author: Mr. Justice Black Mr. Justice Goldberg, Mr. Justice Harlan,

text:
    GILLESPIE, ADMINISTRATRIX v. UNITED STATES STEEL CORP.
    No. 10.
    Argued October 13, 1964.
    Decided December 7, 1964.

      Jack G. Day argued the cause for petitioner. With him on the brief was Bernard A. Berkman.

      Thomas V. Koykka argued the cause for respondent. With him on the brief were McAlister Marshall and Robert B. Preston.

   Mr. Justice Black

delivered the opinion of the Court.

The petitioner, administratrix of the estate of her son Daniel Gillespie, brought this action in federal court against the respondent shipowner-employer to recover damages for Gillespie’s death, which was alleged to have occurred when he fell and was drowned while working as a seaman on respondent’s ship docked in Ohio. She claimed a right to recover for the benefit of herself and of the decedent’s dependent brother and sisters under the Jones Act, which subjects employers to liability if by negligence they cause a seaman’s injury or death. She also claimed a right of recovery under the Ohio wrongful death statute because the vessel allegedly was not seaworthy as required by the “general maritime law.” The complaint in addition sought damages for Gillespie’s pain and suffering before he died,, based on the Jones Act and the general maritime law, causes of action which petitioner said survived Gillespie’s death by force of the Jones Act itself and the Ohio survival statute, respectively. The District Judge, holding that the Jones Act supplied the exclusive remedy, on motion of respondent struck all parts of the complaint which referred to the Ohio statutes or to unseaworthiness. He also struck all reference to recovery for the benefit of the brother and sisters of the decedent, who respondent had argued were not beneficiaries entitled to recovery under the Jones Act while their mother was living.

Petitioner immediately appealed to the Court of Appeals. Respondent moved to dismiss the appeal on the ground that.the ruling appealed from was not a “final” decision of the District Court as required by 28 U. S. C. § 1291 (1958 ed.). Thereupon petitioner admin-istratrix, this time joined by the brother and sisters, filed in the Court of Appeals a petition for mandamus or other appropriate writ commanding the District Judge to vacate his original order and enter a new one either denying the motion to strike or in the alternative granting the motion but including also “the requisite written statement to effectively render his said order appealable within the provisions of 28 U. S. C. A. § 1292 (b),” a statute providing for appeal of certain interlocutory orders. Without definitely deciding whether mandamus would have been appropriate in this case or deciding the “close” question of appealability, the Court of Appeals proceeded to determine the controversy “on the merits as though it were submitted on an appeal”; this the court said it felt free to do since its resolution of the merits did not prejudice respondent in any way, because it sustained respondent’s contentions by denying the petition for mandamus and affirming the District Court’s order. 321 F. 2d 518. Petitioner brought the case here, and we granted certio-rari. 375 U. S. 962.

I.

In this.Court respondent joins petitioner in urging us to hold that 28 U. S. C. § 1291 (1958 ed.) does not require us to dismiss this case and that we can and should decide the validity of the. District Court’s order to strike. We agrée. Under § 129Í an appeal may be taken from any “final” order of a district court. But as this Court often has pointed out, a decision “final” within the meaning of § 1291 does not necessarily mean the last order possible to be made in a case. Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, 545. And our casés long have recognized that whether a ruling is “final” within the meaning of § 1291 is frequently so close a question that decision of that issue either way can be supported with equally forceful arguments, and that it is impossible to devise a formula to resolve all marginal cases coming within what might well be called the “twilight zone” of finality. Because of this difficulty this Court has held that the requirement of finality is to be given a “practical rather than a technical construction.” Cohen v. Beneficial Industrial Loan Corp., supra, 337 U. S., at 546. See also Brown Shoe Co. v. United States, 370 U. S. 294, 306; Bronson v. Railroad Co., 2 Black 524, 531; Forgay v. Conrad, 6 How. 201, 203. Dickinson v. Petroleum Conversion Corp., 338 U. S. 507, 511, pointed out that in deciding the question of finality the most important competing considerations are “the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other.” Such competing considerations are shown by the record in the case before us. It is true that the review of this case by the Court of Appeals could be called “piecemeal”; but it does not appear that the inconvenience and cost of trying this case will be greater because the Court of Appeals decided. the issues raised instead of compelling the parties to go to trial with them unanswered. We cannot say that the Court of Appeals chose wrongly under the circumstances. And it seems clear now that the case is before us that the eventual costs, as all the parties recognize, will certainly be less if we now pass on the questions presented here rather than send the ease back with those issues undecided. Moreover, delay of perhaps a number of years in having the brother’s and sisters’ rights determined might work a great injustice on them, since the claims for recovery for their benefit have been effectively cut off so long as the District. Judge’s ruling stands. And while their claims are not formally severable so as to make the court’s order unquestionably appealable as to them, cf. Dickinson v. Petroleum Conversion Corp., supra, there certainly is ample reason to view their claims as severable in deciding the issue of finality, particularly since the brother and sisters were separate parties in the petition for extraordinary relief. Cf. Swift & Co. Packers v. Compania Colombiana Del Caribe, S. A., 339 U. S. 684, 688-689; Gumbel v. Pitkin, 113 U. S. 545, 548. Furthermore, in United States v. General Motors Corp., 323 U. S. 373, 377, this Court contrary to its usual practice reviewed a trial court’s refusal to permit proof of certain items of damages in a case not yet fully tried, because the ruling was “fundamental. to the further conduct of the, case.” For these same reasons this Court reviewed such a ruling in Land v. Dollar, 330 U. S. 731, 734, n. 2, and Larson v. Domestic & Foreign Commerce Corp., 337 U. S. 682, 685, n. 3, where, as here, the case had not yet been fully tried. And see Cohen v. Beneficial Industrial Loan Corp., supra, 337 U. S., at 545-547. We think that the questions presented here are equally “fundamental to the further conduct of the case.” It is true that if the District Judge had certified the case to the Court of Appeals under 28 U. S. C. § 1292 (b) (1958 ed.), the appeal unquestionably would have been proper; in light of the circumstances we believe that the Court of Appeals properly implemented the same policy Congress sought to promote in § 1292 (b) by treating this obviously marginal case as final, and appealable under 28 U. S. C. § 1291 (1958 ed.). We therefore proceed to consider the correctness of the Court of Appeals’ judgment.

II.

In 1930 this Court held in Lindgren v. United States, 281 U. S. 38, that in passing § 33 of the Merchant Marine Act, 1920, now 46 U. S. C. § 688 (1958 ed.), commonly called the Jones Act, Congress provided an exclusive right of action for the death of seamen killed in the course of their employment, superseding all state death statutes which might otherwise be applied to maritime deaths, and, since the Act gave recovery only for negligence, precluding any possible recovery based on a theory of unseaworthiness. A strong appeal is now made that we overrule Lindgren because it is said to be unfair and incongruous in the light of some of our later cases which have liberalized the rights of seamen and nonseamen to recover on a theory of unseaworthiness for injuries, though not for death. No one of these cases, however, has cast doubt on the correctness of the interpretation of the Jones Act in Lindgren, based as it was on a careful study of the Act in the context of then-existing admiralty principles, decisions and statutes. The opinion in Lindgren particularly pointed out that prior to the Jones Act there had existed no federal right of action by statute or under the general maritime law to recover damages for wrongful death of a seaman, though some of the States did by statute authorize a right of recovery which admiralty would enforce. Congress, the Lindgren Court held, passed the Jones Act in order to give a uniform right of recovery for the death of every seaman. “It is plain,” the Court went on to say, “that the Merchant Marine Act is one of general application intended to bring about the uniformity in the exercise of admiralty jurisdiction required by the Constitution, and necessarily supersedes the application of the death statutes of the several States.” 281 U. S., at 44. Thirty-four years have passed since the Lindgren decision, and Congress has let the Jones Act stand with the interpretation this Court gave it. The decision was a reasonable one then. It provided the same remedy for injury or death for all seamen, the remedy that was and is provided for railroad workers in the Federal Employers’ Liability Act. Whatever may be this Court’s special responsibility for fashioning rules in maritime affairs, we do not believe that we should now disturb the settled plan of rights and liabilities established by the Jones Act.

Petitioner argues further that even if the only available remedy for death is under the Jones Act, the District Judge erred in refusing, to hold that the Jones Act provides for damages for death for the benefit of the brother and sisters of the decedent as well as for the mother. Their right of recovery, if any, depends on § 1 of the FELA, 45 U. S. C. § 51 (1958 ed.), which provides that recovery of damages for death shall be:

“for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee’s parents; and, if none, then of the next of kin dependent upon such employee . . . .”

In Chicago, B. & Q. R. Co. v. Wells-Dickey Trust Co., 275 U. S. 161, 163, this Court, speaking through Mr. Justice Brandéis, held that this provision creates “three classes of possible beneficiaries. But the liability is in the alternative. It is to one of the three; not to the several classes collectively.” We are asked to overrule this case so as to give a right of recovery for the benefit of all the members of all three classes in every case of death. Both courts below refused to do so, and we agree. It is enough to say that we adhere to the Wells-Dickey holding, among other reasons because we agree that this interpretation of the Act -is plainly correct. Cf. Poff v. Pennsylvania R. Co., 327 U. S. 399.

