value of the land to be condemned may be enhanced by its location in relation to Government-owned property. The Court relies on two lines of cases which, indeed, are said to go far toward establishing

“the general principle that the Government as condemnor may not be required to compensate a condemnee for elements of value that the Government has created, or that it might have destroyed under the exercise of governmental authority other than the power of eminent domain.” Ante, at 492:

Applying this new principle to the present case, the Court now holds that since the Government “created” an element of value by owning grazing land and making it available under the Taylor Grazing Act, and since it has the power to “destroy” this element of value by barring respondents and others from the land, the condemnation jury must ignore the fact that respondents' land is adjacent to public land. Under this formulation, it is quite immaterial that the grazing land remains substantially intact, and that the Government has taken no action— and none is shown to be contemplated in the record— to convert such land to some other use. The test is not whether the Government has in fact put its property to some other use or removed it entirely; rather, it is quite simply whether the Government has the power to do this.

Neither of the lines of cases on which the Court relies seems apposite. The first includes United States v. Miller, supra, in which the Court held that the Government need not pay for an increase in value occasioned by the very project for which the land was condemned, and United States v. Cors, 337 U. S. 325 (1949), in which the Court held that in condemning tugboats during wartime the Government need not offer compensation for an increase in value attributable to its own extraordinary wartime demand for such craft. These cases support only the modest generalization that compensation need not be afforded for an increase in market value stemming from the very Government undertaking which led to the condemnation.

The other cases on which the Court relies, United States v. Rands, 389 U. S. 121 (1967), and United States v. Twin City Power Co., 350 U. S. 222 (1956), deal with the condemnation of lands adjacent to navigable waters. In Bands, the condemnee owned land on the Columbia River which the United States condemned “in connection with the John Day Lock and Dam Project, authorized by Congress as part of a comprehensive plan for the development of the Columbia River.” 389 U. S., at 122. Relying on the “unique position” of the Government “in connection with navigable waters,” ibid., the Court held that no special element of value could be accorded the land by virtue of its possible use as a port. In Twin City, the condemnee was holding land on the Savannah River as a potential hydroelectric powersite. The Government condemned the land as part of a major flood control, navigation, and hydroelectric project. By a bare majority vote, the Court held that the condemnee was not entitled to the “special water-rights value” of the land as a potential powersite, distinguishing other cases with the comment:

“We have a different situation here, one where the United States displaces all competing interests and appropriates the entire flow of the river . . . .” 350 U. S., at 225.

The water rights eases may be subject to varying interpretations, but it is important to remember when interpreting them that they cut sharply against the grain of the fundamental notion of just compensation, that a person from whom the Government takes land is entitled to the market value, including location value, of the land. They could well be confined to cases involving the Government’s “unique position” with respect to “navigable waters.” At most, these cases establish a principle no broader than that the Government need not compensate for location value attributable to the proximity of Government property utilized in the same project. In Rands, as in Twin City, the river adjacent to the property condemned was the focal point of the development project which led to the condemnation. The Government simply decided to put the river to a new use and in connection with that new use condemned adjacent land.

To understand why compensation is not required in such cases, it is important to distinguish the Government’s role as condemnor from its role as property owner. While as condemnor the Government must pay market value, as property owner it may change the use of its property as if it were a private party, without paying compensation for the loss in value suffered by neighboring land.

When the Government condemns adjoining parcels of privately owned land for the same project, it may not take advantage of a drop in market value of one parcel resulting from the decision to condemn another. When, however, as in Bands and Twin City, a project encompasses not only parcels of private land, but also the public property which enhances the value of the private land, a more difficult question is presented. In each of those cases, the Government held a dominant servitude over the flow of a river, and it condemned adjacent private lands in connection with a decision to exercise its servitude. Arguably, the measure of compensation for the taking of the private lands should have included the value of the riparian location unaffected by the Government’s decision to exercise its own rights in the river. But this result would have impinged on the Government’s right to use the river by raising the cost of any new use which required the condemnation of private land.

Accordingly, in those cases the Court excluded evidence of riparian location value since the Government was exercising its lawful power to appropriate “the entire flow of the river.”

“The proper exercise of this power [over navigable waters] is not an invasion of any private property rights in the stream or the lands underlying it, for the damage sustained does not result from taking property from riparian owners within the meaning of the Fifth Amendment but from the lawful exercise of a power to which the interests of riparian owners have always been subject.” United States v. Rands, 389 U. S., at 123.

In any event, the present case is quite different. Respondents’ lands were condemned not because the Government as property owner decided to put its grazing land to some other use and needed additional land, but rather because the Government wanted respondents’ land for a project which left the grazing land substantially intact and available.

