author: Mr. Justice Douglas

text:
    RETAIL CLERKS INTERNATIONAL ASSOCIATION, LOCAL 1625, AFL-CIO, et al. v. SCHERMERHORN et al.
    No. 13.
    Argued April 18, 1963.
    Decided in part and set for reargument on one issue June 3, 1963.
    —Reargued October 16-17, 1963.
    —Decided December 2, 1963.

      S. G. Lippman reargued the cause for petitioners. With him on the briefs on the reargument were Tim L. Bornstein and George Kaufmann, and on the original argument Mr. Bornstein, Claude Pepper and Russell Specter.

      Bernard B. Weksler reargued the cause for respondents. With him on the brief was John L. Kilcullen.

      Solicitor General Cox, by invitation of the Court, 373 U. S., at 757, argued the cause for the United States on the reargument, as amicus curiae, urging affirmance. With him on the brief were Arnold Ordman, Dominick L. Manoli and Norton J. Come.

      J. Albert Woll, Robert C. Mayer, Theodore J. St. Antoine and Thomas E. Harris filed a brief on the reargument for the American Federation of Labor and Congress of Industrial Organizations, as amicus curiae, urging reversal. With them on the brief on the original argument were Joseph L. Rauh, Jr., John Silard and Harold A. Crane field for the United Automobile, Aerospace and Agricultural Implement Workers of America.

      Richard W. Ervin, Attorney General of Florida, filed a brief on the reargument for the State of Florida, as amicus curiae, urging affirmance, joined and supported by the Attorneys General for their respective States as follows: Robert Pickrell of Arizona, Evan L. Hultman of Iowa, William M. Ferguson of Kansas, Joe T. Patterson of Mississippi, Clarence A. H. Meyer of Nebraska, T. Wade Bruton of North Carolina, Daniel R. McLeod of South Carolina, Frank Farrar of South Dakota, George F. Mc-Canless of Tennessee, Waggoner Carr of Texas and A. Pratt Kesler of Utah, each of whom also joined and supported his brief on the original argument, together with Eugene Cook of Georgia, Harvey Dickerson of Nevada, Helgi Johanneson of North Dakota, Robert Y. Button of Virginia, George Thompson of Wisconsin, John F. Raper of Wyoming, and John L. Kilcullen. Richmond M. Flowers, Attorney General of Alabama, was also on the brief on the original argument. D. Gar-diner Tyler, Assistant Attorney General of Virginia, and Frederick T. Gray, Special Assistant Attorney General, were with Mr. Button on a separate amicus curiae brief for the Commonwealth of Virginia on the original argument.

      William B. Barton and Harry J. Lambeth filed a brief on the original argument for the Chamber of Commerce of the United States, as amicus curiae, urging affirmance.
   Mr. Justice Douglas

delivered the opinion of the Court.

The sole question in the case is the one we set down for reargument in 373 U. S. 746, 747-748: “whether the Florida courts, rather than solely the National Labor Relations Board, are tribunals with jurisdiction to enforce the State's prohibition” against an “agency shop” clause in. a collective bargaining agreement.

In this case the union and the employer negotiated a collective bargaining agreement that contained an “agency shop” clause providing that the employees covered by the contract who chose not to join the union were required “to pay as a condition of employment, an initial service fee and monthly service fees” to the union. Nonunion employees brought suit in a Florida court to have the agency shop clause declared illegal, for an injunction against enforcement of it, and for an accounting. The Florida Supreme Court held that this negotiated and executed union-security agreement violates the “right to work” provision of the Florida Constitution and that the state courts have jurisdiction to afford a remedy. 141 So. 2d 269.

We agree with that view.

While § 8 (a) (3) of the Taft-Hartley Act provides that it is not an unfair labor practice for an employer and a union to require membership in a union as a condition of employment provided the specified conditions are met, § 14 (b) (61 Stat. 151, 29 U. S. C. § 164 (b)) provides:

“Nothing in this Act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.”

We start from the premise that, while Congress could preempt as much or as little of this interstate field as it chose, it would be odd to construe § 14 (b) as permitting a State to prohibit the agency clause but barring it from implementing its own law with sanctions of the kind involved here.

Section 14 (b) came into the law in 1947, some years after the Wagner Act. The latter did not bar as a matter of federal law an agency-shop agreement. Section 8 (a)(3) of the Taft-Hartley Act also allowed it, saying that “nothing in this Act, or in any other statute of the United States, shall preclude” one.

By the time § 14 (b) was written into the Act, twelve States had statutes or constitutional provisions outlawing or restricting the closed shop and related devices—a state power which we sustained in Lincoln Union v. Northwestern Co., 335 U. S. 525. These laws—about which Congress seems to have been well informed during the 1947 debates — had a wide variety of sanctions, including injunctions, damage suits, and criminal penalties. In 1947 Congress did not outlaw union-security agreements per se; but it did add new conditions, which, as presently provided in § 8 (a) (3), require that there be a 30-day waiting period before any employee is forced into a union, that the union in question is the appropriate representative of the employees, and that an employer not discriminate against an employee if he has reasonable grounds for believing that membership in the union was not available to the employee on a nondiscriminatory basis or that the employee’s membership was denied or terminated for reasons other than failure to meet union-shop requirements as to dues and fees. In other words, Congress undertook pervasive regulation of union-security agreements, raising in the minds of many whether it thereby preempted the field under the decision in Hill v. Florida, 325 U. S. 538, and put such agreements beyond state control. That is one reason why a section, which later became §14. (b), appeared in the House bill — a provision described in the House Report as making clear and unambiguous the purpose of Congress not to preempt the field. That purpose was restated by the House Conference Report in explaining § 14 (b). Senator Taft in the Senate debates stated that § 14 (b) was to continue the policy of the Wagner Act and avoid federal interference with state laws in this field. As to the Wagner Act he stated, “But that did not in any way prohibit the enjor cement of State laws which already prohibited closed shops.” (Italics added.) He went on to say, “That has been the law ever since that time. It was the law of the Senate bill; and in putting in this express provision from the House bill, [§ 14 (b)] we in no way change the bill as passed by the Senate of the United States.”

In light of the wording of § 14 (b) and this legislative history, we conclude that Congress in 1947 did not deprive the States of- any and all power to enforce their laws restricting the execution and enforcement of union-security agreements. Since it is plain that Congress left the States free to legislate in that field, we can only assume that it intended to leave unaffected the power to enforce those laws. Otherwise, the reservation which Senator Taft felt to be so critical would become empty and largely meaningless.

As already noted, under § 8 (a) (3) a union-security agreement is permissible, for example, if the union represents the employees as provided in § 9 (a) (subject to rescission of the authority to make the agreement as provided in §8 (a)(3)). Those are federal standards entrusted by Congress to the Labor Board. Yet even if the union-security agreement clears all federal hurdles, the States by reason of § 14 (b) have the final say and may outlaw it. There is thus conflict between state and federal law; but it is a conflict sanctioned by Congress with directions to give the right of way to state laws barring the execution and enforcement of union-security agreements. It is argued that if there is. a violation of a state union-security law authorized by § 14 (b), it is a federal unfair labor practice and that the federal remedy is the exclusive one. It is urged that that course is necessary if uniformity is to be achieved. But § 14 (b) gives the States power to outlaw even a union-security agreement that passes muster by federal standards. Where Congress gives state policy that degree of overriding authority, we are reluctant to conclude that it is nonetheless enforceable by the federal agency in Washington.

This result on its face may seem to be at war with San Diego Council v. Garmon, 359 U. S. 236, decided in 1959, and holding that where action is “arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board.” Id., at 245. In Garmon a,_state court was held precluded by the Taft-Hartley Act from awarding damages under state law for economic injuries resulting from peaceful picketing of a plant by labor unions that had not been selected by a majority of the employees as their bargaining agents.

Garmon, however, does not state a constitutional principle; it merely rationalizes the problems of coexistence between federal and state regulatory schemes in the field of labor relations; and it did not present the problems posed by § 14 (b), viz., whether the Congress had precluded state enforcement of select state laws adopted pursuant to its authority. The purpose of Congress is the ultimate touchstone. Congress under the Commerce Clause may displace state power (Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 234-236; San Diego Council v. Garmon, supra) or it may even by silence indicate a purpose to let state regulation be imposed on the federal regime. See Florida Avocado Growers v. Paul, 373 U. S. 132, 141-143.

The Court in Algoma Plywood Co. v. Wisconsin Board, 336 U. S. 301, 314, stated that “§ 14 (b) was included to forestall the inference that federal policy was to be exclusive” on this matter of union-security agreements. In that case a state agency issued a cease-and-desist order against an employer from giving effect to a maintenance of membership agreement and ordered an employee reinstated and made whole for any loss of pay suffered. It was urged that since § 10 (a) of the Wagner Act gives the Federal Board “exclusive” power to prevent “any unfair labor practice,” state power in the federal commerce field was displaced. Id., at 305. State power, however, was held to exist alongside of federal power because of the special legislative history of the union-security provisions of the Act. The dissent did not deny that; rather it proceeded on the ground that, since the dispute arose prior to the 1947 Act, the case was to be judged by the pre-1947 construction of § 8 (a)(3), as to which the majority and minority of the Court were in disagreement.

It also was argued in Algoma Plywood Co. that § 14 (b) displaced state law that “regulates” the union shop. The Court said:

“But if there could be any doubt that the language of the section means that the Act shall not be construed to authorize any 'application’ of a union-security contract, such as discharging an employee, which under the circumstances 'is prohibited’ by the State, the legislative history of the section would dispel it.” 336 U. S., at 314.

Congress, in other words, chose to abandon any search for uniformity in dealing with the problems of state laws barring the execution and application of agreements authorized by § 14 (b) and decided to suffer a medley of attitudes and philosophies on the subject.