One other aspect of this case remains to be mentioned. The complaint sought to recover damages for the estate because “decedent suffered severe personal injuries which caused him excruciating pain and mental anguish prior to his death.” Petitioner contends that the seaman’s claim for páin and suffering survives his death and can be brought on a theory of unseaworthiness by force of" the Ohio survival statute. The District Judge struck the reference to the Ohio survival statute from the complaint, and the Court of Appeals held that there was “no substantial basis, in this case,” for a claim for pain and suffering prior to death. There is,, of course, no doubt that the Jones Act through § 9 of the FELA, 45 U. S. C. § 59 (1958 ed.), provides for survival after the death of' the seaman of “[a]ny right of action given by this chapter,” i. e.j of his claim based on a theory of negligence. And we may assume, as we .have in the past, that after ■ death of the injured person a' state survival statute can preserve the cause of action for unseaworthiness, which would not survive under the genéral maritime law. In holding that petitioner had not stated a claim entitling her to recovery for the decedent’s pain and suffering the Court of Appeals relied on The Corsair, 145 U. S. 335, 348, a case brought in a federal court to recover damages under a Louisiana survival statute for alleged, pain and suffering prior to death by drowning where there was an interval of “about ten minutes” between the accident and death. The Court held shch damages could not be recovered there, saying:

“. . . there is no averment from which we .can gather that these pains and sufferings were not substantially cotemporaneous with her death.and inseparable as matter of law from it.”

Plainly this Court did not hold in The Corsair that damages cannot ever be recovered for physical and mental pain suffered prior to death by drowning. The case held merely that the averments of the plaintiff there did not justify awarding such damages in an action under the Louisiana survival statute. The Court’s language certainly did not preclude allowance of such damages in all circumstances under other laws, or even under the Louisiana statute in a case where pain and suffering were “not substantially cotemporaneous with . . . death and inseparable as matter of law from it.” In this day of liberality in allowing amendment of pleadings to achieve the ends of justice, the issue whether the decedent’s estate could recover here,for pain and suffering prior to death should not have been decided finally by the Court of Appeals on the basis of mere pleading. Therefore the question whether damages can be recovered for pain and suffering prior to death on the facts of this case will remain open. In all other respects the judgment of the Court of Appeals is

Affirmed.

Mr. Justice Goldberg,

dissenting in part.

I agree that this case is properly here, but disagree with the Court on the merits of the basic question presented for decision.

The precise point at issue in this case is whether a suit in a federal court for the death of a seaman resulting from unseaworthiness of a vessel may be maintained against the employer where the. death occurs within the waters of a State which provides a statutory remedy for wrongful death.

In deciding this question, the Court today preserves an ánomaly in admiralty law which has neither reason nor justification. A seaman who is either injured or killed while on the high seas is given a remedy for either negligence or unseaworthiness, Mahnich v. Southern S. S. Co., 321 U. S. 96, Kernan v. American Dredging Co., 355 U. S. 426, 430, n. 4; a seaman who is injured in territorial waters may also sue for either negligence or unseaworthiness, McAllister v. Magnolia Petroleum Co., 357 U. S. 221, cf. Seas Shipping Co. v. Sieracki, 328 U. S. 85; an injured seaman may also sue for maintenance and cure and these claims survive his death, see Kernan v. American Dredging Co., supra, at 430, n. 4; a nonseaman’s death in territorial waters gives rise to an action based upon the applicable state wrongful death statute for both negligence and the general maritime doctrine of unseaworthiness, The Tungus v. Skovgaard, 358 U. S. 588. Only the family survivors of a seaman are left without a remedy for his death within territorial waters caused by failure to maintain a seaworthy vessel. Only they are denied recourse to this rule of absolute liability and relegated to proof of negligence under the Jones Act. This disparity in treatment has been characterized by the lower federal courts as “deplorable,” “anomalous,” “archaic,” “unnecessary,” and “hard to understand.” See Fall v. Esso Standard Oil Co., 297 F. 2d 411, 417 (C. A. 5th Cir.) (Wisdom, J.); Mortenson v. Pacific Far East Line, Inc., 148 F. Supp. 71, 73 (D. C. N. D. Cal.); Gill v. United States, 184 F. 2d 49, 57 (C. A. 2d Cir.) (L. Hand, J., dissenting). I agree with these characterizations.

The Court relies upon Lindgren v. United States, 281 U. S. 38, and the doctrine of stare decisis to justify its holding — a holding which, in my view, is at variance with the general congressional intent in enacting the Jones Act “to provide liberal recovery for injured workers.” Kernan v. American Dredging Co., 355 U. S. 426, 432. I do not feel that stare decisis compels the conclusion reached by the Court, because I believe, first, that the language of the Court in Lindgren is dictum and, second, that even if the language embodied a holding, such a holding should be overruled.

The precise issue before the Court in Lindgren was not whether a state wrongful death statute should be applied to supply a remedy for unseaworthiness — the issue here presented — but rather whether such a statute should be applied to supply a remedy for negligence.

The libel in Lindgren, the Court acknowledged, “does not allege the unseaworthiness of the vessel and is based upon negligence alone . . . .” 281 U. S., at 47.

The actual decision in Lindgren of precedential effect is that the Jones Act which provides a remedy for wrongful death due to negligence supersedes state remedies for such negligence. With this precise holding there can be no quarrel. The Jones Act, 41 Stat. 1007, 46 U. S. C. § 688 (1958 ed.), says that “statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable” to seamen’s cases. This Court has held that Congress intended that the Federal Employers’ Liability Act, 35 Stat. 65, as amended, 45 U. S. C. §|§ 51-60 (1958 ed.), replace negligence and related state remedies. New York Central R. Co. v. Winfield, 244 U. S. 147. The Court in Lindgren reasonably concluded that the Jones Act, incorporating the standard of the FELA, supersedes and pre-empts state remedies for negligence. It correctly decided that since the wrongful death before it was “based upon negligence alone” recovery could only be had- under the Jones Act and not under the state wrongful death statute. On this precise holding, Lindgren is a valid precedent and should be followed.

The-Court.in Lindgren, however, went on to say, at 46-47,:-

“In the light of the foregoing decisions and in accordance with the principles therein announced we conclude that the Merchant Marine Act — adopted by Congress in the exercise of its paramount authority in reference to the maritime law and incorporating in thát law the provisions of the Federal Employers’ Liability Act — establishes as a modification of the prior maritime law a rule of general application in reference to the liability of' the owners of vessels for injuries to seamen extending territorially as far as Congress can make it go; that this operates uniformly within all of the States and is as comprehensive of those instances in which by reference to the Federal Employers’ Liability Act it excludes liability, as of those in which liability is imposed; and that, as it covers the entire field of liability for injuries to seamen, it is paramount and exclusive, and supersedes the operation of all state statutes dealing with that subject;
“It results that in the present case no resort can be had to the Virginia Death Statute, either to create a right of action not given by the Merchant Marine Act, or to establish a measure of damages not provided by that Act.
“Nor can the libel be sustained as one to recover indemnity for Barford’s death under the old maritime rules on the ground that the injuries were occasioned by the unseaworthiness of the vessel. Aside from the fact that the libel does not allege the unseaworthiness of the vessel and is based upon negligence alone, an insuperable objection to this suggestion is that the prior maritime law, as herein above stated, gave no right to recover indemnity for the death of a seaman, although occasioned by unseaworthiness of the vessel.”

It is apparent from this statement itself that the Court’s observation that the Jones Act pre-empted state remedies for death resulting from unseaworthiness, as distinguished from negligence, was purely and simply obiter dictum. Cf. The Tungus v. Skovgaard, supra, at 606-607 (opinion of Mr. Justice Brennan). Even the English courts, which hold to a doctrine of stare decisis more rigid than our own, hold that obiter dicta are in no wise controlling. Surely the rule of stare decisis should not preclude consideration of whether such dicta were originally supported by logic and have withstood the test of time.

In fact, much of the reasoning supporting the Lindgren dictum has been rejected in subsequent decisions of this Court. The Court’s rationale in Lindgren for its conclusion that the Jones Act pre-empted remedies for wrongful death resulting from unseaworthiness, as well as negligence, was in part that the Act “covers the entire field of liability for injuries to seamen, it is paramount and exclusive.” Lindgren v. United States, supra, at 47. In Mahnich v. Southern S. S. Co., supra, however, this Court held that a seaman may recover for injuries sustained from the ship’s unseaworthiness notwithstanding his right to a remedy under the Jones Act for negligence. And in Seas Shipping Co. v. Sieracki, supra, the Court held that the same is true of longshoremen. The logic of Judge Learned Hand’s comment on the effect of these decisions on the rationale of the Lindgren dicta is inescapable:

“I find- it hard to understand why the rationale of Lindgren v. United States ... ought not to have forbidden recovery in either of these instances. If the Jones Act ‘covers the entire field of liability for injuries to seamen’. . . and ‘is paramount and exclusive,’ why does it not supersede injuries arising from unseaworthiness which do not result in death, as well as those which do?” Gill v. United States, supra, at 57.

