source: Caselaw Access Project

author: Mr. Justice Stewart

license: Public Domain

text:
    NATIONAL LABOR RELATIONS BOARD v. C & C PLYWOOD CORP.
    No. 53.
    Argued November 15, 1966.
    Decided January 9, 1967.

      Daniel M. Friedman argued the cause for petitioner. On the brief were Solicitor General Marshall, Arnold Ordman, Dominick L. Manoli, Norton J. Come and Lawrence M. Joseph.

      George J. Tichy argued the cause and filed a brief for respondent.
   Mr. Justice Stewart

delivered the opinion of the Court.

The respondent employer was brought before the National Labor Relations Board to answer a complaint that its inauguration of a premium pay plan during the term of a collective agreement, without prior consultation with the union representing its employees, violated the duties imposed by §§ 8 (a)(5) and (1) of the National Labor Relations Act. The Board issued a cease-and-desist order, rejecting the claim that the respondent’s action was authorized by the collective agreement. The Court of Appeals for the Ninth Circuit refused, however, to enforce the Board’s order. It reasoned that a provision in the agreement between the union and the employer, which “arguably” allowed the employer to institute the premium pay plan, divested the Board of jurisdiction to entertain the union’s unfair labor practice charge. 351 F. 2d 224. We granted certiorari to consider a substantial question of federal labor law. 384 U. S. 903.

In August 1962, the Plywood, Lumber, and Saw Mill Workers Local No. 2405 was certified as the bargaining representative of the respondent’s production and maintenance employees. The agreement which resulted from collective bargaining contained the following provision:

“Article XVII
“WAGES
“A. A classified wage scale has been agreed upon by the Employer and Union, and has been signed by the parties and thereby made a part of the written agreement. The Employer reserves the right to pay a premium rate over and above the contractual classified wage rate to reward any particular employee for some special fitness, skill, aptitude or the like. The payment of such a premium rate shall not be considered a permanent increase in the rate of that position and may, at sole option of the Employer, be reduced to the contractual rate . . .

The agreement also stipulated that wages should be “closed” during the period it was effective and that neither party should be obligated to bargain collectively with respect to any matter not specifically referred to in the contract. Grievance machinery was established, but no ultimate arbitration of grievances or other disputes was provided.

Less than three weeks after this agreement was signed, the respondent posted a notice that all members of the “glue spreader” crews would be paid $2.50 per hour if their crews met specified biweekly (and later weekly) production standards, although under the “classified wage scale” referred to in the above quoted Art. XVII of the agreement, the members of these crews were to be paid hourly wages ranging from $2.15 to $2.29, depending upon their function within the crew. When the union learned of this premium pay plan through one of its members, it immediately asked for a conference with the respondent. During the meetings between the parties which followed this request, the employer indicated a willingness to discuss the terms of the plan, but refused to rescind it pending those discussions.

It was this refusal which prompted the union to charge the respondent with an unfair labor practice in violation of §§ 8 (a)(5) and (1). The trial examiner found that the respondent had instituted the premium pay program in good-faith reliance upon the right reserved to it in the collective agreement. He, therefore, dismissed the complaint. The Board reversed. Giving consideration to the history of negotiations between the parties, as well as the express provisions of the collective agreement, the Board ruled the union had not ceded power to the employer unilaterally to change the wage system as it had. For while the agreement specified different hourly pay for different members of the glue spreader crews and allowed for merit increases for “particular employee[s],” the employer had placed all the members of these crews on the same wage scale and had made it a function of the production output of the crew as a whole.

In refusing to enforce the Board’s order, the Court of Appeals did not decide that the premium pay provision of the labor agreement had been misinterpreted by the Board. Instead, it held the Board did not have jurisdiction to find the respondent had violated § 8 (a) of the Labor Act, because the “existence ... of an unfair labor practice [did] not turn entirely upon the provisions of the Act, but arguably upon a good-faith dispute as to the correct meaning of the provisions of the collective bargaining agreement . . . .” 351 F. 2d, at 228.

The respondent does hot question the proposition that an employer may not unilaterally institute merit increases during the term of a collective agreement unless some provision of the contract authorizes him to do so. See Labor Board v. J. H. Allison & Co., 165 F. 2d 766 (C. A. 6th Cir.), cert. denied, 335 U. S. 814. Cf. Beacon Piece Dyeing Co., 121 N. L. R. B. 953 (1958). The-argument is, rather, that since the contract contained a provision which might have allowed the respondent to institute the wage plan in question, the Board was powerless to determine whether that provision did authorize the respondent’s action, because the question was one for a state or federal court under § 301 of the Act.

In evaluating this contention, it is important first to point out that the collective bargaining agreement contained no arbitration clause. The contract did provide grievance procedures, but the end result of those procedures, if differences between the parties remained unresolved, was economic warfare, not “the therapy of arbitration.” Carey v. Westinghouse Corp., 375 U. S. 261, 272. Thus, the Board’s action in this case was in no way inconsistent with its previous recognition of arbitration as “an instrument of national labor policy for. composing contractual differences.” International Harvester Co., 138 N. L. R. B. 923, 926 (1962), aff’d sub nom. Ramsey v. Labor Board, 327 F. 2d 784 (C. A. 7th Cir.), cert. denied, 377 U. S. 1003.

The respondent’s argument rests primarily upon the legislative history of the 1947 amendments to the National Labor Relations Act. It is said that the rejection by Congress of a bill which would have given the Board unfair labor practice jurisdiction over all breaches of collective bargaining agreements shows that the Board is without power to decide any case involving the interpretation of a labor contract. We do not draw that inference from this legislative history.

When Congress determined that the Board should not have general jurisdiction over all alleged violations of collective bargaining agreements and that such matters should be placed within the jurisdiction of the courts, it was acting upon a principle which this Court had already recognized:

“The Railway Labor Act, like the National Labor Relations Act, does not undertake governmental regulation of wages, hours, or working conditions. Instead it seeks to provide a means by which agreement may be reached with respect to them.”

Terminal Railroad Assn. v. Brotherhood of Railroad Trainmen, 318 U. S. 1, 6. To have conferred upon the National Labor Relations Board generalized power to determine the rights of parties under all collective agreements would have been a step toward governmental regulation of the terms of those agreements. We view Congress’ decision not to give the Board that broad power as a refusal to take this step.

But in this case the Board has not construed a labor agreement to determine the extent of • the contractual rights which were given the union by the employer. It has not imposed its own view of what the terms and conditions of the labor agreement should be. It has done no more than merely enforce a statutory right which Congress considered necessary to allow labor and management to get on with the process of reaching fair terms and conditions of employment — “to provide a means by which agreement may be reached.” The Board’s interpretation went only so far as was necessary to determine that the union did not agree to give up these statutory safeguards. Thus, the Board, in necessarily construing a labor agreement to decide this unfair labor practice case, has not exceeded the jurisdiction laid out for it by Congress.

This conclusion is reinforced by previous. judicial recognition that a contractual defense does not divest the Labor Board of jurisdiction. For example, in Mastro Plastics Corp. v. Labor Board, 350 U. S. 270, the legality of an employer’s refusal to reinstate strikers was based upon the Board’s construction of a “no strike” clause in the labor agreement, which the employer contended allowed it to refuse to take back workers who had walked out in protest over its unfair labor practice. The strikers applied to the Board for reinstatement and back pay. In giving the requested relief, the Board was forced to construe the scope of the “no strike” clause. This Court, in affirming, stressed that the whole case turned “upon the proper interpretation of the particular contract . . . .” 350 U. S., at 279. Thus, Mastm Plastics stands squarely against the respondent’s theory as to the Board’s lack of power in the present case.

If the Board in a, case like this had no jurisdiction to consider a collective agreement prior to an authoritative construction by the courts, labor organizations would face inordinate delays in obtaining vindication of their statutory rights. Where, as here, the parties have not provided for arbitration, the union would have to institute a court action to determine the applicability of the premium pay provision of the collective bargaining agreement. If it succeeded in court, the union would then have to go back to the Labor Board to begin an unfair labor practice proceeding. It is not unlikely that this would add years to the already lengthy period required to gain relief from the Board. Congress cannot have intended to place such obstacles in the way of the Board’s effective enforcement of statutory duties. For in the labor field, as in few others, time is crucially important in obtaining relief. Amalgamated Clothing Workers v. Richman Bros. Co., 348 U. S. 511, 526 (dissenting opinion).