As a result of § 14 (b), there will arise a wide variety of situations presenting problems of the accommodation of state and federal jurisdiction in the union-security field. As noted, Algoma Plywood Co. v. Wisconsin Board, supra, upheld the right of a State to reinstate with back pay an employee discharged in violation of a state union-security law. On the other hand, picketing in order to get an employer to execute an agreement to hire all-union labor in violation of a state union-security statute lies exclusively in the federal domain (Local Union 429 v. Farnsworth & Chambers Co., 353 U. S. 969, and Local No. 438 v. Curry, 371 U. S. 542), because state power, recognized by § 14 (b), begins only with actual negotiation and execution of the type of agreement described by § 14 (b). Absent such an agreement, conduct arguably an unfair labor practice would be a matter for the National Labor Relations Board under Carmon.

We held in Plumbers’ Union v. Borden, 373 U. S. 690, and in Iron Workers v. Perko, 373 U. S. 701, that Garmon preempted the field where employees were suing unions for damages arising out of practices that arguably were unfair labor practices subject to regulation by the National Labor Relations Board. Those cases, however, did not present for decision any problem under § 14 (b), though the question was tendered in the Borden case but not passed on either by the state tribunal or by us. 373 U. S., at 692, n. 2.

The relief prayed for below is within the ambit of Algoma Plywood Co. v. Wisconsin Board, supra, and the regulatory scheme that Congress designed when it adopted § 14 (b).

Affirmed.

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

       Section 8 (a) (3) reads as follows:
      “It shall be an unfair labor practice for an employer ... by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: Provided, That nothing in this Act, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in section 8 (a) of this Act as an unfair labor practice) to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later, (i) if such labor organization is the representative of the employees as provided in section 9 (a), in the appropriate collective-bargaining unit covered by such agreement when made; and (ii) unless following an election held as provided in section 9 (e) within one year preceding the effective date of such agreement, the Board shall have certified that at least a majority of the employees eligible to vote in such election have voted to rescind the authority of such labor organization to make such an agreement: Provided further, That no employer shall justify any discrimination against an employee for nonmembership in a labor organization (A) if he has reasonable grounds for believing that such membership was not available to the employee on the same terms and conditions generally applicable to other members, or (B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership.” 61 Stat. 140-141, as amended, 65 Stat. 601, 73 Stat. 525, 29 U. S. C. (Supp. IV) '§ 158 (a) (3).

       As stated in the Senate Report on the Wagner Act:
      "... the bill does nothing to facilitate closed-shop agreements or to make them legal in any State where they may be illegal; it does not interfere with the status quo on this debatable subject but leaves the way open to such agreements as might now legally be consummated . . . .” S. Rep. No. 573, 74th Cong., 1st Sess., pp. 11-12. Prior to enactment of the Wagner Act in 1935, the States had unquestioned power to regulate or prohibit the closed shop and other forms of union-security agreements. While § 8 (3) of the Wagner Act said “nothing in this Act, ... or in any other statute of the United States, shall preclude” such agreements, it left open the power of a State to “preclude” them.

       Note 1, supra.

       See State Laws Regulating Union-Security Contracts, 21 L. R. R. M. 66.

       H. R. Rep. No. 245, 80th Cong., 1st Sess., p. 34; S. Rep. No. 105, 80th Cong., 1st Sess., p. 6.

       Note 1, supra; H. R. Rep. No. 245, 80th Cong., 1st Sess., p. 9. As to the differences between agreements for “closed” shops, “union” shops, and related devices, see Lincoln Union v. Northwestern Co., supra, at 528, n. 2; American Federation of Labor v. American Sash Co., 335 U. S. 538, 550-553.

       Section 13 of H. It. 3020, 80th Cong., 1st Sess., 1 Leg. Hist, of the Labor Management Relations Act, 1947, 207-208.

       “Since by the Labor Act Congress preempts the field that the act covers insofar as commerce within the meaning of the act is concerned, and since when this report is written the courts have not finally ruled upon the effect upon employees of employers engaged in commerce of State laws dealing with compulsory unionism, the committee has provided expressly in section 13 that laws and constitutional provisions of any State that restrict the right of employers to require employees to become or remain members of labor organizations are valid, notwithstanding any provision of the National Labor Relations Act. In reporting the bill that became the National Labor Relations Act, the Senate committee to which the bill had been referred declared that the act would not invalidate any such State law or constitutional provision. The new section 13 is consistent with this view.” H. R. Rep. No. 245, 80th Cong., 1st Sess., p. 44.

      H. R. Rep. No. 510, 80th Cong., 1st Sess., p. 60:
      “Under the House bill there was included a new section 13 of the National Labor Relations Act to assure that nothing in the act was to be construed as authorizing any closed shop, union shop, maintenance of membership, or other form of compulsory unionism agreement in any State where the execution of such agreement would be contrary to State law. Many States have enacted laws or adopted constitutional provisions to make all forms of compulsory unionism in those States illegal. It was never the intention of the National Labor Relations Act ... to preempt the field in this regard so as to deprive the States of their powers to prevent compulsory unionism. Neither the so-called 'closed shop’ proviso in section 8 (3) of the existing act nor the union shop and maintenance of membership proviso in section 8 (a) (3) of the conference agreement could be said to authorize arrangements of this sort in States where such arrangements were contrary to the State policy. To make certain that there should be no question about this, section 13 was included in the House bill. The conference agreement, in section H (b), contains a provision having the same effect." (Italics added.)

       93 Cong. Rec. 6520, 2 Leg. Hist, of the Labor Management Relations Act, 1947, 1597.

        Ibid.


source: Caselaw Access Project

author: Mr. Justice Stewart Mr. Justice Black,

license: Public Domain

text:
    DURFEE et ux. v. DUKE.
    No. 37.
    Argued October 24, 1963.
    —Decided December 2, 1963.

      August Ross argued the cause for petitioners. With him on the briefs was Harold W. Kauffman.

      Robert A. Brown argued the cause and filed a brief for respondent.

      Clarence A. H. Meyer, Attorney General of Nebraska, filed a brief for the State of Nebraska, as amicus curiae, urging reversal.

      Thomas F. Eagleton, Attorney General of Missouri, and Joseph Nessenfeld and Howard L. McFadden, Assistant Attorneys General, filed a brief for the State of Missouri, as amicus curiae, urging affirmance.
   Mr. Justice Stewart

delivered the opinion of the Court.

The United States Constitution requires that “Full Faith and Credit shall be given in each State to the . . . judicial Proceedings of every other State.” The case before us presents questions arising under this constitutional provision and under the federal statute enacted to implement it.

In 1956 the petitioners brought an action against the respondent in a Nebraska court to quiet title to certain bottom land situated on the Missouri River. The main channel of that river forms the boundary between the States of Nebraska and Missouri. The Nebraska court had jurisdiction over the subject matter of the controversy only if the land in question was in Nebraska. Whether the land was Nebraska land depended entirely upon a factual question — whether a shift in the river’s course had been caused by avulsion or accretion. The respondent appeared in the Nebraska court and through counsel fully litigated the issues, explicitly contesting the court’s jurisdiction over the subject matter of the controversy. After a hearing the court found the issues in favor of the petitioners and ordered that title to the land be quieted in them. The respondent appealed, and the Supreme Court of Nebraska affirmed the judgment after a trial de novo on the record made in the lower court. The State Supreme Court specifically found that the rule of avulsion was applicable, that the land in question was in Nebraska, that the Nebraska courts therefore had jurisdiction of the subject matter of the litigation, and that title to the land was in the petitioners. Durfee v. Keiffer, 168 Neb. 272, 95 N. W. 2d 618. The respondent did not petition this Court for a writ of certiorari to review that judgment.

Two months later the respondent filed- a suit against the petitioners in a Missouri court to quiet title to the same land. Her complaint alleged that the land was in Missouri. The suit was removed to a Federal District Court by reason of diversity of citizenship. The District Court after hearing evidence expressed the view that the land was in Missouri, but held that all the issues had been adjudicated and determined in the Nebraska litigation, and that the judgment of the Nebraska Supreme Court was res judicata and "is now binding upon this court.” The Court of Appeals reversed, holding that the District Court was not required to give full faith and credit to the Nebraska judgment, and that normal res judicata principles were not applicable because the controversy involved land and a court in Missouri was therefore free to retry the question of the Nebraska court’s jurisdiction over the subject matter. 308 F. 2d 209. We granted certiorari to consider a question important to the administration of justice in our federal system. 371 U. S. 946. For the reasons that follow, we reverse the judgment before us.

The constitutional command of full faith and credit, as implemented by Congress, requires that “judicial proceedings . . . shall have the same full faith and credit in every court within the United States ... as they have by law or usage in the courts of such State . . . from which they are taken.” Full faith and credit thus generally requires every State to give to a judgment at least the res judicata effect which the judgment would be accorded in the State which rendered it. “By the Constitutional provision for full faith and credit, the local doctrines of res judicata, speaking generally, become a part of national jurisprudence, and therefore federal questions cognizable here.” Riley v. New York Trust Co., 315 U. S. 343, 349.

It is not questioned that the Nebraska courts would give full res judicata effect to the Nebraska judgment quieting title in the petitioners. It is the respondent’s position, however, that whatever effect the Nebraska courts might give to the Nebraska judgment, the federal court in Missouri was free independently to determine whether the Nebraska court in fact had jurisdiction over the subject matter, i. e., whether the land in question was actually in Nebraska.