There-is, however, an answer to Judge Hand’s question. The Court in Lindgren was wrong in its sweeping assertion that the Jones Act covers the entire field of liability for injuries to seamen and is paramount and exclusive. Congress in passing the Jones Act meant to leave certain pre-existing remedies untouched. And Congress did not intend in enacting the Jones Act— a remedial statute — to eliminate the seaman’s right to recovery for maintenance and cure or for unseaworthiness. See The Osceola, 189 U. S. 158, 175. The admiralty rule that the vessel and owner are liable to the seaman for “injury caused by unseaworthiness of the vessel or its appurtenant appliances and equipment, has been the settled law since this Court’s ruling to that effect in The Osceola, [189 U. S. 158,] 175.” Mahnich v. Southern S. S. Co., supra, at 99.

What Congress did intend in enacting the Jones Act was to provide an additional remedy denied in maritime law, as ruled in The Osceola, supra, “by way of indemnity beyond maintenance,and cure, for the injury to a seaman caused by the mere negligence of a ship’s officer or member of the crew.” Ibid. (Emphasis added.)

In other words, prior to the Jones Act, “the maritime law afforded no remedy . . for . . . injury to a seaman caused by . . . negligence.” Ibid. The Jones Act supplied a maritime remedy for negligence; it pre-empted those purely state remedies related to negligence and it is paramount and exclusive only to that extent. The Act does not supersede, as Mahnich holds, traditional maritime remedies for unseaworthiness.

Traditional maritime law not only recognized the right of a seaman to recover for injuries caused by unseaworthiness, The Osceola, supra, at 175; it also recognized a right of action to recover for the death of a seaman resulting from unseáworthiness of a vessel where the death occurs in the navigable waters of a State which provides a statutory remedy for wrongful death. This was recognized in the Lindgren opinion. 281 U. S., at 43. See also Western Fuel Co. v. Garcia, 257 U. S. 233, 242.

Simple logic compels the conclusion that if the Jones Act does not pre-empt a seaman’s traditional remedy for injuries caused by unseaworthiness, it similarly does not pre-empt the right of action to recover for the death of a seaman resulting from unseaworthiness to the extent that such a remedy was recognized before the Jones Act in States providing a statutory remedy for wrongful death.

Legislative history as well as logic supports the conclusion that 'Congress by. enacting the Jones Act did not intend to eliminate then-existing remedies for unseaworthiness.

The same Congress which passed the Jones Act providing a remedy for injuries to a seaman resulting from negligence and a remedy for wrongful déath caused, by negligence where the death occurs in state, waters, enacted the Death on the High Seas Act, 41 Stat. 537, 46 U. S. C. §§ 761-768 (1958. ed.). This statute gives an admiralty remedy for wrongful death of a seaman or other person occurring on the high seas beyond a marine league from the shore of any State. The Act expressly stipulates that “[t]he provisions of any State statute giving or regulating rights of action dr remedies for death shall not be affected by this chapter.” 41 Stat. 538, 46 U. S. C. § 767 (1958 ed.)

In The Tungus v. Skovgaard, supra, at 593, Mr. Justice Stewart for the Court said of this exception:

“The .legislative history of the Death on the High Seas Act discloses a clear congressional purpose to leave ‘unimpaired the rights under State statutes as to deaths on waters within the territorial -jurisdiction of the States.’ S. Rep. No. 216, 66th Cong., 1st Sess. 3; H. R. Rep. No. 674, 66th Cong., 2d Sess. .3. The record of the debate in the House of Representatives preceding passage of the bill reflects deep concern that the power of the States to create actions for wrongful death in no way be affected by enactment of the federal law. 59 Cong. Rec. 4482-4486.”

' From this expression of congressional purpose, the Court in The Tungus concluded that a suit in admiralty for death of a longshoreman resulting from unseaworthiness of a vessel may be maintained against the vessel’s owner where the death occurs in the waters of a State which provides a statutory remedy for wrongful death.

It seems to me to strain credulity to impute to Congress the intent to eliminate state death remedies for unseaworthiness where the décedent is a seaman while refusing to do so in cases involving nonseamen. Yet this is the result of the Court's following Lindgren.

Finally, even though the Lindgren dictum has been in existence for 34 years, no policy of stare decisis militates against overruling Lindgren. In refusing to follow Lind- . gren we would not create new. duties or standards of liability ; we would merely allow a new remedy. Shipowners are currently required to maintain a seaworthy ship; seamen and longshoremen currently recover for death on the high seas and injury suffered anywhere due to an unseaworthy vessel. The action of a shipowner in maintaining his vessel will not be affected by now allowing recovery for wrongful death in territorial water caused by unseaworthiness. It is thus' difficult to find much if any reliance that would justify the continuation of a legal anomaly which would deny a humane and justifiable remedy.

Stare decisis does not mean blind adherence to irrational doctrine. The very point of stare decisis is to produce a sense of security in the working of the legal system by requiring the satisfaction of reasonable expectations. I should think that by allowing a remedy where one is needed, by eliminating differences not based on reason, while still leaving the underlying scheme of duties unchanged, this sense of security will not be weak- ‘ ened but strengthened. The policies behind stare decisis point toward ignoring Lindgren, not following it.

I cannot agree that Congress in enacting the Jones Act, designed “to provide liberal recovery for injured workers,” intended to create the anomaly perpetuated by the Court’s decision. I would reverse and free the lower fed-. eral courts to grant relief in these cases — relief which many of them have indicated is just and proper “in terms of general principles,” Fall v. Esso Standard Oil Co., supra, at 417, and which they gladly would accord but for the unfortunate and unnecessary compulsion of Lindgren.

Since petitioner claims that Ohio law allows recovery for a wrongful death caused by unseaworthiness, nothing in either the majority or minority opinion in The Tungus v. Skovgaard, supra, would preclude recovery. Only the Lindgren dictum stands in the way. I would reject this dictum and reverse.

Mr. Justice Harlan,

dissenting.

I think that due regard for the “finality” rule governing the appellate jurisdiction of the courts of appeals requires that the judgment belo.w be vacated and. the case remanded to the Court of Appeals with instructions to dismiss the appeal because the decision of the District Court was not a “final” one, and hence not reviewable by the Court of Appeals at this stage of the litigation. .

Petitioner sought to recover in this action upon two theories: negligence under the Jones Act and unseaworthiness under the general maritime law. The District Court dismissed the unseaworthiness claim in the complaint, and petitioner appealed. Although petitioner seemed to recognize that the order was not appealable, the Court of Appeals, overruling respondent’s motion to dismiss for lack of jurisdiction, affirmed on the merits and this Court granted certiorari over respondent’s showing that the Court of Appeals should not have entertained the appeal. The Court substantially affirms the judgment of the Court of Appeals and the parties are remanded to a trial on the merits, but only after they have incurred needless delay and expense in consequence of the loose practices sanctioned by the Court of Appeals and in turn by this Court. This case thus presents a striking example of the vice inherent in a system which permits piecemeal. litigation of the issues in a lawsuit, a vice which Congress in 28 U. S. C. § 1291 intended to avoid by limiting appeals to the courts of appeals only from “final decisions” of the district courts, with exceptions not here relevant.

Manifestly the decision of the District Court reviewed by the Court of Appeals lacked the essential quality of finality; it involved but interstitial rulings in an action not yet tried. The justifications given by the Court for tolerating the lower court’s departure from the requirements- of § 1291 are, with all respect, unsatisfactory.

1. The Court relies on the discretionary right of a district court to certify an interlocutory order to the court of appeals under § 1292 (b) when the “order involves a controlling, question of law,” but the District Court in its discretion — and rightly it turns out — did not make such a certification in this case, and the Court of Appeals, equally correctly in my judgment, refused to order it to do so. The fact that Congress has provided some flexibility in the final judgment rule hardly lends support to the Court’s attempt to obviate jurisdictional restrictions whenever a court of appeals erroneously entertains a nonappealable order and hardship may result if the substantive questions are not then decided here.

2. Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, does not support a different, result. As the Court in that case stated, § 1291 does not permit appeals from decisions “where they are but steps towards final judgment in which they will merge . . . [and are not] claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” 337 U. S., at 546. It is clear in this case that had petitioner proceeded to trial and won on her Jones Act claim, her asserted cause of action for unseaworthiness would have merged in the judgment. See Baltimore S. S. Co. v. Phillips, 274 U. S. 316. Conversely, her claim would have been preserved for appeal had she lost on her Jones Act claim. Surely the assertion that petitioner is entitled to submit her unseaworthiness theory to the jury is not collateral to rights asserted in her action, so as to entitle her to an appeal before trial.