The Government’s role here is not an ambiguous one— it is simply a condemnor of private land which happens to adjoin public land. If the Government need not pay location value in this case, what are the limits upon the principle today announced? Will the Government be relieved from paying location value whenever it condemns private property adjacent to or favorably located with respect to Government property? Does the principle apply, for example, to the taking of a gasoline station at an interchange of a federal highway, or to the taking of a farm which in private hands could continue to be irrigated with water from a federal reservoir? The majority proposes to distinguish such cases with the “working rule” that

“there is a significant difference between the value added to property by a completed public works project, for which the Government must pay, and the value added to fee lands by a revocable permit authorizing the use of neighboring lands which the Government owns.” Ante, at 492.

The Court can hardly be drawing a distinction between Government-owned “completed public works” and Government-owned parks and grazing lands in their natural state. The “working rule” as articulated can, therefore, only mean that the respondents’ revocable permit to use the neighboring lands is regarded by the Court as the distinguishing element. This is an acceptance of the Government’s argument that the added value derives from the permit and not from the favorable location with respect to the grazing land. The answer to this, not addressed either by the Government or the Court, is that the favorable location is the central fact. Even if no permit had been issued to these respondents, their three tracts of land — largely surrounded by the grazing land — were strategically located and logical beneficiaries of the Taylor Grazing Act. In determining the market value of respondents’ land, surely this location- — whether or not a permit had been issued• — -would enter into any rational estimate of value. This is precisely the rationale of the District Court’s jury instruction, which carefully distinguished between the revocable permits “not compensable as such” and the “availability and accessibility” of the grazing land. It is this distinction which the Court’s opinion simply ignores.

Finally, I do not think the Court’s deviation from the market-value rule can be justified by invocation of long-established “basic equitable principles of fairness.” Ante, at 490. It hardly serves the principles of fairness as they have been understood in the law of just compensation to disregard what respondents could have obtained for their land on the open market in favor of its value artificially denuded of its surroundings.

I would affirm the judgment of the Court of Appeals.

       In addition, respondents grazed their cattle on 12,027 acres of land leased from the State, but this land is not relevant to the controversy now before us.

       As stated by the Government, the question presented by this ease is:
      “Whether the owner of land taken by the United States is entitled to have included in the measure of his compensation the value of revocable grazing permits on adjoining federal land issued under an Act of Congress which specifies that such grazing permits create no 'right, title, interest, or estate in or to the lands.’ ” Brief for United States 2.
      More accurate, in light of the District Court’s instruction, is respondents’ statement of the question:
      “Whether, in determining the compensation due an owner of land taken by the United States, the jury may consider the availability and accessibility of public lands, so long as consideration is also given the possibility that the grazing permits on the public land may be withdrawn.” Brief for Respondents 1-2.

       Arguably, then, these are water rights eases and nothing more. Suitable sites for hydroelectric plants or port facilities are important natural resources, highly valuable but limited in number, over which the Government has peculiar historical and constitutional sway. On this view, while the Government has equal authority over Taylor Grazing Act land and other Government-owned property, proximity to such property may appropriately be treated differently from proximity to navigable water for the purpose of measuring just compensation. This was one of the bases on which the court below distinguished the water cases from the present case, 442 F. 2d 504, 507 (CA9 1971), and in my view is an alternative ground for affirming the judgment below.

       In two eases decided together involving the condemnation of ranch land used in connection with Taylor Grazing Act land, a panel of the Court of Appeals for the Tenth Circuit followed a similar analysis in awarding location value in one case, United States v. Jaramillo, 190 F. 2d 300 (1951), but not in the other, United States v. Cox, 190 F. 2d 293 (1951). In Jaramillo, the court stated:
      “By appropriate condemnation proceedings . . . the Government took appellee’s fee and leased land as a part of a total of 20,061 acres, to be used for war purposes. But, unlike the Cox and Beasley cases, the 'project did not contemplate the acquisition of the forest land covered by appellee’s permit.” (Emphasis added.) Id., at 301.

       If so, the contrast between condemnation proceedings and other transactions would be stark: the enhancement of value stemming from public highways, paries, buildings, and recreational facilities is commonly recognized for purposes of taxation, mortgaging, and private sales.

       See n. 2, supra.

       Even if, as the Government’s argument suggests is possible, the permits held by respondents had been withdrawn as a prelude to this condemnation, the Taylor Grazing Act contemplates their issuance in the public interest and the record discloses no other private landowners as favorably located to qualify for permits as these respondents.