In support of this position the respondent relies upon the many decisions of this Court which have held that a judgment of a court in one State is conclusive upon the merits in a court in another State only if the court in the first State had power to pass on the merits — had jurisdiction, that is, to render the judgment. As Mr. Justice Bradley stated the doctrine in the leading case of Thompson v. Whitman, 18 Wall. 457, “we think it clear that the jurisdiction of the court by which a judgment is rendered in any State may be questioned in a collateral proceeding in another State, notwithstanding the provision of the fourth article of the Constitution and the law of 1790, and notwithstanding the averments contained in the record of the judgment itself.” 18 Wall., at 469. The principle has been restated and applied in a variety of contexts.

However, while it is established that a court in one State, when asked to give effect to the judgment of a court in another State, may constitutionally inquire into the foreign court’s jurisdiction to render that judgment, the modern decisions of this Court have carefully delineated the permissible scope of such an inquiry. From these decisions there emerges the general rule that a judgment is entitled to full faith and credit — even as to questions of jurisdiction — when the second court’s inquiry discloses that those questions have been fully and fairly litigated and finally decided in the court which rendered the original judgment.

With respect to questions of jurisdiction over the person, this principle was unambiguously established in Baldwin v. Iowa State Traveling Men’s Assn., 283 U. S. 522. There it was held that a federal court in Iowa must give binding effect to .the judgment of a federal court in Missouri despite the claim that the original court did not have jurisdiction over the defendant’s person, once it was shown to the court in Iowa that that question had been fully litigated in the Missouri forum. “Public policy,” said the Court, “dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest, and that matters once tried shall be considered forever settled as between the parties. We see no reason why this doctrine should not apply in every case where one voluntarily appears, presents his case and is fully heard, and why he should not, in the absence of fraud, be thereafter concluded by the judgment of the tribunal to which he has submitted his cause.” 283 TJ. S., at 525-526.

Following the Baldwin case, this Court soon made clear in a series of decisions that the general rule is no different when the claim is made that the original forum did not have jurisdiction over the subject matter. Davis v. Davis, 305 U. S. 32; Stoll v. Gottlieb, 305 U. S. 165; Treinies v. Sunshine Mining Co., 308 U. S. 66; Sherrer v. Sherrer, 334 U. S. 343. In each of these cases the claim was made that a court, when asked to enforce the judgment of another forum, was free to retry the question of that forum’s jurisdiction over the subject matter. In each case this Court held that since the question of subject-matter jurisdiction had been fully litigated in the original forum, the issue could not be retried in a subsequent action between the parties.

In the Davis case it was held that the courts of the District of Columbia were required to give full faith and credit to a decree of absolute divorce rendered in Virginia, despite the claim that the Virginia court had lacked jurisdiction because the plaintiff in the Virginia proceedings had not been domiciled in that State. In the course of the opinion the Court stated:

“As to petitioner’s domicil for divorce and his standing to invoke jurisdiction of the Virginia court, its finding that he was a bona fide resident of that State for the required time is binding upon respondent in the courts of the District. She may not say that he was not entitled to sue for divorce in the state court, for she appeared there and by plea put in issue his allegation as to domicil, introduced evidence to show it false, took exceptions to the commissioner’s report, and sought to have the court sustain them and uphold her plea. Plainly, the determination of the decree upon that point is effective for all purposes in this litigation.” 305 U. S., at 40.

This doctrine of jurisdictional finality was applied even more unequivocally in Treinies, supra, involving title to personal property, and in Sherrer, supra, involving, like Davis, recognition of a foreign divorce decree. In Trein-ies, the rule was succinctly stated: “One trial of an issue is enough. ‘The principles of res judicata apply to questions of jurisdiction as well as to other issues,’ as well to jurisdiction of the subject matter as of the parties.” 308 U. S., at 78.

The reasons for such a rule are apparent. In the words of the Court’s opinion in Stoll v. Gottlieb, supra, “We see no reason why a court, in the absence of an allegation of fraud in obtaining the judgment, should examine again the question whether the court making the earlier determination on an actual contest over jurisdiction between the parties, did have jurisdiction of the subject matter of the litigation. . . . Courts to determine the rights of parties are an integral part of our system of government. It is just as important that there should be a place to end as that there should be a place to begin litigation. After a party has his day in court, with opportunity to present his evidence and his view of the law, a collateral attack upon the decision as to jurisdiction there rendered merely retries the issue previously determined. There is no reason to expect that the second decision will be more satisfactory than the first.” 305 U. S., at 172.

To be sure, the general rule of finality of jurisdictional determinations is not without exceptions. Doctrines of federal pre-emption or sovereign immunity may in some contexts be controlling. Kalb v. Feuerstein, 308 U. S. 433; United States v. United States Fidelity Co., 309 U. S. 506. But no such overriding considerations are present here. While this Court has not before had occasion to consider the applicability of the rule of Davis, Stoll, Treinies, and Sherrer to a case involving real property, we can discern no reason why the rule should not be fully applicable.

It is argued that an exception to this rule of jurisdictional finality should be made with respect to cases involving real property because of this Court’s emphatic expressions of the doctrine that courts of one State are completely without jurisdiction directly to affect title to land in other States. This argument is wide of the mark. Courts of one State are equally without jurisdiction to dissolve the marriages of those domiciled in other States. But the location of land, like the domicile of a party to a divorce action, is a matter “to be resolved by judicial determination.” Sherrer v. Sherrer, 334 U. S., at 349. The question remains whether, once the matter has been fully litigated and judicially determined, it can be retried in another State in litigation between the same parties. Upon the reason and authority of the cases we have discussed, it is clear that the answer must be in the negative.

It is to be emphasized that all that was ultimately determined in the Nebraska litigation was title to the land in question as between the parties to the litigation there. Nothing there decided, and nothing that could be decided in litigation between the same parties or their privies in Missouri, could bind either Missouri or Nebraska with respect to any controversy they might have, now or in the future, as to the location of the boundary between them, or as to their respective sovereignty over the land in question. Fowler v. Lindsey, 3 Dall. 411; New York v. Connecticut, 4 Dall. 1; Land v. Dollar, 330 U. S. 731, 736-737. Either State may at any time protect its interest by initiating independent judicial proceedings here. Cf. Missouri v. Nebraska, 196 U. S. 23.

For the reasons stated, we hold in this case that the federal court in Missouri had the power and, upon proper averments, the duty to inquire into the jurisdiction of the Nebraska courts to render the decree quieting title to the land in the petitioners. We further hold that when that inquiry disclosed, as it' did, that the jurisdictional issues had been fully and fairly litigated by the parties and finally determined in the Nebraska courts, the federal court in Missouri was correct in ruling that further inquiry was precluded. Accordingly the judgment of the Court of Appeals is reversed, and that of the District Court is affirmed.

It is so ordered.

Mr. Justice Black,

concurring.

Petitioners and respondent dispute the ownership of a tract of land adjacent to the Missouri River, which is the boundary between Nebraska and Missouri. Resolution of this question turns on whether the land is in Nebraska or Missouri. Neither State, of course, has power to make a determination binding on the other as to which State the land is in. U. S. Const., Art. Ill, § 2; 28 U. S. C. § 1251 (a). However, in a private action brought by these Nebraska petitioners, the Nebraska Supreme Court has held that the disputed tract is'in Nebraska. In the present suit, brought by this Missouri respondent in Missouri, the United States Court of Appeals has refused to be bound by the Nebraska court’s judgment. I concur in today’s reversal of the Court of Appeals’ judgment, but with the understanding that we are not deciding the question whether the respondent would continue to be bound by the Nebraska judgment should it later be authoritatively decided, either in an original proceeding between the States in this Court or by a compact between the two States under Art. I, § 10, that the disputed tract is in Missouri.

       “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” U. S. Const., Art. IV, § 1.

       “The Acts of the legislature of any State, Territory, or Possession of the United States, or copies thereof, shall be authenticated by affixing the seal of such State, Territory or Possession thereto.
      “The records and judicial proceedings of any court of any such State, Territory or Possession, or copies thereof, shall be proved or admitted in other courts within the United States and its Territories and Possessions by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form.
      “Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.” Act of June 25, 1948, c. 646, 62 Stat. 947, 28 U. S. C. § 1738.
      The progenitor of the present statute was enacted by the First Congress in 1790. 1 Stat. 122.
      “The Act extended the rule of the Constitution to all courts, federal as well as state. Mills v. Duryee, 7 Cr. 481, 485.” Davis v. Davis, 305 U. S. 32, 40.

       Throughout this litigation there has been no dispute as to the controlling effect of this factual issue. See Nebraska v. Iowa, 143 U. S. 359, 370.

       This is, therefore, not a case in which a party, although afforded an opportunity to contest subject-matter jurisdiction, did not litigate the issue. Cf. Chicot County Drainage Dist. v. Baxter State Bank, 308 U. S. 371.

       See note 2, supra.

       The Nebraska Supreme Court has clearly postulated the relevant law of the State: “This court adheres to the rule that if a court is one competent to decide whether or not the facts in any given pro-eeeding confer jurisdiction, decides that it has jurisdiction, then its judgments entered within the scope of the subject matter over which its authority extends in proceedings following the lawful allegation of circumstances requiring the exercise of its jurisdiction, are not subject to collateral attack but conclusive against all the world unless reversed' on appeal or avoided for error or fraud.in a direct proceeding. Brandeen v. Lau, 113 Neb. 34, 201 N. W. 665; County of Douglas v. Feenan, 146 Neb. 156, 18 N. W. 2d 740, 159 A. L. R. 569.” Gergen v. Western Union Life Ins. Co., 149 Neb. 203, 210; 30 N. W. 2d 558, 562.