3. Finally, the Court’s suggestion that “it seems clear now that the case is before us that the eventual costs, as all the parties recognize, will certainly be less if we now pass on the questions presented here rather than send the case back with those issues undecided,” ante, p. 153, furnishes no excuse for avoidance of the finality rule. Essentially such a position would justify, review here of any case decided by a court of appeals whenever this Court, as it did in this instance, erroneously grants certio-rari and permits ’counsel to brief and argue the case on the merits. That, I believe, is neither good law nor sound judicial administration.

I would vacate the judgment' of the Court of Appeals and remand the case to that court with directions to dismiss petitioner’s appeal for lack of jurisdiction.

Memorandum of Mr. Justice Stewart.

While I agree with Mr. Justice Harlan that this case is not properly here, the Court holds otherwise and decides the issues presented on their merits. As to those issues, I join the opinion of the Court.

       41 Stat. 1007, 46 U. S. C. § 688 (1958 ed.):
      “Any seaman who shall suffer personal injury in the course of his employment may; at his election,- maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.”

       Ohio Rev. Code § 2125.01.

       Ohio Rev. Code §2305.21.

         “The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States ... except where a direct review may be had in the Supreme Court.”

       Section 1292 (b) provides:
      “When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals may thereupon, in its discretion, permit . an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless .the district judge or the Court of Appeals or a judge thereof shall so order.”

       321 F. 2d 518,532.

       No review is sought in this Court of the denial of the petition for mandamus»

       See, e. g., The Tungus v. Skovgaard, 358 U. S. 588, 595, n. 9; Pope & Talbot, Inc. v. Hawn, 346 U. S. 406; Seas Shipping Co. v. Sieracki, 328 U. S. 85; Mahnich v. Southern S. S. Co., 321 U. S. 96.

        Chelentis v. Luckenbach S. S. Co., 247 U. S. 372; The Harrisburg, 119 U. S. 199; cf. The Osceola, 189 U. S. 158.

        Great Lakes Dredge & Dock Co. v. Kierejewski, 261 U. S. 479; Western Fuel Co. v. Garcia, 257 U. S. 233; cf. The Hamilton, 207 U. S. 398.

       35 Stat. 65, as amended, 45 U. S. C. §§51-60 (1958 ed.).

       See Fitzgerald v. United States Lines Co., 374 U. S. 16, 20-21, and cases there cited.

       36 Stat. 291, 45 U. S. C. § 59 (1958 ed.):
      “Any right of action given by this chapter to a person suffering ' injury shall survive to his or her personal representative, for the benefit of the surviving widow or husband and children- of such employee, and, if none, then of such employee’s parents; and, if none, then of the next of kin. dependent upon .such employee, but in such cases there shall be only one recovery for. the same injury.”

       “Presumably any claims, based on unseaworthiness, for damages accrued prior to the decedent’s death would survive, at least if a pertinent state statute is effective to bring about a survival of the seaman’s right.” Kernan v. American Dredging Co., 355 U. S. 426, 430, n. 4. See also Curtis v. A. Garcia y Cia., 241 F. 2d 30, 36-37. (C. A. 3d Cir.); Holland v. Steag, Inc., 143 F. Supp. 203, 205-206 (D. C. D. Mass.).

       Cf. Just v. Chambers, 312 U. S. 383.

        Cortes v. Baltimore Insular Line, Inc., 287 U. S. 367.

       See Fed. Rules Civ. Proc. 15; Foman v. Davis, 371 U. S. 178; United States v. Hougham, 364 U. S. 310; cf. Conley v. Gibson, 355 U. S. 41.

       Catlett, The Development of the Doctrine of Stare Decisis and the Extent to Which it Should Be Applied. 21 Wash. L. Rev. 158, 162.

       Moreover, -federal courts have borrowed state survival statutes to allow for the survival of claims based upon unseaworthiness for conscious pain and suffering prior to the seaman’s death. Holland v. Steag, Inc., 143 F. Supp. 203 (D. C. D. Mass.) cited with approval in Kernan v. American Dredging Co., supra, at 430, n. 4; accord: McLaughlin v. Blidberg Rothchild Co., 167 F. Supp. 714 (D. C. S. D. N. Y.); cf. Just v. Chambers, 312 U. S. 383. I see no way to hold uiider Lindgren that state survival'statutes may be applied to preserve actions for pain and suffering,' yet state wrongful death actions ihay not be used to allow an action for wrongful death.

       Even if the analogy with FELA cases were followed exactly, New York Central R. Co. v. Winfield, supra, could require-no more than pre-emption oí purely state strict liability remedies. ( A wrongful death action based on unseaworthiness was a mixed state-federal remedy in whiéh maritime courts borrowed a state wrongful death action which in turn was based' upon a federal maritime standard of liability. Nothing in Winfield requires a finding that this type of remedy was pre-empted.

       After the appeal was filed, petitioner unsuccessfully sought a writ of mandamus to compel the District Court to certify' its order to the Court of Appeals under 28 U. S. C. § 1292 (b), ante, pp. 151-152.

       The jurisdictional defect in this case arises only from the lack of finality' of the District Court's order. In United States v. General Motors Corp., 323 U. S. 373; Larson v. Domestic & Foreign Commerce Corp., 337 U. S. 682; and Land v. Dollar, 330 U. S. 731, all cited in the majority opinion, ante, pp. 153-154, the District Court had entered a final' judgment, but the Court of Appeals reversed and remanded the case for further proceedings. Thus the finality question before this Court was simply whether it should review a nonfinal order of the Court of Appeals, which of course the Court clearly has authority to do under 28 U. S. C. § 1254 (1) (1958 ed.).

       See 28 U. S. C. §.1292.(1958 ed.),

       The purpose of § 1292 (b).was to permit a district judge, in his discretion, to obtain immediate review of an order which might control the further conduct of the case and which normally involves an unsettled question of law. Cf. 28 U. S. C. § 1254 (3). (1958 ed.). In this case the District Court’s ruling was controlled by Lindgren v. United States, 281 U. S. 38, and the válidity of that ruling could only be tested by having certiorari issue from this Court. In that posture, I think the District Court was quite right in not wanting la. delay the litigation on'the chance that this Court would re-evaluate its decision ip 'Lindgren.

       Compare Schlagenhauf v. Holder, ante, p. 104, at 110. The presence of the brother and sisters, ante, p. 153, of the Court’s opinion, cannot somehow serve to make the District Court order final. They were parties only to the mandamus proceeding, Court’s opinion ante, pp. 151, 152, n. 7, their claims were not severable from petitioner’s, id., p. 153, and the merit of their claims likewise depended on a holding that Lindgren was overruled, see n. 4, supra. I can see no “injustice” resulting to the brother and sisters by delaying review. of the order until after final judgment which is not also present with-respect to petitioner.

       Understandably counsel for the respondent, as he explained in oral argument, did not brief the finality point following the grant of certiorari; he assumed that the granting of the petition, despite his having raised the matter in his response thereto, indicated that the Coúrt had no interest in the question.


source: Caselaw Access Project

author: Mr. Justice White

license: Public Domain

text:
    AMERICAN FEDERATION OF MUSICIANS OF THE UNITED STATES AND CANADA et al. v. WITTSTEIN et al.
    No. 27.
    Argued November 16, 1964.
    Decided December 7, 1964.

      Henry Kaiser argued the cause for petitioners. With him on the brief were Eugene Gressman, George Kauf-mann, David I. Ashe and Jerome H. Adler.

      Godfrey P. Schmidt argued the cause and filed a brief for respondents.
    Briefs of amici curiae, urging reversal, were filed by Solicitor General Cox for the United States, and by J. Albert Woll, Robert C. Mayer, Theodore J. St; Antoine and Thomas E. Harris for the American Federation of Labor and Congress of Industrial Organizations.
   Mr. Justice White

delivered the opinion of the Court.

The issue presented in thesé suits is whether § 101 (a) (3) of the Labor-Management Reporting and Disclosure Act of 1959 providing that the dues of an international union “shall not. be increased . . . except ... by majority vote of the delegates voting at a regular convention” prohibits the vote of delegates at a national convention of the union, as authorized by its constitution, from being weighted and counted according to the number of members in the local that the delegate represents.

I.

The petitioner American Federation of Musicians (Federation) is an international labor organization comprising 675 locals in the United States and Canada. As .with numerous other national and international labor organizations having many scattered locals. of varying size, Federation’s constitution and bylaws have long authorized alternative methods of ascertaining the vote of the delegates representing the locals at a union convention. Each local is entitled to one delegate for each 100 members or major fraction thereof, not to exceed three delegates from any one local. Federation’s bylaws permit a voice vote of the delegates attending a convention in all cases, which is the method often used on routine noncontroversial matters. When amendments to the union constitution or bylaws are at issue, however, the delegates representing the locals, upon a roll call vote, may cast as many votes as there are members in the respective locals. A roll call vote is required upon the demand of 10 delegates or five locals. All amendments to the bylaws and constitution approved by a roll call vote are required under the constitution to be referred to a convention committee which may approve or veto the proposal.