       Respondents’ witnesses valued the land at figures up to nearly a million dollars, while the Government’s expert witness assigned it a value of $136,500. In what was manifestly a compromise, the jury awarded $350,000.


author: Mr. Justice Rehnquist

text:
    ROBINSON v. NEIL, WARDEN
    No. 71-6272.
    Argued December 6, 1972
    Decided January 16, 1973
    Rehnquist, J., delivered the opinion for a unanimous Court. Brennan, J., filed a separate opinion, in which Douglas and Marshall, JJ., joined, post, p. 511.

      James D. Robinson argued the cause for petitioner. With him on the brief was Jerry H. Summers.

      Bart C. Durham III, Assistant Attorney General of Tennessee, argued the cause for respondent. With him on the brief were David M. Pack, Attorney General, and William C. Koch, Jr., Assistant Attorney General.
   Mr. Justice Rehnquist

delivered the opinion of the Court.

In 1962 petitioner was tried and convicted in the Chattanooga municipal court of three counts of assault and battery in violation of a city ordinance. He was fined $50 and costs on each count. He was later indicted by the grand jury of Hamilton County, Tennessee, which, out of the same circumstances giving rise to the municipal trial, charged him with three offenses of assault with intent to commit murder in violation of state law. The petitioner pleaded guilty to the state charges and received consecutive sentences of three to 10 years for two offenses and three to five years for the third offense. He is presently in the custody of the respondent warden of the Tennessee State Penitentiary.

In 1966 the petitioner unsuccessfully sought habeas corpus relief in state courts on the ground that the second convictions for state offenses violated his federal constitutional guarantee against twice being placed in jeopardy for the same offense. In 1967 federal courts denied a similar request for habeas corpus relief. Robinson v. Henderson, 268 F. Supp. 349 (ED Tenn. 1967), aff’d, 391 F. 2d 933 (CA6 1968). In 1970 the petitioner renewed his claims for habeas relief, basing his arguments on this Court’s intervening decisions in Benton v. Maryland, 395 U. S. 784 (1969), and Waller v. Florida, 397 U. S. 387 (1970). Holding that Waller was to be accorded retrospective effect, the District Court granted the petitioner habeas corpus relief. 320 F. Supp. 894 (ED Tenn. 1971). The Sixth Circuit reversed (452 F. 2d 370 (1971)) and we granted certiorari to decide the retroactivity of Waller v. Florida. 406 U. S. 916 (1972).

The Fifth Amendment’s guarantee that no person be twice put in jeopardy for the same offense was first held binding on the States in Benton v. Maryland, supra. Our subsequent decision in Waller v. Florida, supra, held that the scope of this guarantee precluded the recognition of the “dual sovereignty” doctrine with respect to separate state and municipal prosecutions. Waller involved the theft of a mural from the City Hall of St. Petersburg, Florida. The petitioner there was first tried and convicted of violating city ordinances with respect to the destruction of city property and breach of the peace. Subsequently, he was convicted of grand larceny in violation of state law involving the same theft. The Court stated:

“the Florida courts were in error to the extent of holding that—
“ 'even if a person has been tried in a municipal court for the identical offense with which he is charged in a state court, this would not be a bar to the prosecution of such person in the proper state court.’ ” 397 U. S., at 395.

Prior to this Court’s 1965 decision in Linkletter v. Walker, 381 U. S. 618, there would have been less doubt concerning the retroactivity of the Waller holding. For, until that time, both the common law and our own decisions recognized a general rule of retrospective effect for the constitutional decisions of this Court, e. g., Norton v. Shelby County, 118 U. S. 425, 442 (1886), subject to limited exceptions of a nature such as those stated in Chicot County Drainage District v. Baxter State Bank, 308 U. S. 371 (1940). In Linkletter, the Court, declaring that it was charting new ground (381 U. S., at 628 and n. 13), held that with respect to new constitutional interpretations involving criminal rights “the Constitution neither prohibits nor requires retrospective effect.” Id., at 629. Linkletter and succeeding cases established a set of factors for determining which constitutional rules were to be accorded retrospective and which prospective effect only. The District Court and the Sixth Circuit in this case applied the factors enunciated by these cases to the Waller holding. The Sixth Circuit held, contrary to the conclusion of the District Court, that Waller is not to be applied retroactively.

We do not believe that this case readily lends itself to the analysis established in Linkletter. Certainly, there is nothing in Linkletter or those cases following it to indicate that all rules and constitutional interpretations arising under the first eight Amendments must be subjected to the analysis there enunciated. Linkletter itself announced an exception to the general rule of retro-activity in a decision announcing that the exclusionary rule of Mapp v. Ohio, 367 U. S. 643 (1961), would be given prospective effect only. Linkletter, and the other cases relied upon by the Sixth Circuit, dealt with those constitutional interpretations bearing on the use of evidence or on a particular mode of trial. Those procedural rights and methods of conducting trials, however, do not encompass all of the rights found in the first eight Amendments. Guarantees that do not relate to these procedural rules cannot, for retroactivity purposes, be lumped conveniently together in terms of analysis. For the purpose and effect of the various constitutional guarantees vary sufficiently among themselves so as to affect the necessity for prospective rather than retrospective application.