The legislative history of the Labor Act, the precedents interpreting it, and the interest of its efficient administration thus all lead to the conclusion that the Board had jurisdiction to deal with the unfair labor practice charge in this case. We hold that the Court of Appeals was in error in deciding to the contrary.

The remaining question, not reached by the Court of Appeals, is whether the Board was wrong in concluding that the contested provision in the collective agreement gave the respondent no unilateral right to institute its premium pay plan. In reaching this conclusion, the Board relied upon its experience with labor relations and the Act’s clear emphasis upon the protection of free collective bargaining. We cannot disapprove of the Board’s approach. For the law of labor agreements cannot be based upon abstract definitions unrelated to the context in which the parties bargained and the basic regulatory scheme underlying that context. See Cox, The Legal Nature of Collective Bargaining Agreements, 57 Mich. L. Rev. 1 (1958): Nor can we say that the Board was wrong in holding that the union had not forgone its statutory right to bargain about the pay plan inaugurated by the respondent. For the disputed contract provision referred to increases for “particular employee[s],” not groups of workers. And there was nothing in it to suggest that the carefully worked out wage differentials for various members of the glue spreader crew could be invalidated by the respondent’s decision to pay all members of the crew the same wage.

The judgment is accordingly reversed and the case is remanded to the Court of Appeals with directions to enforce the Board’s order.

Reversed and remanded.

       National Labor Relations Act, as amended, §§ 8 (a)(5) and (1), 61 Stat. 140-141, 29 U. S. C. §§ 158 (a)(5) and (1).

       The NLRB’s order directed respondent to bargain with the union upon the latter’s request and similarly to rescind any payment plan which it had unilaterally instituted.

       “Article XVII
      “B. It is mutually agreed that the attached classified wage scale shall be effective upon the signing of this Working Agreement with wages closed for the term of that agreement. . . .”

       “Article XIX
      “WAIVER OF DUTY TO BARGAIN
      “The parties acknowledge that during negotiations which resulted in this Agreement, each had the unlimited right and opportunity to make demands and proposals with respect to any subject or matter of collective bargaining, and that the understanding and agreements arrived at by the parties after the exercise of that right and opportunity are set forth in this Agreement. Therefore, the Employer and Union, for the life of this Agreement, each voluntarily and unqualifiedly waives the right and each agree that the other shall not be obligated to bargain collectively with respect to any subject matter not specifically referred to or covered in this Agreement, even though such subjects or matters may not have been within the knowledge or contemplation of either or both of the parties at the time they negotiated or signed this Agreement.”

       Workers in the three job classifications composing the glue spreader crews were to receive the following wages:
      Core Layer.:. $2.29/hour
      Core Feeder. $2.24/hour
      Sheet Turner. $2.15/hour

       The trial examiner found that “quite some time prior” to the execution of the contract, the respondent’s general manager had proposed an “incentive bonus system” within the department where the glue spreader crews worked. The union’s representative, however, declared that the union would not agree to such a plan. Sometime later in the negotiations, the respondent again made reference to the fact that it was “giving thought” to incentive pay, but the trial examiner was unable to conclude that this reference was related to the premium pay provision that eventually appeared in the contract.

       For illustrations of the limited discretion which the Labor Act allows employers concerning the wages of employees represented by certified unions, see Labor Board v. Katz, 369 U. S. 736; Labor Board v. Crompton-Highland Mills, Inc., 337 U. S. 217.

       § 301, Labor Management Relations Act, 1947, 61 Stat. 156, 29 U. S. C. § 185.

       The Court of Appeals in this case relied upon its previous decision in Square D Co. v. Labor Board, 332 F. 2d 360. But Square D involved a collective agreement that provided for arbitration. See Note, Use of an Arbitration Clause, 41 Ind. L. J. 455, 469 (1966).

       See also Cloverleaf Div. of Adams Dairy Co., 147 N. L. R. B. 1410, 1416 (1964), where the Board made the following observation to justify, in part, its decision to construe a labor contract in the course of an unfair labor practice proceeding:
      “. . .it affirmatively appears that neither party has even so much as sought to invoke arbitration. Nor is this a case involving an alleged unfair labor practice, the existence of which turns primarily on an interpretation of specific contractual provisions, unquestionably encompassed by the contract’s arbitration provisions, and coming to us in a context that makes it reasonably probable that arbitration settlement of the contract dispute would also put at rest the unfair labor practice controversy in a manner sufficient to effectuate the policies of the Act.” (Footnotes omitted.)
      Cf. Spielberg Mfg. Co., 112 N. L. R. B. 1080 (1955).

       An earlier version of the Senate bill contained the following provision:
      “Sec. 8. (a) It shall be an unfair labor practice for an employer- — •
      “(6) to violate the terms of a collective-bargaining agreement or the terms of an agreement to submit a labor dispute to arbitration . . . .” Section 8 (b) (5) of the same bill imposed a similar limitation upon labor organizations. S. 1126, 80th Cong., 1st Sess., 1 Legis. History of LMRA 109-111, 114. Neither of these provisions was in the bill enacted into law.

       § 301, Labor Management Relations Act, 1947, 61 Stat. 156, 29 U. S. C. § 185.

       Congress was also concerned with the possibility of conflicting decisions that would result from placing all questions of contract interpretation before both the Board and the courts. See 93 Cong. Rec. 4033, 2 Legis. History of LMRA 1043 (remarks of Senator Murray); 93 Cong. Rec. 6443, 2 Legis. History of LMRA 1539. But such a possibility does not arise in a case like the present one, since courts have no jurisdiction to enforce the union’s statutory rights under §§ 8 (a) (5) and (1).

       In Mastro Plastics Corp. v. Labor Board, 350 U. S. 270, the employer was charged with a violation of §§ 8 (a)(1), (2) and (3), and not with a failure to bargain. But nothing is suggested that would justify distinguishing the case on that ground.

       The precise nature of the union’s case in court is not readily apparent. If damages for breach of contract were sought, the union would have difficulty in establishing the amount of injury caused by respondent’s action. For the real injury in this case is to the union’s status as bargaining representative, and it would be difficult to translate such damage into dollars and cents. If an injunction were sought to vindicate the union’s contractual rights, the problem of the applicability of the Norris-LaGuardia Act would .have to be faced. A federal injunction issuing from a court with § 301 jurisdiction might be barred by § 7 of that Act. See International Union of Electrical Workers v. General Electric Co., 341 F. 2d 571 (C. A. 2d Cir.); Local No. 861 v. Stone & Webster Corp., 163 F. Supp. 894 (D. C. W. D. La.). Cf. Sinclair Refining Co. v. Atkinson, 370 U. S. 195; Publishers’ Assn. v. New York Mailers’ Union, 317 F. 2d 624 (C. A. 2d Cir.), cert. granted, 375 U. S. 901, judgment vacated in part for dismissal as moot, 376 U. S. 775. Whether a state injunction might be similarly barred in suits governed by federal labor law, Teamsters Local v. Lucas Flour Co., 369 U. S. 95, is an open question. See Charles Dowd Box Co. v. Courtney, 368 U. S. 502, 514, n. 8. Thus, it may be that the only remedy in court which would be available to the union would be a suit for a declaratory judgment, assuming such a suit in these circumstances would be maintainable under state or federal law.

       The instant charge, for example, was filed July 31, 1963.

       The respondent points to two other labor contracts in its area to support its version of the provision here in question, but those agreements, even if relevant, fall short of substantiating its position. In one, a premium was paid to members of two-man crews who accomplished prescribed production goals. But the respondent does not show that this premium leveled a wage differential set up by the collective bargaining agreement. In the other, a lumber company’s head sawyer received an hourly bonus if the plant exceeded a certain monthly output.


text:
    NATIONAL LABOR RELATIONS BOARD v. ACME INDUSTRIAL CO.
    No. 52.
    Argued November 14, 1966.
    Decided January 9, 1967.