At petitioner’s 1963 annual convention, a resolution increasing the per capita dues of all members, approximately 255,000, was submitted to the delegates. After the chairman ruled that two voice votes of the delegates were inconclusive, a delegate speaking on behalf of five locals requested a roll call vote in accordance with Federation’s constitution. The rules governing a roll call vote were explained to the delegates. Delegates were to cast as many votes as there were members in the local that they represented. If the delegates from a given local were in disagreement, the total votes of that local were to be divided among the delegates. The roll call was taken and the recommendation carried by some 44,326 votes, with less than one-half of the delegates present voting in favor of the proposal.

Respondents, members of several -locals whose delegates voted for or against the resolution at the convention, brought these suits against Federation and one of its locals to have the resolution declared null and void and its. implementation enjoined. In the District Court, summary judgment in the consolidated actions was rendered for the respondent union members. 223 F. Supp. 27 (D. C. S. D. N. Y.). Finding that the material facts about the enactment of the dues resolution in regard to the issue under § 101 (a)(3)(B) were not in dispute, that court ruled that weighted voting did not comply with § 101 (a)(3)(B)’s requirement of approval by “majority-vote of the delegates voting at a regular convention.” Á divided Court of Appeals affirmed. 326 F. 2d 26 (C. A. 2d Cir.). Although noting that weighted voting “is to all appearances the most ‘democratic’ method, in the sense that each member is duly ‘represented,’ ” it held that the plain language of § 101 (a)(3)(B) requires that each delegate be allowed but one vote regardless of the number of members he represents. The question being an important one of' first impression under the LMRDA, we granted certiorari. 376 U. S. 942. We hold that § 101 (a)(3)(B) does not prohibit a weighted-voting system under which delegates cast a number of votes equal to the membership of the local union from which they are elected.

II.

Under § 101 (a) (3) (B) an international union may increase membership dues or levy an assessment by majority voté of the members voting in a membership referendum, by majority vote of the members of the executive board, effective, however, only to the next regular conventipn, or “by majority vote of the delegates voting at a . . . convention.” The quoted language, it is said, authorizes only one system of voting: a head count of the delegates at a convention. Just as each member and each executive board member is entitled to one vote, so too each delegate may cast only his single vote. There cannot be a majority vote of the delegates voting, the argument proceeds, unless a delegate casts but one vote, no more or less, and the affirmative votes cast add up to a majority of the delegates voting. So far the argument is based solely upon what is said to be the literal meaning of the statutory language; there is no suggestion that § 101 (a) (3) (B) embodies an accepted or preferable system of representation by delegates or that the provision requires any set number of delegates at a convention or any particular relationship between the size of the local and the number of representatives at the convention.

We do not think this is the only fair import of the language in § 101 (a)(3)(B). The section requires a majority vote of the delegates voting. It does not state that a dues increase must be approved by a majority of the delegates voting at a convention. The respondents’ construction renders the key word “vote” entirely superfluous, although that word describes what is to be counted to determine a majority. The provision on its face prescribes only by whom the vote must be cast — a delegate to a convention — and the proportion of votes needed for passage — a majority of the votes cast. The statute does require that those voting at a convention be delegates, but it says nothing about the number of votes each delegate may cast. Where the “vote” cast at a convention is weighted according to the number of people the delegate represents, that vote, we think, is a vote of a delegate. We believe that a majority vote so determined in favor of a dues increase is approval by majority vote of the delegates voting at a. convention.

Whatever doubts may be left by sole and plenary reliance on plain meaning are fully resolved by consideration of the legislative history behind § 101 (a)(3)(B) and of other provisions of the'LMRDA. This section had its genesis in Senator McClellan’s proposals in S. 1137, which would have required a “general vote” on rules relating to the rate of dues and initiation fees and would have required that the vote of delegates at a convention “be numerically-equivalent, or proportionate, to the number of the members of [each] constituent unit.” I Leg. Hist. 269, 278. Although S. 1137 was not reported out by the Senate Committee on Labor and Public Welfare, Senator McClellan’s requirement that the voting strength of convention delegates be proportionate to the size of their constituency is significant for the reason that it was the outgrowth of the extensive hearings held by the McClellan Committee which uncovered substantial evidence of various forms of internal misgovernment and abuses in several labor organizations. The findings of this committee became the primaryfoasis for the many bills that followed its investigations, an amalgam of which ultimately became the LMRDA. In light of the fact that then as now many large unions had provisions for weighted voting by delegates at a convention, it is very clear that weighted voting was not thought to be one of these abuses or forms of misgovernment.

Senate bill No. 1555, the Kennedy-Ervin bill, was favorably reported out of the Senate Committee on Labor and Public Welfare without any Bill of Rights for union members, now Title I of the Act, of which the provision relating to dues is a part. Senator McClellan soon introduced a comprehensive Bill of Rights provision as an amendment to S. 1555, which was adopted in the Senate by a vote of 47 to 46. In respect to financial exactions, this amendment placed a flat limit on initiation fees and required for approval of a dues increase a majority vote of the members in the case of a local union and a “majority vote of the delegates present” at a general meeting in the case of a national or international union. It is not without significance that this language is susceptible of the same construction that is urged here in respect to § 101 (a)(3)(B), for it is quite clear that the author of this provision, Senator McClellan, did not intend to prohibit weighted voting. A few days later the Kuchel amendment, substituting another Bill of Rights provision, was adopted by a vote of 77 to 14. This amendment eliminated some of the more stringent requirements of Senator McClellan’s Bill of Rights, such as the limit on initiation fees, and dealt with voting procedures for approval of a dues increase by a local and an international union in more detail; in the case of a local, majority, approval of the members was necessary, while in the case of an international, a “majority vote at a regular convention” was required. Under this language, which was said to be “taken almost verbatim from ... the McClellan amendment,” it is very clear that no question of .the permissibility of weighted voting could be raised. And no one expressed the thought that the McClellan pror posal on voting was being altered in this or any other respect. S.' 1555 passed the Senate with the Kuchel substitute as Title I.

The changes in § 101 (a) (3) (B) in the House support the conclusion that this provision does not bar weighted voting. S. 1555^'as passed.by the Senate, became the focus of testimony before a Joint Subcommittee of the House Committee on Education and Labor. The gist of the objections to § 101 (a) (3) (B) was that it failed explicitly to allow other methods of ensuring membership participation on proposals of an international or national union to increase dues, and it was too rigid in disallowing action by an executive board of the international or national union. The Committee responded'by expanding the permissible methods of raising dues. As reported out in the Elliott bill, § 101 (a)(3)(B) allowed an international to increase dues by majority vote of the members, by majority Vote of the members of an executive board, effective only until the next convention, and “by majority vote of the delegates voting at a regular convention.” The Committee version was incorporated in identical language in the Landrum-Griffin bill, which prevailed on the floor of the House. In respect to his bill, Representative Griffin observed generally, that the “bill of rights in our substitute is essentially the bill of rights in the form passed by the [Seriate]. It guarantees to union members, subject to reasonable rules and regulations, . . . that their dues and initiation fees will not be increased arbitrarily.” The House Joint Conference Committee Report confirmed the view that the Senate and House versions of Title I contain “similar provisions.” Senator Goldwater, a member of the Joint Committee that considered S. 1555 and Landrum-Griffin, stated in his textual analysis of both bills that the House version of § 101 (a) (3) (B) was technically preferable and that the differences were in respect to the expanded methods of approval under the House bill and the applicability of the House bill only to dues increases rather than all changes. And Senator Kuchel, the author of the Senate version of the dues proposal, and a conferee, stated that the Landrum-Griffin bill “adopted substantially the same bill of rights language” as he had earlier authored. In light of the fact that the House changes were in the direction of affording unions more latitude for raising dues and the fact that- no one, in the House or Senate, perceived that the House version would restrict voting at -a convention to a head count of the delegates, we think it abundantly clear that § 101 (a)(3)(B) was intended to guarantee a member’s “right to participate in deciding upon the rate of dues, initiation fees, and assessments,” H. R. Rep. No. 741 on H. R. 8342, 86th Cong., 1st Sess., at 7, I Leg. Hist. 759, 765, but not to bar a well-known system of voting embodied in many union constitutions which well serves that end.