Linkletter indicated, for instance, that only those procedural rules affecting “the very integrity of the fact-finding process” would be given retrospective effect. 381 U. S., at 639. In terms of some nonprocedural guarantees, this test is simply not appropriate. In Furman v. Georgia, 408 U. S. 238 (1972), for example, this Court held that in the situation there presented imposition of the death penalty was not constitutionally permissible. Yet, while this holding does not affect the integrity of the factfinding process, we have not hesitated to apply it retrospectively without regard to whether the rule meets the Linkletter criteria. E. g., Walker v. Georgia, 408 U. S. 936.

The prohibition against being placed in double jeopardy is likewise not readily susceptible of analysis under the Linkletter line of cases. Although the Court has not handed down a fully reasoned opinion on the retro-activity of Benton v. Maryland, it has indicated that it is retroactive without examination of the Linkletter criteria. North Carolina v. Pearce, 395 U. S. 711 (1969); Ashe v. Swenson, 397 U. S. 436, 437 n. 1 (1970). These decisions do not directly control the question of whether Waller should be given retrospective effect but they bear upon its disposition.

The guarantee against double jeopardy is significantly different from procedural guarantees held in the Link-letter line of cases to have prospective effect only. While this guarantee, like the others, is a constitutional right of the criminal defendant, its practical result is to prevent a trial from taking place at all, rather than to prescribe procedural rules that govern the conduct of a trial. A number of the constitutional rules applied prospectively only under the Linkletter cases were found not to affect the basic fairness of the earlier trial, but to have been directed instead to collateral purposes such as the deterrence of unlawful police conduct, Mapp v. Ohio, supra. In Waller, however, the Court’s ruling was squarely directed to the prevention of the second trial’s taking place at all, even though it might have been conducted with a scrupulous regard for all of the constitutional procedural rights of the defendant.

We would not suggest that the distinction that we draw is an ironclad one that will invariably result in the easy classification of cases in one category or the other. The element of reliance embodied in the Link-letter analysis will not be wholly absent in the case of constitutional decisions not related to trial procedure, as indeed this case when contrasted with Furman illustrates.

In Furman v. Georgia, supra, our mandate was tailored so as to deny to the State only the authority to impose a punishment that we held unconstitutional, without the necessity of a redetermination of the factual question of whether the offense had in fact been committed. Thus, the prejudice to the State resulting from the necessity of an entirely new trial because of procedures newly found to be constitutionally defective, with the attendant difficulties of again assembling witnesses whose memories would of necessity be dimmer for the second trial than for the first, was not present. That which was constitutionally invalid could be isolated and excised without requiring the State to begin the entire factfinding process anew.

The application of Waller retrospectively may, on the other hand, result in a form of prejudice to the State because, in reliance upon the “dual sovereignty” analogy, the municipal prosecution may have occurred first and the sentence already have been served prior to the commencement of the state prosecution. If the offense involved was a serious one under state law, as it apparently was in this case, the defendant may have been unintentionally accorded a relatively painless form of immunity from the state prosecution. But the Court’s opinion in Waller makes clear that the analogy between state and municipal prosecutions, and federal and state prosecutions permitted in Bartkus v. Illinois, 359 U. S. 121 (1959), had never been sanctioned by this Court and was not analytically sound. Since the issue did not assume federal constitutional proportions until after Benton v. Maryland held the Double Jeopardy Clause applicable to the States, this Court had not earlier had occasion to squarely pass on the issue. But its decision in Waller cannot be said to have marked a departure from past decisions of this Court. Therefore, while Waller-type cases may involve a form of practical prejudice to the State over and above the refusal to permit the trial that the Constitution bars, the justifiability of the State’s reliance on lower court decisions supporting the dual sovereignty analogy was a good deal more dubious than the justification for reliance that has been given weight in our Linkletter line of cases. We intimate no view as to what weight should be accorded to reliance by the State that was justifiable under the Linkletter test in determining retroactivity of a non-procedural constitutional decision such as Waller.

We hold, therefore, that our decision in Waller v. Florida is to be accorded full retroactive effect. We refrain from an outright reversal of the judgment below, however, because statements of counsel at oral argument raised the issue of whether the state and municipal prosecutions were actually for the same offense. We therefore vacate the judgment of the Court of Appeals and remand the case so that respondent may have an opportunity to present this issue there or in the District Court.