      Norton J. Come argued the cause for petitioner. With him on the brief were Solicitor General Marshall, Arnold Ordman, Dominick L. Manoli and Nancy M. Sherman.

      E. Allan Kovar argued the cause and filed a brief for respondent.

      Joseph L. Rauh, Jr., John Silard, Stephen I. Schlossberg and Harriett R. Taylor filed a brief for Amalgamated Local Union No. 310, UAW, AFL-CIO, intervenor.
   Mr. Justice Stewart

delivered the opinion of the Court.

In NLRB v. C & C Plywood Corp., ante, p. 421, decided today, we dealt with one aspect of an employer’s duty to bargain during the term of a collective bargaining agreement. In this case we deal with another — involving the obligation to furnish information that allows a union to decide whether to process a grievance.

In April 1963, at the conclusion of a strike, the respondent entered into a collective bargaining agreement with the union which was the certified representative of its employees. The agreement contained two sections relevant to this case. Article I, § 3, provided, "It is the Company’s general policy not to subcontract work which is normally performed by employees in the bargaining unit where this will cause the layoff of employees or prevent the recall of employees who would normally perform this work . . . .” In Art. VI, § 10, the respondent agreed that “[i]n the event the equipment of the plant ... is hereafter moved to another location of the Company, employees working in the plant . . . who are subject to reduction in classification or layoff as a result thereof may transfer to the new location with full rights and seniority, unless there is then in existence at the new location a collective bargaining agreement covering . . . employees at such location.” A grievance procedure culminating in compulsory and binding arbitration was also incorporated into the collective agreement.

The present controversy began in January 1964, when the union discovered that certain machinery was being removed from the respondent’s plant. When asked by union representatives about this movement, the respondent’s foremen replied that there had been no violation of the collective agreement and that the company, therefore, was not obliged to answer any questions regarding the machinery. After this rebuff, the union filed 11 grievances charging the respondent with violations of the above quoted clauses of the collective agreement. The president of the union then wrote a letter to the respondent, requesting “the following information at the earliest possible date:

“1. The approximate dates when each piece of equipment was moved out of the plant.
“2. The place to which each piece of equipment was moved and whether such place is a facility which is operated or controlled by the Company.
“3. The number of machines or equipment that was moved out of the plant.
“4. What was the reason or purpose of moving the equipment out of the plant.
“5. Is. this equipment used for production elsewhere.”

The company replied by letter that it had no duty to furnish this information since no layoffs or reductions in job classification had occurred within five days (the time limitation set by the contract for filing grievances) prior to the union’s formal request for information.

This refusal prompted the union to file unfair labor practice charges with the National Labor Relations Board. A complaint was issued, and the Board, overruling its trial examiner, held the respondent had violated §8 (a)(5) of the Act by refusing to bargain in good faith. Accordingly, it issued a cease-and-desist order. The Board found that the information requested was “necessary in order to enable the Union to evaluate intelligently the grievances filed” and pointed out that the agreement contained no “clause by which the Union waives its statutory right to such information.”

The Court of Appeals for the Seventh Circuit refused to enforce the Board’s order. 351 P. 2d 258. It did not question the relevance of the information nor the finding that the union had not expressly waived its right to the information. The court ruled, however, that the existence of a provision for binding arbitration of differences concerning the meaning and application of the agreement foreclosed the Board from exercising its statutory power. The court cited United Steelworkers v. Warrior & Gulf Co., 363 U. S. 574, and United Steelworkers v. American Mfg. Co., 363 U. S. 564, as articulating a national labor policy favoring arbitration and requiring the Board’s deference to an arbitrator when construction and application of a labor agreement are in issue. We granted certiorari to consider the substantial question of federal labor law thus presented. 383 U. S. 905.

There can be no question of the general obligation of an employer to provide information that is needed by the bargaining representative for the proper performance of its duties. Labor Board v. Truitt Mfg. Co., 351 U. S. 149. Similarly, the duty to bargain unquestionably extends beyond the period of contract negotiations and applies to labor-management relations during the term of an agreement. NLRB v. C & C Plywood Corp., ante, p. 421; Labor Board v. F. W. Woolworth Co., 352 U. S. 938. The only real issue in this case, therefore, is whether the Board must await an arbitrator’s determination of the relevancy of the requested information before it can enforce the union’s statutory rights under § 8 (a)(5).

The two cases upon which the court below relied, and the third of the Steelworkers trilogy, United Steelworkers v. Enterprise Wheel & Car Corp., 363 U. S. 593, do not throw much light on the problem. For those cases dealt with the relationship of courts to arbitrators when an arbitration award is under review or when the employer’s agreement to arbitrate is in question. The weighing of the arbitrator’s greater institutional competency, which was so vital to those decisions, must be evaluated in that context. 363 U. S., at 567, 581-582, 596-597. The relationship of the Board to the arbitration process is of a quite different order. See Carey v. Westinghouse Corp., 375 U. S. 261, 269-272. Moreover, in assessing the Board’s power to deal with unfair labor practices, provisions of the Labor Act which do not apply to the power of the courts under § 301, must be considered. Section 8 (a)(5) proscribes failure to bargain collectively in only the most general terms, but § 8 (d) amplifies it by defining “to bargain collectively” as including “the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to . . . any question arising [under an agreement] . And § 10 (a) provides: “The Board is empowered ... to prevent any person from engaging in any unfair labor practice .... This power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise . . . .” Thus, to view the Steelworkers decisions as automatically requiring the Board in this case to defer to the primary determination of an arbitrator is to overlook important distinctions between those cases and this one.

But even if the policy of the Steelworkers Cases were thought to apply with the same vigor to the Board as to the courts, that policy would not require the Board to abstain here. For when it ordered the employer to furnish the requested information to the union, the Board was not making a binding construction of the labor contract. It was only acting upon the probability that the desired information was relevant, and that it would be of use to the union in carrying out its statutory duties and responsibilities. This discovery-type standard decided nothing about the merits of the union’s contractual claims. When the respondent furnishes the requested information, it may appear that no subcontracting or work transfer has occurred, and, accordingly, that the grievances filed are without merit. On the other hand, even if it appears that such activities have taken place, an arbitrator might uphold the respondent’s contention that no breach of the agreement occurred because no employees were laid off or reduced in grade within five days prior to the filing of any grievance. Such conclusions would clearly not be precluded by the Board’s threshold determination concerning the potential relevance of the requested information. Thus, the assertion of jurisdiction by the Board in this case in no way threatens the power which the parties have given the arbitrator to make binding interpretations of the labor agreement.

Far from intruding upon the preserve of the arbitrator, the Board’s action was in aid of the arbitral process. Arbitration can function properly only if the grievance procedures leading to it can sift out unmeritorious claims. For if all claims originally initiated as grievances had to be processed through to arbitration, the system would be woefully overburdened. Yet, that is precisely what the respondent’s restrictive view would require. It would force the union to take a grievance all the way through to arbitration without providing the opportunity to evaluate the merits of the claim. The expense of arbitration might be placed upon the union only for it to learn that the machines had been relegated to the junk heap. Nothing in federal labor law requires such a result.

We hold that the Board’s order in this case was consistent both with the express terms of the Labor Act and with the national labor policy favoring arbitration which our decisions have discerned as underlying that law. Accordingly, we reverse the judgment and remand the case to the Court of Appeals with directions to enforce the Board’s order.

Reversed and remanded.

       National Labor Relations Act, as amended, 61 Stat. 141, 29 U. S. C. §158 (a)(5).

       Labor Management Relations Act, 1947, 61 Stat. 156, 29 U. S. C. §185.

       Cf. United Steelworkers v. Warrior & Gulf Co., 363 U. S. 574, 581: “The grievance procedure is, in other words, a part of the continuous collective bargaining process.”

       61 Stat. 146, 29 U. S. C. § 160 (a).

       See Sinclair Refining Co. v. N. L. R. B., 306 F. 2d 569, 570 (C. A. 5th Cir.).