Other provisions of the LMRDA confirm this view. Section 101 (a)(3)(B) is a part of Title I, entitled the “Bill of Rights of Members of Labor Organizations.” This Title guarantees to every member of a labor organi-: zation equal rights and privileges to vote, to attend meetings, and to participate in the deliberations and business of such meetings. Section 101 (a)(3)(B) forms a part of this framework by requiring participation by all mem-, bers, either directly or through their elected representatives, on certain union matters thought to be of special importance. We find nothing to indicate that Congress thought this objective would be better fulfilled by allowing a delegate to cast one vote, regardless of the size of his constituency, than by permitting him to cast a.vote equal to the number of members he represents. As a part of the Act’s, purpose of protecting and fostering participation by the rank and file in. the affairs of the union, Title IV contains elaborate statutory safeguards for the election of union officers. But nothing in that title prohibits election of union officers by delegates voting, at a convention in accordance with the number of members they represent. Respondents do not demonstrate any differences between weighted voting for officers of the union and weighted voting on changes in financial exactions that would support the asserted difference in voting procedures applicable to each. It is argued that delegates may not ascertain or follow the wishes of the members in respect to dues and assessments. But few issues are more likely to arouse active opposition and general membership participation than a proposal to increase dues. Further, this argument is too broad, for it questions the validity of a system of representative union government and has little to do with the manner in which the representative’s vote is counted. Section 101 (a)(3)(B), as well as Title IV, authorizes a representative system of. government and does not require a town meeting for action by an international or national union. To that end Congress recognized the key role of elections in the process of union self-government and surrounded it with many safeguards to provide a fair election and to guarantee membership participation.

The pervading premise of both these titles is that there should be full and active participation by the rank and file in the affairs of the union. We think our decision today that the vote of an elected delegate may reflect the size of his constituency is wholly consistent with that purpose.

Accordingly, the judgments below are reversed and the case is remanded for proceedings consistent with this opinion.

It is so ordered.

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

       73 Stat. 519, 522, 29 ü. S. C. § 411 (a) (3) (1958 ed., Supp. V).
      “(3) Dues, initiation fees, and'assessments. — Except in the case of a federation of national or international labor organizations, the rates of dues and initiation fees payable by members of any labor organization in effect on September 14, .1959 shah not be increased, and no general or special assessment shall be levied upon such members, except—
      “(A)-in thé case of a local labor organization, (i) by majority vote by secret ballot of the members in good standing voting at- a general or special membership meeting, after reasonable notice of the intention to vote upon such question, or (ii) by majority vote of the members in- good standing voting in a membership referendum conducted by secret ballot; or
      “ (B) in the case of, a labor organization, other than a local labor organization or .a federation of national or international labor organizations, (i) by majority vote of the delegates voting at a regular convention, or at a special convention of such labor organization held upon not less than thirty days’ written notice to the principal office of'each local or constituent labor organization entitled to such notice, or (ii) by majority vote of the members in good standing of such labor organization voting in a membership referendum conducted by secret ballot, or (iii) by majority vote of the members of the executive board or similar governing body of such labor organization, pursuant to express authority contained in the constitution and bylaws of such labor organization: Provided, That such action on the part of the executive board or similar governing body shall be effective only until the next regular convention, of such labor organization.”

       Article 5 of Federation’s constitution provides:
      “All Locals of this Federation of one hundred and fifty members or less shall be entitled to one delegate. All Locals shall be entitled to one delegate for each one hundred members or a major fraction thereof, not.exceeding three delegates for any one Local, but each Local shall be entitled to one vote for each one hundred or major fraction thereof, but no Local shall cast more than ten votes, and the number each Local is entitled to shall be computed from the last report made on January 1st before the convention by the Local, according to the books of the Treasurer. On questions affecting a change in the laws, each Local may, upon roll call, cast as many votes as it has members, as per book of the Treasurer, A. F. of M. All laws so passed shall be referred to a convention committee consisting of the Executive Board, A. F. of M., and chairmen of all committees, who may sanction or veto same, their action to be final. Roll call shall be demandable and had under this Article on demand of ten delegates or five Locals.”

       S. 1137, 86th Cong., 1st Sess., I Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, 260, 269, 278 (1959) (hereafter Leg. Hist.).
      Section 101 (5) of S. 1137 provided:
      “Freedom from arbitrary financial exactions. — Rules relating to the rate of dues and initiation fees, or the levying of any special or general assessment, may be adopted or amended only after due notice and by general vote.”
      Section 104 (2) of S. 1137 provided:
      “YotiNG at conventions. — All delegates elected or designated by the constituent units of an international labor organization ... to represent such constituent unit at any meeting or convention held by such labor organization shall have a vote in all elections for officers and upon other matters brought before such meeting or convention for action or ratification by vote, which vote shall be numerically equivalent, or proportionate, to the number of the members of such constituent unit as disclosed by the roster of members . . .

       The Select Committee on Improper Activities in the Labor and Management Field.

       That the findings of the McClellan Committee were significant in the drafting of the LMRDA is well reflected in the Committee Reports.
      “The committee reported bill is primarily designed to correct the abuses which have crept into labor and management and which have been the subject of investigation by the Committee on Improper Activities in the Labor and Management Field for the past several years. . . . The committee-reported bill is based on the legislation approved by the Senate last year and thus it too implements the remaining recommendations of the McClellan committee.” S. Rep. No. 187, 86th Cong., 1st Sess., at 2, I Leg. Hist. 397, 398.
      “The committee reported bill is primarily intended to correct the abuses which have crept into the labor and management field and which have been the subject of investigation by the Senate Committee on Improper Activities in the Labor and Management Field for the past several years.” H. R. Rep. No. 741, 86th Cong., 1st Sess., at 1,1 Leg. Hist. 759. See also 105 Cong. Rec. 15530, II Leg. Hist. 1566 (remarks of Congressman Griffin).

       Leiserson, American Trade Union Democracy 129-132 (1959).
      “Except in the few unions where locals are entitled to but one delegate with one vote, the number of votes in a convention is always greater than the number of delegates. Although proxy voting is generally prohibited (Longshoremen, and Blacksmiths are exceptions), every convention delegate casts not only his own vote, but a share of the voting strength of the local union he represents as well. This voting strength varies with the size of the locals, and the total vote of a local union may be divided among its delegates or one of them may cast all its votes. The basis of representation and the methods of basing voting strength on size of local memberships differ among the unions . . . .” Id., at 129-130.
      See also United States Department of Labor, Bulletin No. 1239, Union Constitution Provisions: Election and Tenure of National and International Union Officers, at 15 (1958); National Industrial Conference Board, Handbook of Union Government, Structure and Procedures, Studies in Personnel Policy, No. 150, at 73 (1955).

       S. 1555, 86th Cong., 1st Sess., I Leg. Hist. 338:

       105 Cong. Rec. 6475, II Leg. Hist. 1102.

       105 Cong. Rec. 6693-6694, 6727, II Leg. Hist. 1220-1221, 1239.

       105 Cong. Rec. 6719, II Leg. Hist. 1232.

       S. 1555, 86th Cong., 1st Sess., I Leg.

       Hearings before a Joint Subcommittee of the Committee on Education and Labor, House of Representatives, 86th Cong., 1st Sess., on H. R. 3540, H. R. 3302, H. R. 4473, and H. R. 4474 and Related Bills Regarding Labor-Management Reform Legislation.

        Id., at 1517-1518.

       H. R. 8342, 86th Cong., 1st Sess., I Leg. Hist. 687, 697.

       H. R. 8400, 86th Cong., 1st Sess., 105 Cong. Rec. 15859-15860, II Leg. Hist. 1527, 1691-1692.

       105 Cong. Rec. 15530, II Leg. Hist. 1566.

       H. R. Rep. No. 1147 on S. 1555, 86th Cong.,1st Sess., I Leg. Hist. 934r-935.

       105 Cong. Rec. 16487, II Leg. Hist. 1357.

       105 Cong. Rec. 16760, II Leg. Hist. 1373.

       See United States Department of Labor, Technical Assistance Aid No. 5, Electing Union Officers (rev. Sept. 1962).

       The Senate Committee, Report accompanying S. 1555 stated in this regard:
      “Under the NationalL^bor Relations Act and the Railway Labor Act, a labor organization has vast responsibility for economic welfare of the individual members whom it represents. Union members have a vital interest, therefore, in the policies and conduct of union affairs. To the extent that union procedures are democratic they, permit the individual to share in the formulation of union policy. This is not to say that in order to have democratically responsive unions, it is necessary to have each union member make decisions on detail as in a New England town meeting. What is required is the opportunity to influence policy and leadership by free and periodic elections.” S. Rep. No. 187, 86th Cong., 1st Sess., at 6-7, I Leg. Hist. 397, 402-403.


author:
Mr. Justice White
      Mr. Justice Harlan, Mr. Justice Stewart,

text:
    McLAUGHLIN et al. v. FLORIDA.
    No. 11.
    Argued October 13-14, 1964.
    Decided December 7, 1964.

      William, T. Coleman, Jr., and Louis H. Poliak argued the cause for appellants. With him on. the briefs were Jack Greenberg and James M. Nabrit III.

      James G. Mahorner, Assistant Attorney. General of Florida, argued "the cause for appellee. With him on the brief was James W. Kynes, Attorney General of Florida.
   Mr. Justice White

delivered the opinion of the Court.