It is so ordered.

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

Although I otherwise join the opinion of the Court, I would reverse the judgment of the Court of Appeals outright. I adhere to my view that, regardless of the similarity of the offenses, the Double Jeopardy Glause of the Fifth Amendment, which is applicable to the States through the Fourteenth Amendment, Benton v. Maryland, 395 U. S. 784 (1969), requires the prosecution, except in most limited circumstances not present here, “to join at one trial all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction.” Ashe v. Swenson, 397 U. S. 436, 453-454 (1970) (Brennan, J., concurring); see Grubb v. Oklahoma, post, p. 1017 (1972) (Brennan, J., dissenting); Miller v. Oregon, 405 U. S. 1047 (1972) (Brennan, J., dissenting); Harris v. Washington, 404 U. S. 55, 57 (1971) (separate statement of Douglas, Brennan, and Marshall, JJ.). Under this “same transaction” test, all charges against petitioner should have been brought in a single prosecution.

      See Desist v. United States, 394 U. S. 244 (1969), which carefully examined all of the eases decided since Linkletter and more fully enunciated the guiding criteria of those cases.


author: Mr. Justice Brennan-

text:
    GOOSBY et al. v. OSSER et al.
    No. 71-6316.
    Argued December 6-7, 1972
    Decided January 17, 1973
    BRBnnan, J., delivered the opinion for a unanimous Court.

      Ann S. Torregrossa argued the cause for petitioners pro hac vice. With her on the briefs was Elliot B. Platt.

      Peter W. Brown, Deputy Attorney General, argued the cause for respondents Commonwealth of Pennsylvania et al. With him on the brief were J. Shane Creamer, Attorney General, and Thomas J. Oravetz and Edward J. Weintraub, Deputy Attorneys General. John Matti-oni argued the cause and filed a brief for municipal respondents.
    Briefs of amici curiae urging reversal were filed by Jack Greenberg and Stanley A. Bass for the NAACP Legal Defense and Educational Fund, Inc., et al., and by Samuel Rabinove, Michael von Moschzisker, Wilbur Bourne Ruthrauff, A. Harry Levitan, and Carolyn Temin for the American Jewish Committee et al.
   Mr. Justice Brennan-

delivered the opinion of the Court.

The question is whether 28 U. S. C. § 2281 required the convening of a three-judge court in the District Court for the Eastern District of Pennsylvania to hear this case. It is a class action brought by and on behalf of persons awaiting trial and confined in Philadelphia County prisons because either unable to afford bail or because charged with nonbailable offenses. The complaint alleges that provisions of the Pennsylvania Election Code, in violation of the Equal Protection and Due Process Clauses of the Fourteenth Amendment, absolutely deny petitioners' class the right to vote in that they neither permit members of the class to leave prison to register and vote, nor provide facilities for the purpose at the prisons, and in that they expressly prohibit persons “confined in penal institutions” from voting by absentee ballot. The complaint names as defendants two Commonwealth officials, the Attorney General and Secretary of State of Pennsylvania, and certain municipal officials of the County and City of Philadelphia: the City Commissioners of Philadelphia who constitute the Board of Elections and Registration Commission of the City and County of Philadelphia, the Voting Registration Supervisor for the City and County, and the Superintendent of Prisons for the County.

On oral argument before a single judge on petitioners’ motion for a temporary restraining order, the Commonwealth officials appeared by a Deputy Attorney General, who conceded that the challenged provisions of the Election Code, as applied to petitioners’ class, were unconstitutional under the Fourteenth Amendment. The municipal officials, on the other hand, vigorously defended the constitutionality of the provisions as so applied. The single judge deemed the contrary view of the municipal officials to be irrelevant, as he regarded the Commonwealth officials to be the “principal defendants.” See n. 3, infra. He therefore ruled that the concession on behalf of the Commonwealth officials meant there was no case or controversy before the court as required by Art. Ill of the Constitution, and dismissed the complaint. On petitioners’ appeal, the Court of Appeals for the Third Circuit affirmed. 452 F. 2d 39 (1971). We do not, however, read the per curiam opinion of the Court of Appeals as resting the affirmance on agreement with the single judge that the concession of the Commonwealth officials meant there was no case or controversy before the court. Rather, we read the per curiam opinion as either implying disagreement with the single judge on that question, or as at least assuming that a case or controversy existed, for the opinion states that, in the view of the Court of Appeals, petitioners’ constitutional claims were wholly insubstantial under McDonald v. Board of Election Comm’rs, 394 U. S. 802 (1969), in which circumstance, the Court of Appeals held, Bailey v. Patterson, 369 U. S. 31 (1962), was authority that 28 U. S. C. §2281 did not require the assembly of a three-judge court and that dismissal by the single judge was therefore proper, 452 F. 2d, at 40. A petition for rehearing en banc was denied, three judges dissenting. We granted certiorari, 408 U. S. 922 (1972). We reverse the judgment of the Court of Appeals and remand with direction to enter an appropriate order pursuant to 28 U. S. C. § 2281 for the convening of a three-judge court to hear this case.