       See, e. g., D’Arcy v. Ketchum, 11 How. 165; Knowles v. Gaslight & Coke Co., 19 Wall. 58; Hall v. Lanning, 91 U. S. 160; Cole v. Cunningham, 133 U. S. 107; Grover & Baker Machine Co. v. Radcliffe, 137 U. S. 287; Thormann v. Frame, 176 U. S. 350; Bell v. Bell, 181 U. S. 175; Andrews v. Andrews, 188 U. S. 14; National

        Exchange Bank v. Wiley, 195 U. S. 257; Old Wayne Life Assn. v. McDonough, 204 U. S. 8; Chicago Life Ins. Co. v. Cherry, 244 U. S. 25; Vallely v. Northern Fire & Marine Ins. Co., 254 U. S. 348; Grubb v. Public Utilities Comm’n, 281 U. S. 470.

       It is not disputed in the present case that the Nebraska courts had jurisdiction over the respondent’s person. She entered a general appearance in the trial court, and initiated the appeal to the Nebraska Supreme Court.

       This decision was adhered to the following year in American Surety Co. v. Baldwin, 287 U. S. 156. In his opinion for a unanimous Court in that case, Mr. Justice Brandéis said: “The principles of res judicata apply to questions of jurisdiction as well as to other issues.” 287 U. S., at 166.

       The question in Stoll was what effect the courts of Illinois must give to the judgment of a federal court sitting in that State. • The case, therefore, did not directly involve the Full Faith and Credit Clause of the Constitution, but, like the present case, it involved the federal statute enacted to implement the constitutional provision. 305 U. S., at 170, n. 5. See note 2, supra.

       See also Sunshine Coal Co. v. Adkins, 310 U. S. 381, 403; Jackson v. Irving Trust Co., 311 U. S. 494.

       It is to be noted, however, that in neither of these eases had the jurisdictional issues actually been litigated in the first forum.
      The Restatement of Conflict of Laws recognizes the possibility of such exceptions:
      “Where a court has jurisdiction over the parties and determines that it has jurisdiction over the subject matter, the parties cannot collaterally attack the judgment on the ground that the court did not have jurisdiction over the subject matter, unless the policy underlying the doctrine of res judicata is outweighed bji- the policy against permitting the court to act beyond its jurisdiction. Among the factors appropriate to be considered in determining that collateral attack should be permitted are that
      “(a) the lack of jurisdiction over the subject matter was clear;
      “(b) the determination as to jurisdiction depended upon a question of law rather than of fact;
      “(c) the court was one of limited and not of general jurisdiction;
      “(d) the question of jurisdiction was not actually litigated;
      “ (e) the policy against the court’s acting beyond its jurisdiction is strong.” Restatement, Conflict of Laws, §451(2) (Supp. 1948). See Restatement, Judgments, § 10 (1942).

       In two previous cases the Court has expressly left open the question of the applicability of the rule of jurisdictional finality to cases involving real property. See Stoll v. Gottlieb, 305 U. S., at 176; United States v. United States Fidelity Co., 309 U. S., at 514.

       See Fall v. Eastin, 215 U. S. 1; Carpenter v. Strange, 141 U. S. 87, 105-106; Olmsted v. Olmsted, 216 U. S. 386.

       The alternative of a negotiated settlement of any dispute between the States over the location of the boundary would also always be available. See U. S. Const., Art. I, § 10.


author: Mr. Justice Goldberg

text:
    UNITED STATES v. STAPF et al., EXECUTORS AND TRUSTEES.
    No. 54.
    Argued October 23-24, 1963.
    —Decided December 2, 1963.

      Wayne G. Barnett argued the cause for the United States. With him on the brief were Solicitor General Cox, Assistant Attorney General Oberdorfer and Robert N. Anderson.

      W. M. Sutton argued the cause for respondents. With him on the brief was H. A. Berry.

   Mr. Justice Goldberg

delivered the opinion of the Court.

Respondents brought this suit against the Government in the District Court for the Northern District of Texas for a refund of estate taxes paid pursuant to an asserted deficiency. The Court of Appeals for the Fifth Circuit held that respondents were entitled to certain marital deductions under § 812 (e) of the Internal Revenue Code of 1939 and also to deductions for other payments as “claims against the estate” and “administration expenses” under § 812 (b) (3) and (2) of the 1939 Code. 309 F. 2d 592. We granted certiorari to consider questions of statutory interpretation important to the administration of the federal estate tax laws. 372 U. S. 928.

Lowell H. Stapf died testate on July 29,1953, a resident and domiciliary of Texas, a community property jurisdiction. At the time of his death he owned, in addition to his separate estate, a substantial amount of property in community with his wife. His will required that his widow elect either to retain her one-half interest in the community or to take under the will and allow its terms to govern the disposition of her community interest. If Mrs. Stapf were to elect to take under the will, she would be given, after specific bequests to others, one-third of the community property and one-third of her husband’s separate estate. By accepting this bequest she would allow her one-half interest in the community to pass, in accordance with the will, into a trust for the benefit of the children. It was further provided that if she chose to take under the will the executors were to pay “all and not merely one-half” of the community debts and administration expenses.

The relevant facts and computations are not in dispute. The decedent’s separate property was valued at $65,100 and the community property at $258,105. The only debts were community debts totalling $32,368. The administration expenses, including attorneys’ fees, were $4,073. If Mrs. Stapf had not elected to take under the will, she would have retained her fully vested one-half interest in the community property ($129,052) which would have been charged with one-half of the community debts ($16,184) and 35% of the administration expenses ($1,426). Thus, as the parties agree, she would have received a net of $111,443.

In fact Mrs. Stapf elected to take under the will. She received, after specific bequests to others, one-third of the combined separate and community property, a devise valued at $106,268, which was $5,175 less than she would have received had she retained her community property and refused to take under the will.

In computing the net taxable estate, the executors claimed a marital deduction under §812 (e)(1) of the Internal Revenue Code of 1939 for the full value of the one-third of decedent’s separate estate ($22,367) which passed to his wife under the will. The executors also claimed a deduction for the entire $32,368 of community debts as “claims against the estate” under § 812 (b)(3) and for the entire $4,073 of expenses as “administration expenses” under §812 (b)(2). The Commissioner of Internal Revenue disallowed the marital deduction and the deductions for claims and administration insofar as these represented debts (50%) and expenses (35%) chargeable to the wife’s one-half of the community. Respondents then instituted this suit for a tax refund. The District Court allowed the full marital deduction but disallowed the disputed claims and expenses. 189 F. Supp. 830. On cross-appeals the Court of Appeals, with one judge dissenting on all issues, held that each of the claimed deductions was allowable in full. 309 F. 2d 592. For reasons stated below, we hold that the Commissioner was correct and that none of the disputed deductions is allowable.

I. The Marital Deduction.

By electing to take under the will, Mrs. Stapf, in effect, agreed to accept the property devised to her and, in turn, to surrender property of greater value to the trust for the benefit of the children. This raises the question of whether a decedent’s estate is allowed a marital deduction under § 812 (e)(1) (E)(ii) of the 1939 Code where the bequest to the surviving spouse is on the condition that she convey property of equivalent or greater value to her children. The Government contends that, for purposes of a marital deduction, “the value of the interest passing to the wife is the value of the property given her less the value of the property she is required to give another as a condition to receiving it.” On this view, since the widow had no net benefit from the exercise of her election, the estate would be entitled to no marital deduction. Respondents reject this net benefit approach and argue that the plain meaning of the statute makes detriment to the surviving spouse immaterial.

Section 812 (e)(1)(A) provides that “in general” the marital deduction is for “the value of any interest in property which passes . . . from the decedent to his surviving spouse.” Subparagraph (E) then deals specifically with the question of valuation:

“(E) Valuation Of Interest Passing To Surviving Spouse. — In determining for the purposes of sub-paragraph (A) the value Of any interest in property passing to the surviving spouse for which a deduction is allowed by this subsection—
“(ii) where such interest or property is incumbered in any manner, or where the surviving spouse incurs any obligation imposed by the decedent with respect to the passing of such interest, such incum-brance or obligation shall be taken into account in the same manner as if the amount of a gift to such spouse of such interest were being determined.”

The disputed deduction turns upon the interpretation of (1) the introductory phrase “any obligation imposed by the decedent with respect to the passing of such interest,” and (2) the concluding provision that “such . . . obligation shall be taken into account in the same manner as if the amount of a gift to such spouse of such interest were being determined.”

The Court of Appeals, in allowing the claimed marital deduction, reasoned that since the valuation is to be “as if” a gift were being taxed, the legal analysis should be the same as if a husband had made an inter vivos gift to his wife on the condition that she give something to the children. In such a case, it was stated, the husband is taxable in the full amount for his gift. The detriment incurred by the wife would not ordinarily reduce the amount of the gift taxable to the husband, the original donor. The court concluded:

“Within gift tax confines the community property of the widow passing under the will of the husband to others may not be ‘netted’ against the devise to the widow, and thus testator, were the transfer inter vivos, would be liable for gift taxes on the full value of the devise.” 309 F. 2d 592, 598.

This conclusion, based on the alleged plain meaning of the final gift-amount clause of § 812 (e)(1)(E) (ii), is not supported by a reading of the entire statutory provision. First, § 812 (e) allows a marital deduction only for the decedent’s gifts or bequests which pass “to his surviving spouse.” In the present case the effect of the devise was not to distribute wealth to the surviving spouse, but instead to transmit, through the widow, a gift to the couple’s children. The gift-to-the-surviving-spouse terminology reflects concern with the status of the actual recipient or donee of the gift. What the statute provides is a “marital deduction” — a deduction for gifts to the surviving spouse — not a deduction for gifts to the children or a deduction for gifts to privately selected beneficiaries. The appropriate reference, therefore, is not to the value of the gift moving from the deceased spouse but to the net value of the gift received by the surviving spouse.