       Cf. 4 Moore, Federal Practice ¶ 26.16[1], 1175-1176 (2d ed.):
      “[I]t must be borne in mind that the standard for determining relevancy at a discovery examination is not as well defined as at the trial. . . . Since the matters in dispute between the parties are not as well determined at discovery examinations as at the trial, courts of necessity must follow a more liberal standard as to relevancy.”

        Id., at 1181:
      “Examination as to relevant matters should be allowed whether or not the theory of the complaint is sound or the facts, if proved, would support the relief sought.”

       This ease, therefore, differs from NLRB v. C & C Plywood Corp., ante, p. 421, where the Board’s determination that the employer did not have a contractual right to institute a premium pay plan was a determination on the merits. See C & C Plywood, ante, at 426, and n. 10.

       See Fafnir Bearing Co. v. N. L. R. B., 362 F. 2d 716, 721:
      “By preventing the Union from conducting these studies [for an intelligent appraisal of its right to grieve], the Company was, in essence, requiring it to play a game of blind man’s bluff.”


author: Mr. Justice White Mr. Justice Harlan,

text:
    SWANN et al. v. ADAMS, SECRETARY OF STATE OF FLORIDA, et al.
    No. 136.
    Argued December 6, 1966.
    Decided January 9, 1967.

      D. P. S. Paul argued the cause for appellants. With him on the briefs were P. D. Thomson, Neal Rutledge, Richard F. Wolf son, Thomas C. Britton and Stuart Simon.

      Earl Faircloth, Attorney General of Florida, argued the cause for appellees. With him on the brief for appellees Adams et al. were Edward D. Cowart, W. E. Bishop, Jr., and Robert A. Chastain, Assistant Attorneys General. On the brief for appellee Freeman were Leo L. Foster and John A. Madigan, Jr.

      David Popper, Stewart D. Allen and John M. Dyer filed a brief for Davis et al., as amici curiae.

   Mr. Justice White

delivered the opinion of the Court.

This case presents still another development in the efforts of the State of Florida to apportion its legislature in accordance with the requirements of the Federal Constitution. There have been previous chapters in this story. The litigation began in 1962. On June 22, 1964, in Swann v. Adams, 378 U. S. 553, we reversed the judgment of the three-judge District Court upholding the then-current legislative apportionment in Florida and remanded the case for further proceedings, consistent with the Court’s opinion in Reynolds v. Sims, 377 U. S. 533, and its companion cases. The District Court then deferred further action until the conclusion of the legislative session which convened on April 6, 1965. The legislature proceeded to reapportion the State on June 29, 1965. The District Court forthwith held the new plan failed to meet the requirements of the Fourteenth Amendment but approved the plan on an interim basis, limiting it to the period ending 60 days after the adjournment of the 1967 session of the Florida Legislature. This Court, finding no warrant for perpetuating what all conceded was an unconstitutional apportionment for another three years, reversed the judgment and-remanded the case to the District Court so that a valid reapportionment plan would be made effective for the 1966 elections. Swann v. Adams, 383 U. S. 210. The Florida Legislature again acted on the matter in March 1966 by adopting still another reapportionment plan which the appellants promptly attacked in the District Court.

The new plan provides for 48 senators and 117 representatives, and includes what in effect are multimember districts for each house. The senate districts range from 87,595 to 114,053 in population per senator, or from 15.09% overrepresented to 10.56% underrepresented. The ratio between the largest and the smallest district is thus 1.30 to 1. The deviation from the average population per senator is greater than 15% in one senatorial district, is greater than 14% in five more districts and is more than 10% in still six other districts. Approximately 25% of the State’s population living in one quarter of the total number of senatorial districts is underrepresented or overrepresented by at least 10%. The minimum percentage of persons that could elect a majority of 25 senators is 48.38%.

In the house the population per representative ranges from 34,584 to 48,785 or from 18.28% overrepresented to 15.27% underrepresented. The ratio between the largest and the smallest representative district is 1.41 to 1. Two districts vary from the norm by more than 18% and another by more than 15%, these three districts having seven of the 117 representatives. Ten other districts with 22 representatives vary from the norm by more than 10%. There is thus a deviation of more than 10% in districts which elect 29 of the 117 representatives; 24.35% of the State’s population lives in these districts. The'minimum percentage of persons that could elect a majority of 59 representatives is 47.79%.

The District Court recognized that “apportionment must be substantially on a population basis” but that “ [m] athematical exactness or precision is not required.” It went on to hold “[s]uch departures as there are from the ideal are not sufficient in number or great enough in percentages to require an upsetting of the legislative plan. . . . [WJhat deviation there is does not discriminate to any great extent against any section of the state or against either rural or urban interests.” 258 F. Supp. 819, 826, 827. Accordingly, the plan was held constitutional.

The State would have us dismiss this case for lack of standing on the part of appellants to maintain this appeal because appellants are from Dade County, Florida, which appellants concede has received constitutional treatment under the legislative plan. Appellants, however, had before the District Court their own plan which would have accorded different treatment to Dade County in some respects as compared with the legislative plan, and the alternative plan was rejected by the District Court. Moreover, the District Court has apparently consistently denied intervention to other plaintiffs, seemingly treating the appellants as representing other citizens in the State. The challenge to standing cannot succeed.

We reverse for the failure of the State to present or the District Court to articulate acceptable reasons for the variations among the populations of the various legislative districts with respect to both the senate and house of representatives. Reynolds v. Sims, supra, recognized that mathematical exactness is not required in state apportionment plans. De minimis deviations are unavoidable, but variations of 30% among senate districts and 40% among house districts can hardly be deemed de minimis and none of our cases suggests that differences of this magnitude will be approved, without a satisfactory explanation grounded on acceptable state policy. On the contrary, the Reynolds opinion limited the allowable deviations to those minor variations which “are based on legitimate considerations incident to the effectuation of a rational state policy.” 377 U. S. 533, 579. Thus that opinion went on to indicate that variations from a pure population standard might be justified by such state policy considerations as the integrity of political subdivisions, the maintenance of compactness and contiguity in legislative districts or the recognition of natural or historical boundary lines. Likewise, in Roman v. Sincock, 377 U. S. 695, 710, the Court stated that the Constitution permits “such minor deviations only as may occur in recognizing certain factors that are free from any taint of arbitrariness or discrimination.”

The State relies on Forty-fourth General Assembly of Colorado v. Lucas, 379 U. S. 693; Burnette v. Davis, 382 U. S. 42; and Harrison v. Schaefer, 383 U. S. 269, which were per curiam affirmances of lower court judgments in reapportionment cases. The State suggests that the plans approved in those cases involved variations in magnitude equal to or greater than those revealed by the Florida apportionment, and for that reason the judgment here should be affirmed. But in none of these cases was the issue of the validity of the differences in population between various legislative districts either raised or ruled upon in this Court. There was no occasion to explore whether or not there was ample justification for the challenged variations. And in Lucas v. Forty-fourth General Assembly of Colorado, 377 U. S. 713, 727, 734-735, the Court expressly reserved decision upon the validity of a variance ratio of 1.7 to 1. In any event, the fact that a 10%' or 15% variation from the norm is approved in one State has little bearing on the validity of a similar variation in another State. “What is marginally permissible in one State may be unsatisfactory in another, depending upon the particular circumstances of the case.” Reynolds v. Sims, 377 U. S. 533, 578.

As this case comes to us we have no alternative but to reverse. The District Court made no attempt to explain or justify the many variations among the legislative districts. As for the State, all it suggested in either the lower court or here is that its plan comes as close as “practical” to complete population equality and that the State was attempting to follow congressional district lines. There was, however, no attempt to justify any particular deviations, even the larger ones, with respect to either of these considerations. Moreover, the State’s brief states only that the legislature followed “in most instances” the congressional boundaries, and with respect to “practicality” it seems quite obvious that the State could have come much closer to providing districts of equal population than it did. The appellants themselves placed before the court their own plan which revealed much smaller variations between the districts than did the plan approved by the District Court. Furthermore, appellants suggested to the District Court specific amendments to the legislative plan which, if they had been accepted, would have measurably reduced the population differences between many of the districts. Appellants’ own plan and their suggested amendments to the legislative plan might have been infirm in other respects but they do demonstrate that a closer approximation to equally populated districts was a feasible undertaking. The State, with admirable candor, states that it offered no evidence in the District Court to explain the challenged variations with respect to either the house or the senate. In its view, however, the plan should be approved on the record as it is.