I

The single judge clearly erred in holding that the concession of the Commonwealth officials foreclosed the existence of a case or controversy. All parties are in accord that Pennsylvania law did not oblige the municipal officials to defer to the concession of the Commonwealth officials, or otherwise give the Commonwealth officials a special status as “principal defendants.” Indeed, the brief filed in this Court by the Commonwealth officials forthrightly argues that “[t]he District Court made an egregious error. The Attorney General and the Secretary of the Commonwealth are not the only defendants in this case. The City Commissioners of Philadelphia, the Voting Registration Supervisor, the Registration Commission, and the Superintendent of Prisons for Philadelphia County are also parties. These parties have contested vigorously the issues raised by petitioners both in the District Court and on appeal. They have provided adversity of interest, and will sharply define the issues, to the extent they are not already clear.” Brief for Respondents Commonwealth of Pennsylvania et al. 4^5.

Thus, there is satisfied the requisite of Art. Ill that “[t]he constitutional question ... be presented in the context of a specific live grievance.” Golden v. Zwickler, 394 U. S. 103, 110 (1969). As between petitioners and the municipal officials, the District Court was “called upon to adjudge the legal rights of litigants in actual controversies,” Liverpool, N. Y. & P. S. S. Co. v. Commissioners of Emigration, 113 U. S. 33, 39 (1885), and “the interests of [petitioners’ class] require the use of . .. judicial authority for [petitioners’] protection against actual interference.” United Public Workers of America v. Mitchell, 330 U. S. 75, 90 (1947). Since the municipal officials persist in their asserted right to enforce the challenged provisions of the Election Code, there is a “real and substantial controversy” “touching the legal relations of parties having adverse legal interests,” Aetna Life Ins. Co. v. Haworth, 300 U. S. 227, 240-241 (1937), in which circumstance the concession of the Commonwealth officials could not have the effect of dissipating the existence of a case or controversy. Cf. In re Metropolitan Railway Receivership, 208 U. S. 90, 107-108 (1908).

II

The Court of Appeals also erred. We disagree with its holding that McDonald v. Board of Election Comm’rs, supra, rendered petitioners’ constitutional claims wholly insubstantial.

Title 28 U. S. C. § 2281 does not require the convening of a three-judge court when the constitutional attack upon the state statutes is insubstantial. “Constitutional insubstantiality” for this purpose has been equated with such concepts as “essentially fictitious,” Bailey v. Patterson, 369 U. S., at 33; “wholly insubstantial,” ibid.; “obviously frivolous,” Hannis Distilling Co. v. Baltimore, 216 U. S. 285, 288 (1910); and “obviously without merit,” Ex parte Poresky, 290 U. S. 30, 32 (1933). The limiting words “wholly” and “obviously” have cogent legal significance. In the context of the effect of prior decisions upon the substantiality of constitutional claims, those words import that claims are constitutionally insubstantial only if the prior decisions inescapably render the claims frivolous; previous decisions that merely render claims of doubtful or questionable merit do not render them insubstantial for the purposes of 28 U. S. C. § 2281. A claim is insubstantial only if “ 'its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy.’ ” Ex parte Poresky, supra, at 32, quoting from Hannis Distilling Co. v. Baltimore, supra, at 288; see also Levering & Garrigues Co. v. Morrin, 289 U. S. 103, 105-106 (1933); McGilvra v. Ross, 215 U. S. 70, 80 (1909). Under this test, it is clear that McDonald is not a prior decision of this Court that “foreclosed the subject” of petitioners’ constitutional attack upon the Pennsylvania statutory scheme; it is demonstrably not a decision that “leave [s] no room for the inference that the question sought to be raised [by petitioners] can be the subject of controversy.”

In McDonald, appellants were a class of pretrial detainees in Cook County, Illinois, already registered to vote, who sought to vote only by absentee ballot. Their timely applications to the Cook County Board of Election Commissioners for absentee ballots were denied on the ground that pretrial detainees were not included among those persons specifically permitted by the Illinois Election Code to vote by absentee ballot. Appellants brought suit alleging that in that circumstance the Illinois Election Code denied them equal protection of the laws, particularly as the Code provided absentee ballots for those “medically incapacitated,” and for pretrial detainees who were residents of Cook County but incarcerated outside of Cook County.