Second, the introductory phrases of § 812 (e) (1) (E) (ii) provide that the gift-amount determination is to be made “where such interest or property is incumbered in any manner, or where the surviving spouse incurs any obligation imposed by the decedent with respect to the passing of such interest . . . .” The Government, drawing upon the broad import of this language, argues: “An undertaking by the wife to convey property to a third person, upon which her receipt of property under the decedent’s will is conditioned, is plainly an 'obligation imposed by the decedent with respect to the passing of such interest.’ ” Respondents contend that “incumbrance or obligation” refers only to “a payment to be made out of property passing to the surviving spouse.” Respondents’ narrow construction certainly is not compelled by a literal interpretation of the statutory language. Their construction would embrace only, for example, an obligation on the property passing whereas the statute speaks of an obligation “with respect to the passing” gift. Finally, to arrive at the real value of the gift “such . . . obligation shall be taken into account . . . .” In context we think this relates the gift-amount determination to the net economic interest received by the surviving spouse.

This interpretation is supported by authoritative declarations of congressional intent. The Senate Committee on Finance, in explaining the operation of the marital deduction, stated its understanding as follows:

“If the decedent bequeaths certain property to his surviving spouse subject, however, to her agreement, or a charge on the property, for payment of $1,000 to X, the value of the bequest (and, accordingly, the value of the interest passing to the surviving spouse) is the value, reduced by $1,000, of such property.” S. Rep. No. 1013, 80th Cong., 2d Sess., Pt. 2, p. 6. (Emphasis added.)

The relevant Treasury Regulation is directly based upon, if not literally taken from, such expressions of legislative intent. Treas. Reg. 106, § 81.47c (b) (1949). The Regulation specifically includes an example of the kind of testamentary disposition involved in this case:

“A decedent bequeathed certain securities to his wife in lieu of her interest in property held by them as community property under the law of the State of their residence. The wife elected to relinquish her community property interest and to take the bequest. For the purpose of the marital deduction, the value of the bequest is to be reduced by the value of the community property interest relinquished by the wife.”

We conclude, therefore, that the governing principle, approved by Congress and embodied in the Treasury Regulation, must be that a marital deduction is allowable only to the extent that the property bequeathed to the surviving spouse exceeds in value the property such spouse is required to relinquish.

Our conclusion concerning the congressionally intended result under §812 (e)(1) accords with the general purpose of Congress in creating the marital deduction. The 1948 tax amendments were intended to equalize the effect of the estate taxes in community property and common-law jurisdictions. Under a community property system, such as that in Texas, the spouse receives outright ownership of one-half of the community property and only the other one-half is included in the decedent’s estate. To equalize the incidence of progressively scaled estate taxes and to adhere to the patterns of state law, the marital deduction permits a deceased spouse, subject to certain requirements, to transfer free of taxes one-half of the non-community property to the surviving spouse. Although applicable to separately held property in a community property state, the primary thrust of this is to extend to taxpayers in common-law States the advantages of “estate splitting” otherwise available only in community property States. The purpose, however, is only to permit a married couple’s property to be taxed in two stages and not to allow a tax-exempt transfer of wealth into succeeding generations. Thus the marital deduction is generally restricted to the transfer of property interests that will be includible in the surviving spouse’s gross estate. Respondents’ construction of §812 (e)(1) would, nevertheless, permit one-half of a spouse’s wealth to pass from one generation to another without being subject either to gift or estate taxes. We do not believe that this result, squarely contrary to the concept of the marital deduction, can be justified by the language of § 812 (e) (1). Furthermore, since in a community property jurisdiction one-half of the community normally vests in the wife, approval of the claimed deduction would create an opportunity for tax reduction that, as a practical matter, would be more readily available to couples in community property jurisdictions than to couples in common-law jurisdictions. Such a result, again, would be unnecessarily inconsistent with a basic purpose of the statute.

Since in our opinion the plain meaning of § 812 (e)(1) does not require the interpretation advanced by respondents, the statute must be construed to accord with the clearly expressed congressional purposes and the relevant Treasury Regulation. We conclude that, for estate tax purposes, the value of a conditional bequest to a widow should be the value of the property given to her less the value of the property she is required to give to another. In this case the value of the property transferred to Mrs. Stapf ($106,268) must be reduced by the value of the community property she was required to relinquish ($111,443). Since she received no net benefit, the estate is entitled to no marital deduction.

II. Claims Against the Estate and Administration Expenses.

A. Claims Against the Estate.

Section 812 (b)(3) of the 1939 Code provides for the deduction from the gross estate of “Such amounts . . . for claims against the estate ... as are allowed by the laws of the jurisdiction . . . under which the estate is being administered . . . The community debts in this case total $32,368, consisting largely of taxes due for past income. The decedent’s will directed that his executors pay “all and not merely one-half” of the community debts. Under Texas law, absent this provision, only one-half of the community debts would be charged to the decedent’s half of the community. The issue presented is whether, as a result of the testamentary direction, a deduction may be taken for the entire amount of the community debts as “claims against the estate . . . allowed by” state law.

The first question to consider is whether the claim is of the type intended to be deductible. It cannot be denied that where the executors are directed to pay the debts of another party the substance of the direction is to confer a beneficial gift on that party. Respondents’ contentions in effect require that § 812 (b) — designed to allow deductions for “expenses, losses, indebtedness, and taxes” — be construed to authorize tax-free gifts despite the general policy that wealth not be transmitted tax free at death. The provisions of § 812 (b) demonstrate that it was not intended to allow deductions for voluntary transfers that deplete the estate merely because the testator described the transfers or payments as the settlement of “claims” or “debts.” This intent is evidenced by the treatment of claims or debts founded upon promises or agreements. The section carefully restricts the deductible amount “in the case of clairhs against the estate . . . or any indebtedness . . . , when founded upon a promise or agreement, ... to the extent that they were contracted bona fide and for an adequate and full consideration in money or money’s worth. . . .” Absent such an offset or augmentation of the estate, a testator could disguise transfers as payments in settlement of debts and claims and thus obtain deductions for transmitting gifts. As this requirement suggests, a deduction under § 812 (b) should not be predicated solely on the finding that a promise or claim is legally enforceable under the state laws governing the validity of contracts and wills. The claims referred to by the statute are those “claims against” the property of the deceased -which are allowed by and enforceable under the laws of the administering State and not those claims created by the deceased’s gratuitous assumption of debts attaching to the property of another.

The pertinent Treasury Regulation states that the deductible claims are "such only as represent personal obligations of the decedent ...” We cannot agree with respondents’ contention that the debts chargeable to the wife’s community property are “personal obligations” of the decedent within the meaning of the Regulation. It is true, as the Court of Appeals stated, that under Texas law the husband, as manager of the community property, was personally liable for the full amount of community debts. 309 F. 2d 592, 596. His liability for the portion of debts chargeable to his wife’s community property was, however, accompanied by a right over against her half of the community. Ibid. The basic rule of Texas law is that the community is liable for its debts, and, accordingly, half the debts attach to the wife’s community property. Since the will of the decedent cannot be allowed to define what is an "obligation” or a "claim,” where, as in this case, the community is solvent, the debts chargeable to the wife’s property cannot realistically be deemed “personal obligations” of the decedent or “claims against” his estate.

The provisions of § 812 (b), like those of § 812 (e) allowing marital deductions, must be analyzed in light of the congressional purpose of equalizing the incidence of taxation upon couples in common-law and community property jurisdictions. If the deductible “claims” were to include all community debts that might be, in a literal sense, “personal obligations” of the husband as surety, then a married couple in a community property State might readily increase their tax-free estate transfers. For example, by borrowing against the value of the community property and then requiring that his executors pay all community debts, the husband could obtain a tax deduction for what would in effect be a testamentary gift to his wife. That gift might or might not qualify for treatment as a marital deduction, but it certainly was not intended to be made deductible by § 812 (b). A contrary interpretation of § 812 (b)(3) would, in our opinion, generally tend to create unwarranted tax advantages for couples in community property States.

B. Administration Expenses.

The testator’s will provided that administration expenses, as well as community debts, should be paid entirely out of his half of the community property. The administration expenses totalled $4,073. Under Texas law an allocable share of these costs was chargeable to the surviving spouse’s community property. That allocable share was determined to be 35% or $1,426. The issue is whether the executors’ payment of the costs attributable to the wife’s property are deductible “administration expenses . . . allowed by” the law of the State under §812 (b)(2).

The interpretation of “administration expenses” under §812 (b)(2) involves substantially the same considerations that determine the interpretation of “claims against the estate” under § 812 (b)(3). In both instances, the testator, by directing that payment be made of debts chargeable to another or to non-estate property, reduces his net estate and in effect confers a gift or bequest upon another. We believe that the provisions of § 812 (b), like those of § 812 (e) providing the marital deduction, must be read in light of the general policies of taxing the transmission of wealth at death and of equalizing the tax treatment of couples in common-law and in community property jurisdictions. We hold, therefore, that a deduction may not be allowed for administration costs chargeable to the surviving spouse’s community property.

C. The Payment of Debts and Expenses as a Marital Gift.

In our view the payments made as a result of the testator’s assumption of responsibility both for his wife’s share of the community debts and for her share of the administration expenses are more properly characterized as marital gifts rather than as “claims” or “expenses.” Since these gifts were to the surviving spouse, respondents contend that a marital deduction should be allowed. Our interpretation of § 812 (e) disposes of this argument, for under any view of the facts, even if these items are deemed to be gifts to the wife, the will required her to surrender property more valuable than the bequests she received. In the absence of a net benefit passing to the surviving spouse, no marital deduction is allowable.