We think the better view is that taken by the three-judge court in Maryland. which disapproved a legislative plan involving an overrepresentation of 14.90% and an underrepresentation of 14.38% because, as Judge Sobeloff said, there was “no showing in this case that the difference of one-third is unavoidable or justified upon any legally acceptable ground.” Maryland Citizens Committee for Fair Congressional Redistricting, Inc. v. Tawes, 253 F. Supp. 731, 733. Compare League of Nebraska Municipalities v. Marsh, 242 F. Supp. 357, disapproving a ratio of 1.6 to 1 between the smallest and the largest district absent satisfactory explanation by the State, and Paulson v. Meier, 246 F. Supp. 36, which found a ratio between the smallest and largest district of 1.39 to 1 to be unjustified on the basis offered by the State.

The appellants complain of other aspects of the plan besides unequally populated legislative districts. Under the new statute three senators were not required to run for election in 1966 but were allowed to finish their present terms expiring in 1968. These three senators, as the District Court noted, were elected in districts that are identical in territory to their districts under the legislative plan. Also, one senate and six house seats were subject to residency requirements. The District Court found no invidious discrimination in these aspects of the plan. Appellants also claim that the legislative plan discriminates invidiously by underrepresenting the populous urban counties and by overrepresenting the sparsely settled rural counties in both houses. The court below found that “what deviation there is does not discriminate to any great extent against any section of the state or against either rural or urban interests.” 258 F. Supp. 819, 827. In the light of our disposition of this case, however, we need not reach and decide any of these additional issues, although we note that Reynolds v. Sims indicates the constitutional impropriety of maintaining deviations from the equal population principle in deference to area and economic or other group interests. 377 U. S. 533, 579-580.

Reversed.

Mr. Justice Harlan,

whom Mr. Justice Stewart joins,

dissenting.

Reynolds v. Sims, 377 U. S. 533, laid down a “one man, one vote” mandate for the structuring of all state legislatures, but the Court there recognized, as it does again today, that “mathematical exactness ... is not required,” ante, at 443, and that variations are acceptable if they “are based on legitimate considerations incident to the effectuation of a rational state policy . . . .” 377 U. S., at 579, cited, ante, at 444. The Court refuses, however, to accept Florida’s present legislative apportionment plan, at least on the record before us, because neither the State nor the District Court justified the relatively minor variations in population among some of the districts.

This holding seems to me to stand on its head the usual rule governing this Court’s approach to the validity of legislative enactments; state as well as federal, which is, of course, that they come to us with a strong presumption of regularity and constitutionality. See, e. g., Butler v. Pennsylvania, 10 How. 402; Davis v. Department of Labor, 317 U. S. 249; Flemming v. Nestor, 363 U. S. 603. Accordingly, I do not believe the burden is on the State to justify every aspect of .a complex plan completely restructuring its legislature, on pain of its being declared constitutionally invalid by the judiciary. I can think of no other area of law in which there is an analogous presumption of invalidity attaching to a legislative enactment of a State in an area of its admitted competence and superior experience. The burden of showing unconstitutionality should be left here, as in other cases, on the attacking party.

I would affirm the judgment of the District Court on the grounds (1) that the plan enacted by the Florida Legislature is in substantial compliance with the rule of Reynolds v. Sims, supra, and (2) that the appellants have not shown any invidious purpose for, or effect flowing from, the mathematical variations among certain districts.


author: Per Curiam.

text:
    IN RE MEEKER.
    No. 704.
    Decided January 9, 1967.
    Appellant pro se.

      Ross L. Malone for the Board of Bar Commissioners of the New Mexico State Bar, appellee.
   Per Curiam.

The motion to dispense with printing the jurisdictional statement is granted. The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    GARCIA et al. v. MORALES.
    No. 735.
    Decided January 9, 1967.

      Edward B. Meredith for appellants.

      Arthur J. Sills, Attorney General of New Jersey, Alan B. Handler, First Assistant Attorney General, and Richard. Newman, Deputy Attorney General, for intervenor-appellee, State of New Jersey, Unsatisfied Claim and Judgment Fund.
   Per Curiam.

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


text:
    KIRKPATRICK, SECRETARY OF STATE OF MISSOURI, et al. v. PREISLER et al.
    No. 738.
    Decided January 9, 1967.

      Norman H. Anderson, Attorney General of Missouri, and J. Gordon Siddens and Thomas J. Downey, Assistant Attorneys General, for appellants.

      Paul W. Preisler, pro se, and for other appellees.
   Per Curiam.

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

Mr. Justice Harlan and Mr. Justice Stewart are of the opinion that probable jurisdiction should be noted and the case set for oral argument.


text:
    NAVE v. CITY OF SEATTLE.
    No. 767.
    Decided January 9, 1967.
    Appellant pro se.

      A. L. Newbould for appellee.
   Per Curiam.

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


text:
    GLOUNER et al. v. SUPERIOR COURT OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES.
    No. 756.
    Decided January 9, 1967.

      Hyman Goldman for appellants.

      R. B. Regram, W. H. Peterson and Jack M. Miller for the State of California, real party in interest.
   Per Curiam.

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


text:
    BOGART v. TRAYNOR, CHIEF JUSTICE OF CALIFORNIA, et al.
    No. 767,
    Misc.
    Decided January 9, 1967.
    Appellant pro se.

      Warren M. Christopher for appellee State Bar of California.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied. The request for other relief is also denied.


text:
    WEBSTER v. LEE COUNTY DISTRICT COURT.
    No. 31,
    Misc.
    Decided January 9, 1967.
    Petitioner pro se.

      Lawrence F. Scalise, Attorney General of Iowa, and Don R. Bennett, Assistant Attorney General, for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted.

The judgment is vacated and the case is remanded to the Supreme Court of Iowa for further consideration in light of Long v. District Court of Iowa in and for Lee County, ante, p. 192.


text:
    HUNTER v. NEW YORK.
    No. 917,
    Misc.
    Decided January 9, 1967.
   Per Curiam.

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


text:
    ROOSEVELT RACEWAY, INC. v. COUNTY OF NASSAU et al.
    No. 732.
    Decided January 9, 1967.

      George Morton Levy for appellant.

      Morris H. Schneider for the County of Nassau et al.; Louis J. Lejkowitz, Attorney General of New York, pro se, and Daniel M. Cohen, Assistant Attorney General, for the Attorney General of New York, appellees.
   Per Curiam.

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

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


text:
    NEHRING v. CITY OF DeKALB et al.
    No. 758.
    Decided January 9, 1967.
   Per Curiam.

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


text:
    FEDERATED DEPARTMENT STORES, INC. v. GEROSA, COMPTROLLER OF THE CITY OF NEW YORK.
    No. 171.
    Decided January 9, 1967.

      Wilbur H. Friedman and George G. Gallantz for appellant.

      J. Lee Rankin for appellee.
   Per Curiam.

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

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


text:
    DUDDLESTON et al. v. GRILLS et al.
    No. 370.
    Decided January 9, 1967.

      Benjamin G. Cox and Buena Chaney for appellants.

      John J. Dillon, Attorney General of Indiana, for appellees Branigin et al.
   Per Curiam.

The judgment is vacated and the case is remanded to the District Court for further consideration in light of Swann v. Adams, ante, p. 440, Wesberry v. Sanders, 376 U. S. 1, and Reynolds v. Sims, 377 U. S. 533.

Mr. Justice Harlan and Mr. Justice Stewart are of the opinion that the judgment should be affirmed.


text:
    DROSTE v. KERNER, GOVERNOR OF ILLINOIS, et al.
    No. 671.
    Decided January 9, 1967.

      Calvin'P. Sawyier for appellant.

      William C. Clark, Attorney General of Illinois, and Richard A. Michael, Assistant Attorney General, for ap-pellees Kerner et al. Henry L. Pitts for appellee United States Steel Corp.
   Per Curiam.