The threshold question presented in McDonald was “how stringent a standard to use in evaluating the classifications made [by the Illinois absentee ballot provisions] and whether the distinctions must be justified by a compelling state interest . . . .” 394 U. S., at 806. In resolving this question, the Court analyzed the Illinois scheme in light of our decisions that required the application of the more stringent compelling state interest test when either a fundamental right, such as the right to vote, was allegedly infringed, Reynolds v. Sims, 377 U. S. 533 (1964); Harper v. Virginia Board of Elec tions, 383 U. S. 663 (1966); Carrington v. Rash, 380 U. S. 89 (1965), or when the statutory classifications were drawn on the basis of suspect criteria, such as wealth or race, Harper v. Virginia Board of Elections, supra; McLaughlin v. Florida, 379 U. S. 184, 192 (1964); Douglas v. California, 372 U. S. 353 (1963). 394 U. S., at 807. Our analysis led us to conclude that neither situation was presented by the Illinois absentee voting provisions. We held that “the distinctions made by Illinois' absentee provisions are not drawn on the basis of wealth or race,” ibid., and, with respect to the alleged infringement of appellants’ right to vote, that:

“[TJhere is nothing in the record to indicate that the Illinois statutory scheme has an impact on appellants’ ability to exercise the fundamental right to vote. It is thus not the right to vote that is at stake here but a claimed right to receive absentee ballots. Despite appellants’ claim to the contrary, the absentee statutes, which are designed to make voting more available to some groups who cannot easily get to the polls, do not themselves deny appellants the exercise of the franchise; nor, indeed, does Illinois’ Election Code so operate as a whole, for the State’s statutes specifically disenfranchise only those who have been convicted and sentenced, and not those similarly situated to appellants. [Citation omitted.] Faced as we are with a constitutional question, we cannot lightly assume, with nothing in the record to support such an assumption, that Illinois has in fact precluded appellants from voting.” Id., at 807-808. (Emphasis supplied.)

For all that appeared, Illinois might make the franchise available by other means :

“Appellants agree that the record is barren of any indication that the State might not, for instance, possibly furnish the jails with special polling booths or facilities on election day, or provide guarded transportation to the polls themselves for certain inmates, or entertain motions for temporary reductions in bail to allow some inmates to get to the polls on their own.” Id., at 808 n. 6.

Thus, “[s]ince there is nothing in the record to show that appellants are in fact absolutely prohibited from voting by the State . . id., at 808 n. 7, we concluded that the Illinois absentee ballot provisions were to be tested by the “more traditional standards for evaluating . . . equal protection claims,” id., at 808, and that under those standards the provisions could not be said to be arbitrary or unreasonable, particularly since “there is nothing to show that a judicially incapacitated, pretrial detainee is absolutely prohibited from exercising the franchise.” Id., at 809.

Petitioners’ constitutional challenges to the Pennsylvania scheme are in sharp contrast. Petitioners allege that, unlike the appellants in McDonald, the Pennsylvania statutory scheme absolutely prohibits them from voting, both because a specific provision affirmatively excludes “persons confined in a penal institution” from voting by absentee ballot, Pa. Stat. Ann., Tit. 25, § 2602 (w) (12) (Supp. 1972-1973), and because requests by members of petitioners’ class to register and to vote either by absentee ballot, or by personal or proxy appearance at polling places outside the prison, or at polling booths and registration facilities set up at the prisons, or generally by any means satisfactory to the election officials, had been denied. Thus, petitioners’ complaint alleges a situation that McDonald itself suggested might make a different case.

This is not to say, of course, that petitioners are as a matter of law entitled to the relief sought. We neither decide nor intimate any view upon the merits. It suffices that we hold that McDonald does not “foreclose the subject” of petitioners’ challenge to the Pennsylvania statutory scheme. The significant differences between that scheme and the Illinois scheme leave ample “room for the inference that the questions sought to be raised [by petitioners] can be the subject of controversy.” See supra, at 518, 519.

We therefore conclude that this case must be “heard and determined by a district court of three judges . . . .” 28 U. S. C. § 2281. The judgment of the Court of Appeals is therefore reversed and the case is remanded with direction to enter an appropriate order pursuant to that section for the convening of a three-judge court to hear and determine the merits of petitioners’ constitutional claims, see Kennedy v. Mendoza-Martinez, 372 U. S. 144, 153 (1963); Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U. S. 713 (1962); Borden Co. v. Liddy, 309 F. 2d 871, 876 (CA8 1962), cert. denied, 372 U. S. 953 (1963); Riss Co. v. Hoch, 99 F. 2d 553, 555 (CA10 1938); see also C. Wright, The Law of Federal Courts 190-191 (2d ed. 1970), or, if deemed appropriate, to abstain from such determination pending state court proceedings. See Lake Carriers’ Assn. v. MacMullan, 406 U. S. 498, 509-513 (1972).