The judgment of the Court of Appeals for the Fifth Circuit is reversed and the case remanded for proceedings in accordance with this opinion.

It is so ordered.

       62 Stat. 117 (1948), now Int. Rev. Code of 1954, § 2056 (b) (4) (B). The provisions involved are § 812 (e) (1) (A) and (E) (ii):
      “(e) Bequests, Etc., to SURVIVING Spouse.—
      “(1) ALLOWANCE OR MARITAL DEDUCTION. — ■
      “(A) In General. — An amount equal to the value of any interest in property which passes or has passed from the decedent to his surviving spouse, but only to the extent that such interest is included in determining the value of the gross estate.
      “(E) Valuation Of Interest Passing To Surviving Spouse. — In determining for the purposes of subparagraph (A) the value of any interest in property passing to the surviving spouse for which a deduction is allowed by this subsection'—
      “(ii) where such interest or property is incumbered in any manner, or where the surviving spouse incurs any obligation imposed by the decedent with respect to the passing of such interest, such incum-brance or obligation shall be taken into account in the same manner as if the amount of a gift to such spouse of such interest were being determined.”

       53 Stat. 123 (1939), now Int. Rev. Code of 1954, §2053 (a). Subsequent references will be to the 1939 Code under which the case arose. The pertinent provisions of § 812 (b) authorize deductions for:
      “(b) Expenses, Losses, Indebtedness, and Taxes. — Such amounts—
      “(1) for funeral expenses,
      “(2) for administration expenses,
      “(3) for claims against the estate, and
      “(4) for unpaid mortgages upon, or any indebtedness in respect to, property where the value of decedent’s interest therein, undiminished by such mortgage or indebtedness, is included in the value of the gross estate,
      “as are allowed by the laws of the jurisdiction, whether within or without the United States, under which the estate is being administered, but not including any income taxes upon income received after the death of the decedent, or property taxes not accrued before his death, or any estate, succession, legacy, or inheritance taxes. The deduction herein allowed in the case of claims against the estate, unpaid mortgages, or any indebtedness shall, when founded upon a promise or agreement, be limited to the extent that they were contracted bona fide and for an adequate and full consideration in money or money’s worth . . . .”

       The figures stated throughout are rounded to the nearer dollar.

       The apportionment of administration expenses was initially determined by a revenue examiner and was sustained by the District Court. 189 F. Supp. 830, 838.

       This includes $700 for an automobile specifically bequeathed to Mrs. Stapf. There is some question as to whether Mrs. Stapf should be credited with receiving the full value of the automobile ($1,400) or only a one-half interest ($700). For present purposes the difference is immaterial for it is insufficient to alter the basic fact that the widow did not receive a net benefit by electing to take under the will. We therefore accept the figures used by the courts below and consider Mrs. Stapf as receiving only a one-half interest ($700) in the automobile.

       The parties agree that the net effect of taking under the will may be computed by another method. As explained by the Court of Appeals, “Computed differently but with the same result, the widow retained a one-third interest out of the one-half of the community owned by her, thereby transferring only a one-sixth interest under the election to take. Under this method of computation she transferred property having a valuation of $27,541.16 and received property being the one-third interest in the separate property of the husband and the one-half interest in the automobile of the aggregate value of the $22,366.66, making a net loss to her of $5,174.50.” 309 F. 2d 592, 594.

       The Commissioner did in fact allow a marital deduction for $700, representing a one-half interest in the automobile. 309 F. 2d 592, 597, n. 5. That allowance was not challenged by the Government in the District Court. We therefore do not review the judgment of the Court of Appeals insofar as it allows this $700 deduction.

       See, e. g., Commissioner v. Wemyss, 324 U. S. 303. There the Court stated that under the Revenue Act of 1932 mere detriment to the transferee did not constitute the requisite “consideration in money or money’s worth” to the transferor so as to relieve him of gift tax liability. Respondents’ reliance on this ease ignores that it involved neither a determination of who was to be considered the beneficial donee nor a valuation of the gift received by such donee.

       The portion of the language relied upon provides that the valuation be “in the same manner as if the amount of a gift to such spouse of such interest were being determined.”

      Treas. Reg. 105, § 81.47c (b) (3) (1949), now Treas. Reg. § 20.2056 (b)-4 (b) (3) (1958). The Regulation provides another relevant illustration “of property interests which passed from the decedent to his surviving spouse subject to the imposition of an obligation by the decedent: (1) A decedent devised a residence valued at $25,000 to his wife, with a direction that she pay $5,000 to his sister. For the purpose of the marital deduction, the value of the property interest passing to the wife is only $20,000.”
      See Lowndes and Kramer, Federal Estate and Gift Taxes (1962), § 17.4: “[W]hat the Regulations are driving at seems to be this. If a decedent bequeaths property to his wife in lieu of her interest in community property, which is not part of his estate and which does not pass to her from him, it seems clear that the only thing which the surviving spouse actually receives from the decedent is the excess of the interest bequeathed to her over and above the value of her interest in the community property. Therefore, this should be the only amount which qualifies for the marital deduction . . . .”

       This Court has frequently “given considerable and in some cases decisive weight to . . . interpretative Regulations of the Treasury and of other bodies that were not of adversary origin.” Skidmore v. Swift & Co., 323 U. S. 134, 140. Although the weight to be given to an interpretative rule varies with its statutory and legislative context, a Treasury Regulation is particularly persuasive when, as in this case, it is supported by declarations of congressional intent.

       See H. R. Rep. No. 1274, 80th Cong., 2d Sess., pp. 24-26; S. Rep. No. 1013, 80th Cong., 2d Sess., pp. 26-29; Sugarman, Estate and Gift Tax Equalization — The Marital Deduction (1948), 36 Cal. L. Rev. 223, 228-230.

       The congressional concern with the eventual taxability of marital-deduction property is indicated by the terminable interest rule of § 812 (e) (1) (B). See S. Rep. No. 1013, supra, note 12, p. 28; Warren and Surrey, Federal Estate and Gift Taxation (1961), pp. 759-760.

       The Court of Appeals recognized the effect of its decision: “Here estate taxes are due now on the property of the husband with the devise to the widow excluded. It is a part of the marital deduction or exclusion on which taxes are deferred to the estate of the widow to be assessed on so much of it as survives on another day. The net of the transfer by the widow became subject to gift taxes at the time of the transfer. The property transferred by the widow will, to the extent of an amount equal to the devise to her, escape both gift and estate taxes.” 309 F. 2d 592, 598. For an illustration of the tax effects of the decision, see the dissent of Judge Wisdom. 309 F. 2d, at 608-609.

       See 76 Harv. L. Rev. 1671, 1675.

       See Morgan v. Commissioner, 309 U. S. 78, 80-81 (concerning the meaning of “general power of appointment” under a federal revenue act): “State law creates legal interests and rights. The federal revenue acts designate what interests or rights, so created, shall be taxed. Our duty is to ascertain the meaning of the words used to specify the thing'taxed. If it is found in a given case that an interest or right created by local law was the object intended to be taxed, the federal law must prevail no matter what name is given to the interest or right by state law.” See Hart and Wechsler, The Federal Courts and the Federal System (1953)., pp. 456-457.

       See, e. g„ Lowndes and Kramer, op. cit., supra, note 10, §§ 1.2, 2.2.

       The majority of the Court of Appeals passed over the adequate-consideration provision because “the debts here were in the main for income taxes and ad valorem taxes, debts imposed by law.” 309 F. 2d 592, 596. However, since one-half of the taxes were chargeable to the wife’s community property, the disputed claims were in fact imposed on the estate only by the terms of the will and the widow’s election to take under those terms.

       Treas. Reg. 105, §81.36 (1942), now Treas. Reg. §20.2053-4 (1958): “Claims against the estate. — The amounts that may be deducted under this heading are such only as represent personal obligations of the decedent existing at the time of his death, whether or not then matured, and interest thereon which had accrued at the time of death. . . . Only claims enforceable against the decedent’s estate may be deducted. . . .” With regard to the disputed deduction for the wife’s share of community debts, it has been suggested that: “because the decedent’s estate is not bound, even under state law, until after the widow elects, allowance of the deduction may be incompatible with the regulation requiring that the claims be in existence at the decedent’s death. This requirement could only be fulfilled by an election which would work retroactively.” 37 Tul. L. Rev. 297, 315.

       3 09 F. 2d 592, 604 (Wisdom, J., dissenting): “For example, in the twilight of their years, a couple with community property worth $1,000,000 could borrow an additional $1,000,000 and invest it in securities, using the $2,000,000 as collateral. As a result, the community property would be increased from one million to two million dollars, and would have debts against it of one million dollars. If the husband provided by will that all community debts be paid out of his share of the community property, upon his death his share of the community property would be worth $1,000,000. All of this, however, would be matched by deductible community debts. Thus, under the Court’s holding, the entire 'net’ estate of $1,000,000 would pass, untaxed, to the wife.”

       See infra, p. 134.

       See 76 Harv. L. Rev. 1671, 1675.

       Respondents concede that “even with the benefit of the bequest of 1/3 of the separate property to her and the benefit of the debt and expense assumption provisions, Mrs. Stapf ended up with less than she would have owned had she elected to take against the will.” Her share of the gross community assets was $129,052. The portion of the debts ($16,184) and administration expenses ($1,426) chargeable to her was $17,610. When the assumption of the debts and expenses is viewed as a legacy, the effect of taking under the will may be summarized as follows: Mrs. Stapf, in effect retained one-third of the total community property remaining after certain bequests ($83,902; see note 5, supra) and allowed the balance of her community ($129,052 minus $83,902) to pass into the trust for the children. Thus she gave up property worth $45,151. In return she was given separate property valued at $22,367 (see note 6, supra) and the benefit of the debt and expense assumption, or $17,610, a total transfer of $39,976. Thus, the exchange produced a net loss to Mrs. Stapf of $5,175.


author: Per Curiam.

text:
    DRESNER et al. v. CITY OF TALLAHASSEE.
    No. 35.
    Argued October 23, 1963.
    Questions certified to Supreme Court of Florida December 2, 1963.