The motions to dismiss are granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    ILLINOIS CENTRAL RAILROAD CO. v. UNITED STATES et al.
    No. 687.
    Decided January 9, 1967.

      Hugh B. Cox, William H. Allen, Robert Mitten and William J. O’Brien, Jr., for appellant in No. 687. Nuel D. Belnap, Richard M. Freeman and Daniel J. Sweeney for appellant in No. 688. John B. Goodrich for appellant in No. 689.

      Solicitor General Marshall, Assistant Attorney General Turner, Howard E. Shapiro, Robert W. Ginnane and Fritz R. Kahn for the United States et al.; James W. Hoeland, W. L. Grubbs and Joseph L. Lenihan for Louisville & Nashville Railroad Co.; W. McNeil Kennedy for Chicago & Eastern Illinois Railroad Co.; Albert E. Jenner, Jr., Samuel W. Block, Thomas P. Sullivan and John C. Tucker for Missouri Pacific Railroad Co., and Leon Leighton, pro se, appellees in all cases.

      Together with No. 688, St. Louis Southwestern Railway Co. v. United States et al., and No. 689, Monon Railroad v. United States et al., also on appeal from the same court.

   Per Curiam.

The motions to affirm are granted and the judgment is affirmed.

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


author: Mr. Justice Harlan

text:
    LASSEN, COMMISSIONER, STATE LAND DEPARTMENT v. ARIZONA ex rel. ARIZONA HIGHWAY DEPARTMENT.
    No. 84.
    Argued November 16, 1966.
    Decided January 10, 1967.

      John P. Frank argued the cause for petitioner. With him on the briefs were Darrell F. Smith, Attorney General of Arizona, by Dale R. Shumway and Dix W. Price.

      Rex E. Lee argued the cause for respondent. With him on the brief were Darrell F. Smith, Attorney General of Arizona, by John T. Amey, Assistant Attorney General, and /. A. Riggins, Jr.

      Assistant Attorney General Weisl, by special leave of Court, argued the cause for the United States, as amicus curiae, urging reversal. With him on the brief were Solicitor General Marshall and Richard A. Posner.

      John J. O’Connell, Attorney General, and Harold T. Hartinger, Assistant Attorney General, filed a brief for the State of Washington, as amicus curiae, urging reversal.

      John J. O’Connell, Attorney General of Washington, and John R. Miller, Assistant Attorney General, filed a brief for the Washington Parks and Recreation Commission, as amicus curiae, urging affirmance.
   Mr. Justice Harlan

delivered the opinion of the Court.

This action was brought as an original proceeding in the Supreme Court of Arizona by the State on the relation of its Highway Department. The Department seeks to prohibit the application by the State Land Commissioner of rules governing the acquisition of rights of way and material sites in federally donated lands held in trust by the State. The Commissioner’s rules provide in pertinent part that “Rights of Way and Material Sites may be granted ... for an indefinite period . . . after full payment of the appraised value . . . has been made to the State Land Department. The appraised value . . . shall be determined in accordance with the principles established in A. R. S. 12-1122.” Rule 12. The Supreme Court of Arizona held that it may be conclusively presumed that highways constructed across trust lands always enhance the value of the remaining trust lands in amounts at least equal to the value of the areas taken. It therefore ordered the Commissioner to grant without actual compensation material sites and rights of way upon trust lands. 99 Ariz. 161, 407 P. 2d 747.

The lands at issue here are among some 10,790,000 acres granted by the United States to Arizona in trust for the use and benefit of designated public activities within the State. The Federal Government since the Northwest Ordinance of 1787 has made such grants to States newly admitted to the Union. Although the terms of these grants differ, at least the most recent commonly make clear that the United States has a continuing interest in the administration of both the lands and the funds which derive from them. The grant involved here thus expressly requires the Attorney General of the United States to maintain whatever proceedings may be necessary to enforce its terms. We brought this case here because of the importance of the issues presented both to the United States and to the States which have received such lands. 384 U. S. 926.

The issues here stem chiefly from ambiguities in the grant itself. The terms under which the United States provided these lands were included in the New Mexico-Arizona Enabling Act. 36 Stat. 557. The Act describes with particularity the disposition Arizona may make of the lands and of the funds derived from them, but it does not directly refer to the conditions or consequences of the use by the State itself of the trust lands for purposes not designated in the grant. Of the issues which may arise from the Act’s silence, we need now reach only two: first, whether Arizona is permitted to obtain trust lands for such uses without first satisfying the Act’s restrictions on disposition of the land; and second, what standard of compensation Arizona must employ to recompense the trust for the land it uses. Both issues require consideration of the Act’s language and history.

I.

We turn first to the question of the method by which Arizona may obtain trust lands for purposes not included in the grant. The constraints imposed by the Act upon the methods by which trust lands may be transferred are few and simple. Section 28, which is reproduced in the Appendix to this opinion, requires, with exceptions inapplicable here, that lands be sold or leased only to “the highest and best bidder at a public auction to be held at the county seat of the county wherein the lands . . . shall lie . . . .” The section prescribes the terms, form and frequency of the notice which must be given of the auction. It requires that no lands be sold for a price less than their appraised value. The Act imposes two sanctions upon transactions which fail to satisfy its requirements. First, § 28 provides broadly that trust lands must be “disposed of in whole or in part only in manner as herein provided . . . It adds that “Disposition of any of said lands ... in any manner contrary to the provisions of this Act, shall be deemed a breach of trust.” Finally, it provides that “Every sale, lease, conveyance, or contract of or concerning any of the lands hereby granted or confirmed . . . not made in substantial conformity with the provisions of this Act shall be null and void . . .

The parties urge, and the state court assumed, that Arizona need not follow these procedures when it seeks material sites and rights of way upon trust lands. The Commissioner’s rules thus do not require an auction or other public sale. This view has been taken by other state courts construing similar grants. Ross v. Trustees of University of Wyoming, 30 Wyo. 433; 222 P. 3, State v. Walker, 61 N. M. 374, 301 P. 2d 317. We have concluded, for the reasons which follow, that the restrictions of the Act are inapplicable to acquisitions by the State for its highway program.

The Act’s silence obliges us to examine its purposes, as evidenced by its terms and its legislative history, to determine whether these restrictions should be imposed here. The grant was plainly expected to produce a fund, accumulated by sale and use of the trust lands, with which the State could support the public institutions designated by the Act. It was not supposed that Arizona would retain all the lands given it for actual use by the beneficiaries; the lands were obviously too extensive and too often inappropriate for the selected purposes. Congress could scarcely have expected, for example, that many of the 8,000,000 acres of its grant “for the support of the common schools,” all chosen without regard to topography or school needs, would be employed as building sites. It intended instead that Arizona would use the general powers of sale and lease given it by the Act to accumulate funds with which it could support its schools.

The central problem which confronted the Act’s draftsmen was therefore to devise constraints which would assure that the trust received in full fair compensation for trust lands. The method of transfer and the transferee were material only so far as necessary to assure that the trust sought and obtained appropriate compensation. This is confirmed by the legislative history of the Enabling Act. All the restrictions on the use and disposition of the trust lands, including those on the powers of sale and lease, were first inserted by the Senate Committee on the Territories. Senator Bev-eridge, the committee’s chairman, made clear on the floor of the Senate that the committee’s determination to require the restrictions sprang from its fear that the trust would be exploited for private advantage. He emphasized that the committee was influenced chiefly by the repeated violations of a similar grant made to New Mexico in 1898. The violations had there allegedly consisted of private sales at unreasonably low prices, and the committee evidently hoped to prevent such depredations here by requiring public notice and sale. The restrictions were thus intended to guarantee, by preventing particular abuses through the prohibition of specific practices, that the trust received appropriate compensation for trust lands. We see no need to read the Act to impose these restrictions on transfers in which the abuses they were intended to prevent are not likely to occur, and in which the trust may in another and more effective fashion be assured full compensation.

Further, we should not fail to recognize that, were we to require Arizona to follow precisely these procedures, we would sanction an empty formality. There would not often be others to bid for the material sites and rights of way which the State might seek. More important, even if such bidders appeared and proved successful, nothing in the grant would prevent Arizona from thereafter condemning the land which it had failed to purchase; the anticipation of condemnation would leave the auction without any real significance. We cannot see that the trust would materially benefit from this circuity.