At issue in this case is the validity of a conviction under § 798.05 of the Florida statutes, providing that:

“Any negro man and white woman, or any white man and negro woman, who -are not married to each other, who shall habitually live in and occupy in the nighttime the same room shall each be punished by imprisonment not exceeding twelve months,' or by fine not exceeding five hundred dollars.”

Because the section applies only to a white person and a Negro who .commit the specified acts and because no couple other than one made up of a white and a Negro is subject to conviction upon proof of the elements comprising the offense it proscribes, we hold § 798.05 invalid as a denial of the equal protection of the laws guaranteed by the Fourteenth Amendment.

The challenged statute is a part of chapter 798 entitled “Adultery and Fornication.” Section 798.01 forbids living in adultery and § 798.02 proscribes lewd cohabitation. Both sections are of general application, both require proof of intercourse to sustain a conviction, and both authorize imprisonment up to two years. Section 798.03, also of general application, proscribes fornication and authorizes a three-month jail sentence. The fourth section of the chapter, 798.04, makes criminal a white person and a Negro’s living together in adultery or fornication. A one-year prison sentence is authorized. The conduct it reaches appears to be the same as is proscribed under the first two sections of the chapter. Section 798.05, the section at issue in this case, applies only to a white person and a Negro who habitually occupy the same room at nighttime. This offense, however, is distinguishable from the other sections of the chapter in that it is the only one which does not require proof of intercourse along with the other elements of the crime.

Appellants were charged with a violation of § 798.05. The elements of the offense as described by the trial judge are the (1) habitual occupation of a room at night, (2) by a Negro and a white person (3) who are not married. The State presented evidence going to each factor, appellants’ constitutional contentions were overruled and the jury returned a verdict of guilty: Solely on the authority of Pace v. Alabama, 106 U. S. 583, the Florida Supreme Court affirmed and sustained the validity of § 798.05 as against appellants’ claims that the section denied them equal protection of the laws guaranteed by the Fourteenth Amendment. We noted probable jurisdiction, 377 U. S. 914. We deal with the single issue of equal protection and on this basis set aside these convictions.

I.

It is readily apparent that § 798.05 treats the interracial couple made up of a white person and a Negro differently than, it does any other couple. No couple other than a Negro and a white person can be convicted under § 798.05 and no other section proscribes the precise conduct banned by § 798.05. Florida makes no claim to the contrary in this Court. However, all whites and Negroes who engage in the forbidden conduct are covered by the section and each member of the interracial cbuple is subject to the same penalty.

In this situation, Pace v. Alabama, supra, is relied upon as controlling authority. In our view, however, Pace represents a limited view of the Equal Protection Clause which has not withstood analysis.in the subsequent decisions of this Court. In that case, the Court let stand a conviction under an Alabama statute forbidding adultery or fornication between a white pérson and a Negro and imposing a greater penalty than allowed under another Alabama statute of general application, and proscribing the same conduct whatever the race of the participants. The opinion acknowledged that the purpose of the Equal Protection Clause “was to prevent hostile and discriminating State legislation against any person or class of persons” and that equality of protection uiider the laws implies that any person,, “whatever his race .... shall not be subjected, for the same offence, to any greater or different punishment.” ' 106 U. S., at 584. But taking quite literally its own words, “for the same offence” (emphasis supplied), the Court pointed out that Alabama had designated as a separate offense the commission by a white person and a Negro of the identical acts forbidden by the general provisions. There was, therefore, no impermissible discrimination because the difference in punishment was “directed against the offence designated” and because in the case of each offense all who committed it, white and Negro, were treated ¿like. Under Pace the Alabama law regulating the conduct of both Negroes and whites satisfied the Equal Protection Clause since it applied equally to and among the . members of the class which it reached without regard to the fact that the statute did not reach other types of couples performing the identical conduct and without any necessity to justify the difference in penalty established for the.two offenses. Because each of the Alabama laws applied equally to those to whom it was applicable, the different treatment accorded interracial and intraracial couples was irrelevant.

This narrow view of the Equal Protection Clause was soon swept away. While acknowledging the currency of the view that “if the law deals alike with all of a certain class” it is not obnoxious to the Equal Protection Clause and that “as a general proposition, this is undeniably true,” the Court in Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 155, said that it was “equally true that such classification cannot be made arbitrarily. . . .” Classification “must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without any such basis.” Ibid. “[Arbitrary selection can never be justified by calling it classification.” Id., at 159. This approach was confirmed in Atchison, T. & S. F. R. Co. v. Matthews, 174 U. S. 96, 104-105, and in numerous other cases. See, e. g., American Sugar Ref. Co. v. Louisiana, 179 U. S. 89, 92; Southern R. Co. v. Greene, 216 U. S. 400, 417; F. S. Royster Guano Co. v. Virginia, 253 U. S. 412, 415; Air-Way Elec. Appliance Corp. v. Day, 266 U. S. 71, 85; Louisville Gas.& Elec. Co. v. Coleman, 277 U. S. 32, 37-39; Hartford Steam Boiler Inspection & Ins. Co. v. Harrison, 301 U. S. 459, 461-463; Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 541-543; Kotch v. Pilot Comm’rs, 330 U. S, 552, 556-557; Hernandez v. Texas, 347 U. S. 475, 478; Griffin v. Illinois, 351 U. S. 12, 17-19 (opinion of Black, J., announcing judgment), 21-22 (Frankfurter, J., concurring); Morey v. Doud, 354 U. S. 457, 465-466; Central R. Co. v. Pennsylvania, 370 U. S. 607, 617-618; Douglas v. California, 372 U. S. 353, 356-357.

Judicial inquiry under the Equal Protection Clause, therefore, does not end with a showing of equal application among the members of the class defined by the legislation. The courts must reach and determine the question whether the classifications drawn in a statute are reasonable, in fight of its purpose — in this case, whether there is an arbitrary or invidious discrimination between those classes covered by Florida’s cohabitation law and those excluded. That question is what Pace ignored and what must be faced here.

Normally,,the widest discretion is fallowed the legislative judgment in determining whether to attack some, rather than all, of the manifestations of the evil aimed at; and normally that judgment is given the benefit of every conceivable circumstance which might suffice to characterize the classification as reasonable rather than arbitrary and invidious. See, e. g., McGowan v. Maryland, 366 U. S. 420, 425-426; Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U. S. 582, 591-592; Allied Stores of Ohio, Inc. v. Bowers, 358 U. S. 522, 528; Railway Express Agency, Inc. v. New York, 336 U. S. 106, 110; Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 78-79. But we deal here with a classification based upon the race of the participants, which must be viewed in light of the historical fact that the central purpose of the Fourteenth Amendment was to eliminate racial discrimination emanating from official sources in the States. This strong policy renders racial classifications “constitutionally suspect,” Bolling v. Sharpe, 347 U. S. 497, 499; and subject to the “most rigid scrutiny,” Korematsu v. United States, 323 U. S. 214, 216; and “in most circumstances irrelevant” to any constitutionally acceptable legislative purpose, Hirabayashi v. United States, 320 U. S. 81, 100. Thus it is that racial classifications have been held invalid in a variety of contexts. See, e. g., Virginia Board of Elections v. Hamm, 379 U. S. 19 (designation of race in voting and property records); Anderson v. Martin, 375 U. S. 399 (designation óf race on nomination papers and ballots); Watson v. City of Memphis, 373 U. S. 526 (segregation in public parks and playgrounds); Brown v. Board of Education, 349 U. S. 294 (segregation in public schools).

We deal here with a racial classification embodied in a criminal statute. In this context, where the power of the State weighs most heavily upon the individual or the group, we must be especially sensitive to the policies of the Equal Protection Clause which, as reflected in congressional enactments dating from 1870, were intended to secure “the full and equal benefit of all laws and proceedings for the security of persons and property” and to subject all persons “to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.” R. S. § 1977, 42 TJ. S. C. § 1981 (1958 ed.).

Our inquiry, therefore, is whether there clearly appears in the relevant materials some overriding statutory purpose requiring the proscription of the specified conduct when engaged in by a white person and a Negro, but not otherwise. Without such justification the racial classification contained in § 798.05 is reduced to an invidious' discrimination forbidden by the Equal Protection Clause.

The Florida Supreme Court, relying upon Pace v. Alabama, supra, found no legal discrimination at all and gave no consideration to statutory purpose. The State in its brief in this Court, however, says that the legislative purpose of § 798.05, like the other séctions of chapter 798, was to prevent breaches of the basic concepts of sexual decency; and we see no reason to quarrel with the State’s characterization of this statute, dealing as it does with illicit extramarital and premarital promiscuity.