      Howard Dixon and Carl Rachlin argued the cause for petitioners. With them on the briefs were Alfred I. Hopkins and Tobias Simon.

      Edward J. Hill and Roy T. Rhodes argued the cause for respondent. With them on the brief was Rivers Buford, Jr.

   Per Curiam.

Considering that there are questions of Florida law answers to which are necessary to enable this Court to determine its jurisdiction over this cause, and with respect to which there appear to be no precise controlling precedents in the decisions of the Supreme Court of Florida, this Court desires to certify to the Supreme Court of Florida, pursuant to Rule 4.61 of the Florida Appellate Rules, the questions stated hereafter.

The petitioners have been tried and convicted in the Municipal Court of Tallahassee for unlawful assembly, under a municipal ordinance which incorporates by reference the state unlawful assembly statute. The convictions were affirmed in the Circuit Court of the Second Judicial District, Leon County, Florida. The unreported opinion of that court, a copy of which, taken from the record, is attached to this certificate as an Appendix, contains a statement of the facts on which the convictions rested. The petitioners sought certiorari in this Court, which the City of Tallahassee opposed on the ground, inter alia, that the judgment of the Circuit Court was not “rendered by the highest court of a State in which a decision could be had,” as required by 28 U. S. C. § 1257. This Court granted certiorari, 372 U. S. 963, and subsequently directed counsel to file briefs on the jurisdictional issue, which counsel have done.

The questions which this Court desires to certify are:

1. On a timely petition for writ of certiorari or other process, does the Florida District Court of Appeal or any other court of Florida have jurisdiction to review a judgment of the Circuit Court affirming a conviction in the Municipal Court of a violation of a municipal ordinance which incorporates a state statute by reference, where the questions presented for review concern the federal constitutionality of the ordinance on its face and as applied?

2. If the District Court of Appeal or any other court of Florida does have such jurisdiction and had granted review in this case by way of a writ of certiorari or other process, would it have been empowered to consider fully each of the following contentions, all indisputably properly preserved:

(a) “Petitioners were peaceable and orderly at all times; hence, there was no evidence whatsoever to support the convictions below for unlawful assembly, and therefore Petitioners have been denied due process of law under the Fourteenth Amendment”;
(b) “The convictions constituted a violation of Petitioners’ rights of freedom of speech and freedom of assembly as guaranteed by the Fourteenth Amendment”;
(c) “The arrests and convictions herein constituted an undue burden on interstate commerce in violation of the interstate commerce clause of the Federal Constitution”;
(d) “The arrests and convictions herein constituted a denial of the equal protection of the laws guaranteed by the Fourteenth Amendment”?

If not, in what respects would the scope of review have been limited?

The Clerk of this Court is directed to transmit this certificate, signed by The Chief Justice and under the official seal of the Court, to the Supreme Court of Florida, and simultaneously to transmit copies thereof to the attorneys for the respective parties.

APPENDIX.

Opinion of the Circuit Court of the Second Judicial Circuit, Leon County, Florida.

Order Affirming Judgments.

This is an appeal from convictions in the Municipal Court of the City of Tallahassee, Florida of the ten appellants named in the caption who were charged with unlawful assembly. A fine was assessed against each of them with an alternate jail sentence.

The formal charge is in a single count naming the ten appellants and three others as defendants and alleges an unlawful assembly on June 16, 1961 “in that, they being more than three (3) persons, met together to commit a breach of the peace, acting together and concertedly to occupy and continuously occupy certain chairs and seating facilities in the Tallahassee Municipal Airport, making and cancelling group airline reservations on the two (2) operating airline schedules departing Tallahassee on said date, and on June 15, 1961, and meeting together in concert attendant with circumstances calculated to excite alarm, endanger the public peace and excite fear, and in such nature as to inspire well-grounded fear in persons of reasonable courage, of riot, or other breaches of public peace, and while so unlawfully assembled” were commanded by a police officer of the city, after identifying himself as such, to immediately and peaceably disperse, and they refused or neglected to do so.

The appellants contend that the judgments pursuant to convictions violate their rights guaranteed by the Florida and United States Constitutions in that they have been denied the equal protection of the laws and have been deprived of liberty or property without due process of law. They contend that the state statute, Chap. 61-237, Laws of 1961, (F. S. 870.04), (which, by reference adoption in a municipal ordinance, is made an ordinance of the City of Tallahassee) is unconstitutional and void, either on its face or as it has been applied to the appellants in this case.

The pertinent portions of the statute, adopted as an ordinance, are:

“If any number of persons . . . are unlawfully, riotously or tumultuously assembled in any . . . city or municipality . . . any . . . police officer of said city or municipality . . . shall go among the persons so assembled . . . and shall, in the name of the state command all the persons so assembled immediately and peaceably to disperse; and if such persons do not thereupon immediately and peaceably disperse, said [officer] shall command the assistance of all persons in seizing, arresting and securing such persons in custody; and if any person present . . . when required by such [officer] to depart from the place, refuses or neglects to do so, he shall be deemed one of . . . the persons unlawfully assembled and may be prosecuted and punished accordingly.”

The facts in the case are not in dispute and squarely present the question as to whether or not the conduct of the appellants was an exercise by them of rights they hold under state and federal constitutional provisions, which would preclude their prosecution, conviction and sentence for unlawful assembly in the trial court.

The appellants are clergymen, two being rabbis and the others being ordained ministers of several Protestant denominations. They are residents of New Jersey, New York, Massachusetts or Connecticut. Some of them are of the white race and some are negroes. About June 12 or 13, 1961 they, together with eight other clergymen from the same general area, departed from Washington, D. C. by interstate common carrier bus for a so-called “Freedom Ride” into Virginia, the Carolinas, Georgia, and Florida. The bus ride terminated in Tallahassee June 15, 1961. The “Freedom Riders” left their buses at the Greyhound bus terminal there and went into the terminal lunch room to obtain food which was served them.

This trip was sponsored and at least partially financed by an organization known as C O R E (Congress on Racial Equality) which has been aggressive in promoting racial integration and desegregation. The trip was well publicized, having been given wide coverage in all news media including radio and television. The time and place of arrival in Tallahassee was heralded and well known.

The purposes of the “Freedom Ride”, as stated by appellant Collier, who was the spokesman for the group, were two-fold: (1) To ascertain whether or not there were facilities available on an integrated basis to interstate passengers in waiting rooms, in rest rooms, in eating facilities in the terminals through which they would pass; and (2) To bear witness as ministers, rabbis and clergymen to the struggle to obtain those rights “guaranteed us by the Constitution.”

Shortly prior to the time the buses bearing the “Freedom Riders” were scheduled to arrive at about noon on June 15, there had gathered in the vicinity of the bus station a number of persons and groups of persons. Law enforcement officers, including city police, had been dispatched to the area to prevent any disturbance. It was suspected that resentment against the “Freedom Riders” might result in some attempts at violence toward them or precipitate other disorders. When the buses arrived, law enforcement personnel moved in and gave protection to the passengers as they left the bus and entered the lunch room in the terminal. Apparently they were served in the lunch room under circumstances and policies satisfactory to them.

In approximately an hour after arrival at the bus terminal the eighteen “Freedom Riders” proceeded to the Tallahassee Municipal Airport ostensibly for the purpose of boarding a 3:25 P. M. Eastern Air Lines plane for passage to Washington, Newark, or New York. They were transported to the airport in private cars presumably furnished by local sympathizers with their objectives.

Upon arrival at the airport they found that the restaurant there had been closed. When the time approached for arrival of the 3:25 plane the ten appellants cancelled the reservation they had previously made for the flight. The other eight boarded the plane when it arrived and departed for their destinations in the East.

At that time, the airport arrangement provided separate waiting rooms, or areas, for white and negro; also separate rest rooms; and separate areas for serving food, the white area being a glassed-in place and the negro consisting of a counter with several stools. However, as mentioned before, the eating service had been discontinued by the closing of the restaurant facilities. A sandwich vending machine was in the lobby, but the prices on same had been marked up from previous prices.

The appellants stayed together in a more or less compact group in the lobby area most of the time and no attempt was made to enforce separation of the races in the waiting room. Rest rooms were used by them without observing the designation of the segregated facilities.

After cancelling their reservations for the 3:25 P. M. flight they sought and ultimately obtained reservations for a flight the next morning at 8:25 on an E. A. L. plane. They remained in the airport until about 11:00 P. M. that evening for the purpose of observing if the restaurant would open and service.be granted to them. The restaurant remained closed.

Law enforcement officers, including city police, were detailed to keep order. The activities and objectives of the appellants had been the subject of news reporting and groups of people were seen to be gathering or attempting to gather in the vicinity of the airport. There were critical and hostile comments made about the appellants. The police turned away some of those gathering when it was apparent such persons had no airport business or interest. Persons were even screened at the entrance and turned away by officers if they had no business to transact at the airport.

The chief of police advised the appellants that the airport terminal would close for the night at approximately 11:45 P. M. and a spokesman for appellants requested protection as they moved from the airport into the city and also on the return to the airport the next morning. Such protection by escort of law enforcement officers was provided.

The appellants thus left the airport at about 11:00 P. M. on the 15th to return the next morning prior to the scheduled departure at 8:25 A. M. of the plane on which they had obtained reservations. They were given escort security protection on both the occasions of leaving and returning to the terminal.