We conclude that it is consonant with the Act’s essential purposes to exclude from the restrictions in question the transactions at issue here. The trust will be protected, and its purposes entirely satisfied, if the State is required to provide full compensation for the land it uses. We hold, therefore, that Arizona need not offer public notice or conduct a public sale when it seeks trust lands for its highway program. The State may instead employ the procedures established by the Commissioner’s rules, or any other procedures reasonably calculated to assure the integrity of the trust and to prevent misapplication of its lands and funds.

II.

The second issue here is the standard of compensation which Arizona must employ to recompense the trust for the land it acquires. The Land Commissioner’s rules provide simply that the State must pay the appraised value, as measured by the State’s condemnation statute, of the right of way or material site. The Highway Department urges, and the Arizona Supreme Court held, that nothing need ever be actually paid since it may be conclusively presumed that all highways enhance the value of the remaining trust lands in amounts at least equal to the value of the lands which were taken. The United States, as amicus curiae, suggests that the Highway Department be obliged to pay the land’s appraised value, but that it be permitted to reduce that sum by the amount of any enhancement shown in the value of the remaining trust lands. The rule urged by the United States differs from that adopted by the state court only in that the United States would not permit the Highway Department to presume enhancement, but would instead require that it be established by the Department in each instance with reasonable certainty and precision. Under this rule, enhancement would have to be individually proved and computed for small tracts of land checkered over the entire State.

We are urged by the United States to determine only the validity of the rule of law stated by the Arizona Supreme Court, and to defer the broader question of whether enhancement may ever be permitted to diminish the actual compensation payable to the trust. The United States emphasizes that the broader issue does not directly arise under the Commissioner’s rules, since the Arizona condemnation statute incorporated by those rules does not permit benefits to reduce the compensation payable for the condemned land’s fair market value. We are unable to take so narrow a view. The rule adopted by the state court clearly stemmed from, and depended upon, the premise that enhancement may be balanced against the value of the trust lands taken by the State. If we severed the conclusion from its premise, we would halt short of a full adjudication of the validity of the Commissioner’s rules, and unnecessarily prolong the litigation of this important question. We have therefore reached the broader issue, and have concluded that the terms and purposes of the grant do not permit Arizona to diminish the actual compensation, meaning thereby monetary compensation, payable to the trust by the amount of any enhancement in the value of the remaining trust lands.

The Enabling Act unequivocally demands both that the trust receive the full value of any lands transferred from it and that any funds received be employed only for the purposes for which the land was given. First, it requires that before trust lands or their products are offered for sale they must be “appraised at their true value,” and that “no sale or other disposal . . . shall be made for a consideration less than the value so ascertained . . . The Act originally provided in addition that trust lands should not be sold for a price less than a statutory minimum. Second, it imposes a series of careful restrictions upon the use of trust funds. As this Court has noted, the Act contains “a specific enumeration of the purposes for which the lands were granted and the enumeration is necessarily exclusive of any other purpose.” Ervien v. United States, 251 U. S. 41, 47. The Act thus specifically forbids the use of “money or thing of value directly or indirectly derived” from trust lands for any purposes other than those for which that parcel of land was granted. It requires the creation of separate trust accounts for each of the designated beneficiaries, prohibits the transfer of funds among the accounts, and directs with great precision their administration. “Words more clearly designed ... to create definite and specific trusts and to make them in all respects separate and independent of each other could hardly have been chosen.” United States v. Ervien, 246 P. 277, 279. All these restrictions in combination indicate Congress’ concern both that the grants provide the most substantial support possible to the beneficiaries and that only those beneficiaries profit from the trust.

This is confirmed by the background and legislative history of the Enabling Act. The restrictions placed upon land grants to the States became steadily more rigid and specific in the 50 years prior to this Act, as Congress sought to require prudent management and thereby to preserve the usefulness of the grants for their intended purposes. The Senate Committee on the Territories, with the assistance of the Department of Justice, adopted for the New Mexico-Arizona Act the most satisfactory of the restrictions contained in the earlier grants. Its premise was that the grants cannot “be too carefully safeguarded for the purpose for which they are appropriated.” Senator Beveridge described the restrictions as “quite the most important item” in the Enabling Act, and emphasized that his committee believed that “we were giving the lands to the States for specific purposes, and that restrictions should be thrown about it which would assure its being used for those purposes.”

Nothing in these restrictions is explicitly addressed to acquisitions by the State for its other public activities; the Enabling Act is, as we have noted, entirely silent on these questions. We must nevertheless conclude that the purposes of Congress require that the Act’s designated beneficiaries “derive the full benefit” of the grant. The conclusive presumption of enhancement which the Arizona Supreme Court found does not in our view adequately assure fulfillment of that purpose, particularly in the context of lands that are as variegated and far-flung as those comprised in this grant. And we think that the more particularized showing of enhancement advocated by the United States, resting as it largely would upon the forecasts of experts which by nature are subject to the imponderables and hazards of the future, also falls short of assuring accomplishment of the basic intendment of Congress. Acceptance of either of these courses for reimbursing the trust in these circumstances might well result in diminishing the benefits conferred by Congress and in effect deflecting a portion of them to the State’s highway program.

We hold therefore that Arizona must actually compensate the trust in money for the full appraised value of any material sites or rights of way which it obtains on or over trust lands. This standard most nearly reproduces the results of the auction prescribed by the

Act, and most consistently reflects the essential purposes of the grant.

The judgment of the Supreme Court of Arizona is accordingly reversed and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

APPENDIX TO OPINION OF THE COURT.

Section 28 of New Mexico-Arizona Enabling Act, as Amended.

Sec. 28. That it is hereby declared that all lands hereby granted, including those which, having been heretofore granted to the said Territory, are hereby expressly transferred and confirmed to the said State, shall be by the said State held in trust, to be disposed of in whole or in part only in manner as herein provided and for the several objects specified in the respective granting and confirmatory provisions, and that the natural products and money proceeds of any of said lands shall be subject to the same trusts as the lands producing the same.

Disposition of any of said lands, or of any money or thing of value directly or indirectly derived therefrom, for any object other than for which such particular lands, or the lands from which such money or thing of value shall have been derived, were granted or confirmed, or in any manner contrary to the provisions of this Act, shall be deemed a breach of trust.

No mortgage or other encumbrance of the said lands, or any part thereof, shall be valid in favor of any person or for any purpose or under any circumstances whatsoever. Said lands shall not be sold or leased, in whole or in part, , except to the highest and best bidder at a public auction to be held at the county seat of the county wherein the lands to be affected, or the major portion thereof, shall lie, notice of which public auction shall first have been duly given by advertisement, which shall set forth the nature, time, and place of the transaction to be had, with a full description of the lands to be offered, and be published once each week for not less than ten successive weeks in a newspaper of general circulation published regularly at the State capital, and in that newspaper of like circulation which shall then be regularly published nearest to the location of the lands so offered; nor shall any sale or contract for the sale of any timber or other natural product of such lands be made, save at the place, in the manner, and after the notice by publication provided for sales and leases of the lands themselves. Nothing herein contained shall prevent: (1) the leasing of any of the lands referred to in this section, in such manner as the Legislature of the State of Arizona may prescribe, for grazing, agricultural, commercial, and homesite purposes, for a term of ten years or less; (2) the leasing of any of said lands, in such manner as the Legislature of the State of Arizona may prescribe, whether or not also leased for grazing and agricultural purposes, for mineral purposes, other than for the exploration, development, and production of oil, gas, and other hydrocarbon substances, for a term of twenty years or less; (3) the leasing of any said lands, whether or not also leased for other purposes, for the exploration, development, and production of oil, gas and other hydrocarbon substances on, in, or under said lands for an initial term of twenty years or less and as long thereafter as oil, gas, or other hydrocarbon substance may be procured therefrom in paying quantities, the leases to be made in any manner, with or without advertisement, bidding, or appraisement, and under such terms and provisions as the Legislature of the State of Arizona may prescribe, the terms and provisions to include a reservation of a royalty to said State of not less than 12% per centum of production; or (4) the Legislature of the State of Arizona from providing by proper laws for the protection of lessees of said lands, whereby such lessees shall be protected in their rights to their improvements (including water rights) in such manner that in case of lease or sale of said lands to other parties the former lessee shall be paid by the succeeding lessee or purchaser the value of such improvements and rights placed thereon by such lessee.