It is so ordered.

       Title 28 U. S. C. § 2281 provides:
      “An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title.”

       Pa. Stat. Ann., Tit. 25, § 623-1 et seq. (1963 and Supp. 1972-1973); § 2602 (w) (12) (Supp. 1972-1973). Several elections, including the 1972 presidential election, have been held since this action was filed, but this does not render the case moot. See Moore v. Ogilvie, 394 U. S. 814 (1969). Similarly, the case is not rendered moot because some of the named petitioners have lost their status as class members by being released on bail, discharged, acquitted, or convicted. See McDonald v. Board of Election Comm’rs, 394 U. S. 802, 803 n. 1 (1969); Lee v. Washington, 390 U. S. 333 (1968), aff’g 263 F. Supp. 327 (MD Ala. 1966).

       The unpublished transcript of the oral opinion of the single judge reads in pertinent part as follows:
      “It has been stated that no Federal Court has jurisdiction to pronounce any statute, either of the State or of the United States void because irreconcilable with the Constitution except as it is called upon to adjudge the legal rights of litigants in actual controversies.
      “Now, in the instant case the Attorney General, as the chief legal officer of the Commonwealth, obviously represents, as Counsel have stated in their arguments this morning, the ‘principal’ Defendant or Defendants. The position taken by the remaining Defendants seems to be the result of the fact that the Attorney General has not, in accordance with his past practice, rendered an opinion together with suggested procedures, plans, etc., covering the subject matter of the opinion.
      “It is, therefore, our conclusion that in the posture of this case as it presently exists . . . there is no controversy in the sense in which that term is used by the Courts, and we find ourselves compelled to, therefore, dismiss the complaint. It is so ordered.” App. 85.

       Thus, this is not a situation in which a State confesses error and represents that the error will be corrected without need for further court action. See, e. g., Titmus v. Tinsley, 370 U. S. 964 (1962); McKissick v. Durham City Board of Education, 176 F. Supp. 3 (MDNC 1959); Jeffers v. Whitley, 197 F. Supp. 84 (MDNC 1961); Kelley v. Board of Education, 139 F. Supp. 578 (MD Tenn. 1956).

       We also read respondents’ brief as rejecting the view of the single judge that the municipal officials must defer to the commonwealth officials’ concession pending the issuance of a formal opinion of the Attorney General on the question of the constitutionality of the statutes.
      Insofar as the single judge may have rested his finding of the absence of a case or controversy on the alleged difficulty of formulating a remedy, he also erred. See Louisiana v. United States, 380 U. S. 145, 154 (1965); Brown v. Board of Education, 349 U. S. 294, 300 (1955).

       The Illinois absentee voting statute, Ill. Rev. Stat., c. 46, §§ 19-1 to 19-3 (1971), made absentee voting available to four classes of persons: (1) those who were absent from their county of residence for any reason; (2) those who were “physically incapacitated”; (3) those whose observance of a religious holiday prevented attendance at the polls; and (4) those who served as poll watchers in precincts other than their own on election day. See McDonald v. Board of Election Comm’rs, supra, at 803-804.

       “The existence of a substantial question of constitutionality must be determined by the allegations of the bill of complaint.” Ex parte Poresky, 290 U. S. 30, 32 (1933). In the present procedural posture of petitioners’ case, the allegations of their complaint must be deemed to be true. Boddie v. Connecticut, 401 U. S. 371, 373 (1971); Gomillion v. Lightfoot, 364 U. S. 339, 341 (1960). In addition to the allegations that they are absolutely prohibited from voting, petitioners allege that the Pennsylvania statute creates classifications based on wealth and race, that the denial of the right to vote is an impermissible consequence of pretrial detention in violation of due process of law, and that the Pennsylvania statute’s specific exclusion of pretrial detainees from the definition of a “qualified absentee voter” is unconstitutional even under the less stringent rational relationship test applied in McDonald.

       The -per curiam opinion of the Court of Appeals states: “We have carefully considered each of the contentions raised by the [petitioners] and find them to be without merit.” 452 F. 2d 39, 41. In view of the result we reach, the Court of Appeals was without jurisdiction to render this holding insofar as it implies an adjudication of the merits of petitioners’ constitutional contentions. Stratton v. St. Louis Southwestern R. Co., 282 U. S. 10 (1930). C. Wright, The Law of Federal Courts 193 (2d ed. 1970).