The restaurant was also closed on the morning of June 16. At 8:15 A. M. all ten of the appellants cancelled their reservations for the 8:25 flight and remained in the waiting room after that flight had departed. At 8:20 A. M. they sought, and ultimately obtained, reservations on a National Airlines flight scheduled to depart at 1:47 P. M. that day, but cancelled just prior to noon.

During these periods there continued to be movements and gatherings of groups of people in cars and there was a hostility and open resentment against the conduct and attitudes of the appellants. A considerable number of police, sheriff’s deputies and highway patrolmen had been detailed to prevent disorder. City, county and state officials, including the Governor, were apprehensive and moved to provide necessary law enforcement personnel to preserve order.

At about 12:15 P. M., Mr. James Messer, Jr., city attorney of Tallahassee and a special police officer of the city, after conferring with the mayor and chief of police of the city, approached the appellants who were together and inquired if there was a leader of the group. Appellant Collier arose and identified himself and assumed to act as spokesman. Mr. Messer identified himself and his official positions, exhibiting his police badge. Others in the group gathered around Mr. Messer and Rev. Collier and Mr. Messer read to them a proclamation. He stated that the assembly of the appellants at the Municipal Airport of Tallahassee will tend to create a disturbance or incite a riot or disorderly conduct within the City of Tallahassee at its Municipal Airport over which the city had jurisdiction. He mentioned incidents of the previous night and fears of more unrest. He then commanded them in the name of the state and city to immediately and peaceably disperse, and explained that such meant from the airport property. He then added that failure to so disperse would result in arrest for unlawful assembly. Collier asserted that they were interstate passengers, to which Messer replied that he did not consider them to be bona fide passengers in view of their reservation cancellations.

Several local sympathizers with the appellants dispersed, but appellants failed to do so. After about iy2 minutes, Mr. Messer turned to the Chief of Police and remarked “Chief, you can carry out your orders.” The appellants were arrested and taken into custody.

The appellants take the view that the segregation practices with regard to waiting rooms, rest room facilities, and restaurant or eating facilities at the airport were violative of constitutional guarantees of equal protection of the law. They would also inject into the case the installation of sandwich and cigarette machines, at or just prior to their arrival, which inflated the prices of merchandise vended to double what it had been. The closing of the restaurant on the day of their arrival and its opening shortly after their departure is viewed as an important factor.

These facts are, in the view of this Court, not at all significant in the legal problems involved in the charge against the appellants and the disposition of such charge by the trial court.

The municipality of Tallahassee operates in a proprietary capacity and in a governmental capacity. Among its proprietary functions is the ownership and operation of a municipal airport and supervision over the concessions there. Assuming, but not deciding, that its policies of segregation of the races in its facilities are unlawful and did constitute a violation of some duty to the appellants if enforced against them, and further assuming, without deciding, that the closing of the restaurant under the circumstances violated some duty to them, do such circumstances justify a concerted protest demonstration by appellants of their views and convictions over a protracted period of time during which tensions and tempers rise in the community which threaten to erupt into disorder and thus render the city, in its governmental capacity, powerless to terminate the demonstration in the exercise of its police power?

Stated another way, may not a lawful assembly for the purpose of protesting and demonstrating opposition to a course of policy practiced by the municipality become an unlawful assembly when pursued to unreasonable lengths imposing unreasonable burdens on others, after the lawful objectives of the demonstration had been fairly accomplished?

It is fundamental that our constitutions accord to the citizen of the United States the right of freedom of speech and of assembly and to peaceably petition for a redress of grievances. Such freedoms are jealously guarded and when exercised in good faith and in good order may not be lawfully interfered with by governmental action. However, it is not a license to take into one’s own hands the enforcement of law or by excessive harassment, effect coercion and acceptance of one’s convictions and interpretations of legal rights by governmental entities whose policies are in conflict. Such procedures wholly ignore the very machinery provided by the constitutions and laws of the nation and state for the declaring, securing and enforcement of constitutional and other legal rights. It is the courts, both state and federal, to whom resort is readily available for citizens to seek recognition and enforcement of legal rights and immunities. That such courts may not move as swiftly as the individual would wish does not authorize pursuit of personal means which unnecessarily create or threaten public disturbance or disorder, or which substantially interfere with normal, orderly functions of a public facility.

Such a procedure is a form of anarchy which, if it becomes an accepted practice, can have only the effect of seriously weakening orderly government.

The appellants, prior to the reading of the riot act to them, had achieved their announced objectives. They had observed both at the bus station and the airport the integration or lack of it of the waiting room, rest room and restaurant facilities. They had very effectively borne witness as clergymen and otherwise of their sympathy with the struggle to obtain desegregation of the various facilities of interstate travel.

To accommodate and facilitate those legitimate objectives the law enforcement agencies of city, county and state had given protection against potential violence or other disorder from groups or individuals who resented the activities of the appellants. This protection was afforded at the bus station, at the airport on the afternoon of June 15, on the evening of June 15 when the appellants left the airport to come into town and on the following morning when they returned to the airport purportedly to take an early plane. However, instead of using the reservations they had obtained they made a cancellation. This was thrice they had made last minute cancellations of reservations for the sole reason that they wished to eat in the restaurant, which was closed. In the meantime their conduct and persistence was arousing increased resentment and anger in the community with threats of violence and disorder toward the appellants.

Obviously, the conduct of appellants had revealed a pattern. They would make reservations for travel, wait in the lobby until just before the plane they were scheduled to take arrived and then cancel, make reservations on a later flight and then again cancel at the last minute, at all times remaining in the airport but never taking a plane. The effect is obvious. The seats and other facilities are occupied by them and their use denied to those who actually wished to travel. The use of rest rooms and wash rooms by them partakes more of lodging than a comfort feature for those whose sole purpose is some airport business. The reservation of space and last minute cancellations prevented the use of that space of the flights involved, resulting in loss and inconvenience to the air line involved and probable denial to other would-be travelers of the use of that space. The sole purpose of such a course of harassment was to goad the municipality and its restaurant lessee to open the restaurant and gratify the appellants' wishes that they be served in the style and manner they deemed to be their right.

Controversies between citizens and governmental units are not unique. In nearly every instance there is a conflict in what the citizen contends he has a right to claim and the governmental entity which would deny the validity of such claim. The citizen may freely express his views and seek to cultivate converts to them with a view of bringing moral or political pressures on the officers of the public body to accord his demands. However, such means must be exercised in a manner that is reasonable and not harmful to the rights of others or the peace and good order of the community. Especially is this true when the controversy is one of public interest in which there are strong and emotional feelings on the part of a substantial number of persons in the community.

The courts, both state and federal, are open to resolve controversies on constitutional issues in duly instituted and processed civil actions. Indeed, the very issue in the demonstrations of the appellants was subsequently presented to and adjudicated by ¿he United States District Court for the Northern District of Florida. Brooks, et al. v. Tallahassee, 202 Fed. Supp. 56. When citizens press their demonstrations in behalf of a cause (however worthy they deem their objectives to be) beyond the bounds of fully and effectively delivering their message and reach the stage that they materially and harmfully interfere with the orderly business and lawful activities of others, who are acting in public or private capacities, then the conduct is disorderly and assembly for carrying it out is unlawful. Such was the case here.

The judgments appealed from are hereby affirmed.

Affirmed.

Ben C. Willis, Circuit Judge

       Section 23-38 of the Tallahassee Code, which provides that it shall be unlawful for any person to commit an act which is or shall be recognized by the laws of the State as a misdemeanor.
      Chapter 61-237, Laws of 1961, Florida Statutes § 870.04 provides:
      “If any number of persons, whether armed or not, are unlawfully, riotously or tumultuously assembled in any county, city or municipality, the sheriff or his deputies, or any constable or justice of the peace of the county, or the mayor, or any commissioner, councilman, alderman or police officer of the said city or municipality, or any officer or member of the florida [sic] highway patrol, shall go among the persons so assembled, or as near to them as may be with safety, and shall in the name of the state command all the persons so assembled immediately and peaceably to disperse; and if such persons do not thereupon immediately and peaceably disperse, said officers shall command the assistance of all persons in seizing, arresting and securing such persons in custody; and if any person present being so commanded to aid and assist in seizing and securing such rioter or persons so unlawfully assembled, or in suppressing such riot or unlawful assembly, refuses or neglects to obey such command, or, when required by such officers to depart from the place, refuses and neglects to do so, he shall be deemed one of the rioters or persons unlawfully assembled, and may be prosecuted and punished accordingly.”
      The State refers in its brief to'a Tallahassee ordinance specifically prohibiting unlawful assembly, which is also included in the record by stipulation of the parties. This ordinance is similar in substance to the state statute quoted above. However, all parties seemingly have proceeded on the premise that the petitioners were charged and convicted only under the general ordinance which incorporated the state statute. The Circuit Court plainly decided the case on that basis. See Appendix, post, p. 139.

       The petitioners appealed their convictions directly to the Supreme Court of Florida. The Supreme Court ruled that it lacked jurisdiction and ordered the appeal transferred to the Circuit Court. 134 So. 2d 228.
      After the convictions were affirmed in the Circuit Court and prior to the filing of a petition for certiorari in this Court, the petitioners attempted to file, and subsequently withdrew, a petition for certiorari in the District Court of Appeal.

      Entered August 16, 1962. (Footnote supplied.)

       Of these three one was acquitted and the other two were granted a nolle prosequi. (Original footnotes renumbered.)

       Sec. 23-38, Tallahassee Code, provides that it shall be unlawful for any person to commit any act which is or shall be recognized by the laws of the state as a misdemeanor. The penalty is a maximum fine of $500.00 or 60 days imprisonment or both.