All lands, leaseholds, timber, and other products of land, before being offered, shall be appraised at their true value, and-no sale or other disposal thereof shall be made for a consideration less than the value so ascertained, nor upon credit unless accompanied by ample security, and the legal title shall not be deemed to have passed until the consideration shall have been paid.

No lands shall be sold for less than their appraised value, and no lands which are or shall be susceptible of irrigation under any projects now or hereafter completed or adopted by the United States under legislation for the reclamation of lands, or under any other project for the reclamation of lands, shall be sold at less than twenty-five dollars per acre: Provided, That said State, at the request of the Secretary of the Interior, shall from time to time relinquish such of its lands to the United States as at any time are needed for irrigation works in connection with any such government project. And other lands in lieu thereof are hereby granted to said State, to be selected from lands of the character named and in the manner prescribed in section twenty-four of this Act.

The State of Arizona is authorized to exchange any lands owned by it for other lands, public or private, under such regulations as the legislature thereof may prescribe: Provided, That such exchanges involving public lands may be made only as authorized by Acts of Congress and regulations thereunder.

There is hereby reserved to the United States and excepted from the operation of any and all grants made or confirmed by this Act to said proposed State all land actually or prospectively valuable for the development of water power or power for hydro-electric use or transmission and which shall be ascertained and designated by the Secretary of the Interior within five years after the proclamation of the President declaring the admission of the State; and no lands so reserved and excepted shall be subject to any disposition whatsoever by said State, and any conveyance or transfer of such land by said State or any officer thereof shall be absolutely null and void within the period above named; and in lieu of the land so reserved to the United States and excepted from the operation of any of said grants there be, and is hereby, granted to the proposed State an equal quantity of land to be selected from land of the character named and in the manner prescribed in section twenty-four of this Act.

A separate fund shall be established for each of the several objects for which the said grants are hereby made or confirmed, and whenever any moneys shall be in any manner derived from any of said land the same shall be deposited by the state treasurer in the fund corresponding to the grant under which the particular land producing such moneys was by this Act conveyed or confirmed. No moneys shall ever be taken from one fund for deposit in any other, or for any object other than that for which the land producing the same was granted or confirmed. The state treasurer shall keep all such moneys invested in safe, interest-bearing securities, which securities shall be approved by the governor and secretary o.f state of said proposed State, and shall at all times be under a good and sufficient bond or bonds conditioned for the faithful performance of his duties in regard thereto, as defined by this Act and the laws of the State not in conflict herewith.

Every sale, lease, conveyance, or contract of or concerning any of the lands hereby granted or confirmed, or the use thereof or the natural products thereof, not made in substantial conformity with the provisions of this Act shall be null and void, any provision of the constitution or laws of the said State to the contrary notwithstanding.

It shall be the duty of the Attorney-General of the United States to prosecute, in the name of the United States and in its courts, such proceedings at law or in equity as may from time to time be necessary and appropriate to enforce the provisions hereof relative to the application and disposition of the said lands and the products thereof and the funds derived therefrom.

Nothing herein contained shall be taken as in limitation of the power of the State or of any citizen thereof to enforce the provisions of this Act.

       This action is in form and substance a controversy between two agencies of the State of Arizona, both formally represented by the State’s Attorney General. We have nonetheless concluded that this is a. case with which we may properly deal. The Land Commissioner is apparently a substantially independent state officer, appointed for a term of years and removable only for cause. He is essentially the trustee of the trust at issue here, with custody of the trust lands. In addition, both the Commissioner and the Highway Department are represented by special counsel appointed by the Attorney General to advocate the divergent positions of the parties.

       The grants consisted of four sections in each township for the support of common schools, plus specified acreages for other designated purposes. The other acreages were granted for the support of agricultural and mechanical colleges, a school of mines, military institutes, the payment of bonds, miners’ hospitals, penitentiaries, and similar purposes. Of the 10,790,000 acres granted to Arizona for all designated uses, some 9,180,000 acres were earmarked for various educational purposes, of which some 8,000,000 acres were given for the support of common schools.

       Between 1803 and 1962, the United States granted a total of some 330,000,000 acres to the States for all purposes. Of these, some 78,000,000 acres were given in support of common schools. The Public Lands, Senate Committee on Interior and Insular Affairs, 88th Cong., 1st Sess., 60 (Comm. Print 1963).

       36 Stat. 575.

       Nine States urged as amici curiae that we review the judgment below. One of the nine, New Mexico, received lands in trust under the very grant in issue here. The Supreme Court of New Mexico has held in closely similar circumstances that actual compensation must be paid to the trust. State v. Walker, 61 N. M. 374, 301 P. 2d 317.

       In addition, the court suggested that the restrictions of the Enabling Act are inapplicable here because the State obtains less than a fee interest. This contention is plainly foreclosed by the language of § 28, by which “Every sale, lease, conveyance, or contract of or concerning any of the lands” is void unless in substantial conformity with the Act.

       The school lands were granted according to the rigid checkerboard pattern of the federal survey. Four sections per township were granted by number for the support of common schools, instead of the one section per township ordinarily given in the earlier grants, because the unappropriated lands in Arizona and New Mexico were largely of so little value. Orfield, Federal Land Grants to the States 45.

       S. Rep. No. 454, 61st Cong., 2d Sess., 18.

       Remarks of Senator Beveridge, 45 Cong. Rec. 8227.

        Ibid. These violations culminated in a series of lawsuits brought by the Department of Justice against those privy to them. These, lawsuits were pending when the Enabling Act was under study by Congress. The importance of this episode is also indicated in the committee’s report. S. Rep. No. 454, 61st Cong., 2d Sess., 19-20.

       Ariz. Fev. Stat. Ann. §12-1122. The statute permits benefits to reduce any damages caused by severance to the uncondemned portions of a parcel of land, but not to reduce the compensation paid for the land which is condemned.

       36 Stat. 574.

        Ibid. The Act fixed a minimum price of $3 per acre in Arizona. This requirement was removed by the Act of June 5, 1936. 49 Stat. 1477. The Act still requires that land “susceptible of irrigation” under federal or other projects not be sold for less than $25 per acre. 36 Stat. 574.

       36 Stat. 574.

       Orfield, Federal Land Grants to the States 48-52.

       S. Rep. No. 454, 61st Cong., 2d Sess., 20.

        Ibid.

       Remarks of Senator Beveridge, 45 Cong. Rec. 8227.

       Letter from former Secretary of the Interior Garfield to the House Committee on the Territories. H. R. Rep. No. 152, 61st Cong.-, 2d Sess., 3.

       Despite widespread use of the value of benefits in computing condemnation awards, the various rules adopted for that purpose have created confusion and difficulties. See Haar & Hering, The Determination of Benefits in Land Acquisition, 51 Calif. L. Rev. 833. These problems would be aggravated in the context of this situation, since the benefits would have to be individually computed for tracts of land scattered over the entire State.

       We do not mean to suggest that deferred payment arrangements might not be appropriate. Cf. the provisions of §28 (see Appendix): “no sale or other disposal thereof shall be made for a consideration less than the value so ascertained, nor upon credit unless accompanied by ample security, and the legal title shall not be deemed to have passed until the consideration shall have been paid.” Nor do we mean that exchanges, in the situations in which they are permitted by the Act, would not be appropriate. Cf. the provisions of § 28 (see Appendix): “The State of Arizona is authorized to exchange any lands owned by it for other lands, public or private, under such regulations as the legislature thereof may prescribe: Provided, That such exchanges involving public lands may be made only as authorized by Acts of Congress and regulations thereunder.”

       We are informed by counsel that over a period of years Arizona has obtained the use of large areas of trust lands on bases that may not have accorded with those set forth in this opinion. We wish to make it plain that we do not reach either the validity of any such transfers or the obligations of the State, if any, with respect thereto.