We find nothing in this suggested legislative purpose, however, which makes it essential to punish promiscuity of one racial group and not that of another. There is no suggestion that a white person and a Negro are any more, likely habitually to occupy the same room together than the white or the Negro couple or to engage in illicit intercourse if they do. Sections 798.01-798.05 indicate no legislative conviction that promiscuity by the interracial couple presents any particular problems requiring separate or different treatment if the suggested over-all policy of the chapter is to beadequately served. Sections 798.01-798.03 deal with adultery, lewd cohabitation and fornication, in that order. All are of general application. Section 798.04 prohibits a white and a Negro from living in a state of adultery or fornication and imposes a lesser period of imprisonment than does either § 798.01 or § 798.02, each of which is applicable to all persons. . Simple fornication by the interracial couple is covered only by the general provision of § 798.03. This is not, therefore, a case where the class defined in the law is that from which “the evil mainly is to be feared,” Patsone v. Pennsylvania, 232 U. S. 138, 144; or where the “[e]vils in the same field may be of different dimensions and proportions, requiring different remedies,” Williamson v. Lee Optical Co., 348 U. S. 483, 489; or even one where the State has done as much as it can as fast as it can, Buck v. Bell, 274 U. S. 200, 208. That a general evil will be partially corrected may at times, and without more, serve to justify the limited application of a criminal law; but legislative discretion to employ the piecemeal approach stops short of permitting a State to narrow statutory coverage to focus on a racial group. Such classifications bear a far heavier burden of justification. “When the law lays an unequal hand bn those who have committed intrinsically the same quality of offense and sterilizes one and not the other, it has made as invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment. Yick Wo v. Hopkins [118 U. S. 356]; Gaines v. Canada, 305 U. S. 337.” Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 541.

II.

Florida’s remaining argument is related to . its law against interracial marriage, Fla. Stat. Ann. § 741.11, which, in the light of certain legislative history of the Fourteenth Amendment, is said to be immune from attack under the Equal Protection Clause. Its interracial . cohabitation law, § 798.05, is likewise valid, it is argued, because it is ancillary to and serves-the same purpose as the miscegenation law itself.

We reject this argument, without reaching the question of the validity of the State’s prohibition against interracial marriage or the soundness of the arguments rooted in the history of the Amendment. For even if we posit the constitutionality of the ban against the marriage of a Negro and a white, it-does not follow that the cohabitation law is not to be subjected to independent examination under the Fourteenth Amendment. “[Ajssuming, for purposes of argument only, that the basic prohibition is constitutional,” in this case the law against interracial marriage, “it does not follow that there is no constitutional limit, to the means which may be used to enforce •it.” Oyama v. California, 332 U. S. 633, 646-647. See also Buchanan v. Warley, 245 U. S. 60, 81. Section 798.06 must therefore itself pass muster- under'the Fourteenth Amendment; and for reasons quite similar to those already given, we think it fails the test.

There is involved here an exercise of the state police power which trenches upon the constitutionally protected freedom from invidious official discrimination based on race. Such a law, even though enacted pursuant to a valid state interest, bears a heavy burden of justification, as we have said, and will be upheld only if it is necessary, and not merely rationally related, to the accomplishment of a permissible state policy. See the cases cited, supra, p. 192. Those provisions of chapter 798 which are neutral as to race express a general and strong state policy against promiscuous conduct, whether engaged in by those who are married, those who may marry or those who may not. These provisions, if enforced, would reach illicit relations of any kind and in this way protect the integrity of the marriage laws of the State, including what is claimed to be a valid ban on interracial marriage. These same provisions, moreover, punish premarital sexual relations as severely or more .severely in some instances than do those provisions which focus on the interracial couple. Florida has offered no argument that the State’s policy against interracial marriage cannot be as adequately served by the general, neutral, and existing ban on illicit behavior as by a provision such as § 798.05 which singles out the promiscuous interracial couple for special statutory treatment.' In short, it has not been shown that § 798.05 is a necessary adjunct to the State’s ban on interracial marriage. We accordingly invalidate § 798.05 without expressing any views about the State’s prohibition of interracial marriage, and reverse these convictions.

Reversed.

Mr. Justice Harlan,

concurring.

I join the Court’s opinion with the following comments.

I agree with the Coui*t that the cohabitation statute has not been shown to be necessary to the integrity of the antimarriage law, assumed arguendo to be valid, and that necessity, not mere reasonable relationship, is the proper test, see ante, pp. 195-196. NAACP v. Alabama, 377 U. S. 288, 307-308; Saia v. New York, 334 U. S. 558, 562; Martin v. Struthers, 319 U. S. 141, 147; Thornhill v. Alabama, 310 U. S. 88, 96; Schneider v. State, 308 U. S. 147, 161, 162, 164; see McGowan v. Maryland, 366 U. S. 420, 466-467 (Frankfurter, J., concurring).

The fact that these cases arose under the principles of the First Amendment does not make them inapplicable, here. Principles of free speech are carried to the States only through the Fourteenth Amendment. The necessity test which developed to protect free speech against state infringement should be equally applicable in a case involving state racial discrimination — prohibition of which lies at the very heart of the Fourteenth Amendment. Nor does the fact that these cases all involved what the Court deemed to be a constitutionally excessive exercise of legislative power relating to a single state policy, whereas this case involves two legislative policies — prevention of extramarital relations and prevention of miscegenation — effectuated by separate statutes, serve to vitiate the soundness of the Court’s conclusion that the validity of the State’s antimarriage law need not be decided in this case. If the legitimacy of the cohabitation statute is considered to depend upon its being ancillary to the antimarriage statute, the former must be deemed “unnecessary” under the principle established by the cited cases in light of the nondiscriminatory extramarital relations statutes. If, however, the interracial cohabitation statute is considered to rest upon a discrete state interest, existing independently of the antimarriage law, it falls of its own weight.

Mr. Justice Stewart,

with whom Mr. Justice Douglas joins,

concurring.

I concur in the judgment and agree with most of what is said in the Court’s opinion. But the Court implies that a criminal law of the kind here involved might be constitutionally valid if a State could show “some over* riding statutory purpose.” This is an implication in which I cannot join, because I cannot conceive of a valid legislative purpose under our Constitution for a state law which makes the color of a person’s skin the test of whether his conduct is a criminal offense. These appellants were convicted, fined, and imprisoned under a statute which made their conduct criminal only because they were of different races. So far as this statute goes, their conduct would not have been illegal had they both been white, or both -Negroes. There might be limited room under the Equal Protection Clause for a civil law requiring the keeping of racially segregated public records for statistical or other valid public purposes. Cf. Tancil v. Woolls, ante, at 19. But we deal here with a criminal law which imposes criminal punishment. And I think it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor. Discrimination of that kind is invidious per se.

       Fla. Stat. Ann. § 798.01 — Living in open adultery:
      “Whoever lives in an open state of adultery shall be punished by imprisonment in the state prison not exceeding two years, or in the county jail not exceeding one year, or by fine not exceeding five hundred dollars. Where either of the parties living in an open state of adultery is married, both parties so living shall be deemed to be guilty of the offense provided for in this section.”
      Fla. Stat. Ann. § 798.02 — Lewd and lascivious behavior:
      “If any man and woman, not being married to each other, lewdly and lasciviously associate and cohabit together, or if any man ór' woman, married or unmarried, is guilty of open and gross lewdness and lascivious behavior, they shall be punished by imprisonment-in the state prison not exceeding two years, or in the county jail not exceeding one year, or by fine not exceeding three hundred dollars.”
      Fla. Stat. Ann. § 798.03 — Fornication:
      “If any man commits fornication with a woman, each of them shall be punished by imprisonment not exceeding three months, or by fine not exceeding thirty dollars.”
      Fla. Stat. Ann. §798.04 — White'1 persons and Negroes living in adultery:
      “If any white person and negro, or mulatto, shall five in adultery or fornication with each other, each shall be punished by imprisonment not exceeding twelve months, or by fine not exceeding one thousand dollars.”
      Fla. Stat. Ann. § 798.05 — Negro man and white woman or white man and Negro woman occupying same room:
      “Any negro man and white woman, or any white man and negro woman, who are not married to each other, who shall habitually live in and occupy in the nighttime the same room shall each be punished by imprisonment not exceeding twelve months, or by fine not exceeding five hundred dollars.”

       Section 798.02 proscribes two offenses: (1) open, arid gross lewdness and lascivious behavior by either a man or a woman; (2) lewd and lascivious association and cohabitation by a man and woman. The latter offense is identical to that proscribed by § 798.01, except that § 798.01 contains the additional requirement that one of the participants be married to a third party. Conviction under either section requires a showing that, the parties lived together and maintained sexual relations over a period of time as in the conjugal relation between husband and wife. Braswell v. State, 88 Fla. 183, 101 So. 232 (1924), Lockhart v. State, 79 Fla. 824, 85 So. 153 (1920) (both cases involving what is now §798.01); Wildman v. State, 157 Fla. 334, 25 So. 2d 808 (1946), Benton v. State, 42 Fla. 560, 28 So. 774 (1900) (cases involving, respectively, §798.02 and what is now that statute).

       Unlike all the other sections of chapter 798, § 798.03 does not relate only to habitual conduct. It proscribes single and occasional acts of fornication.' See Collins v. State, 83 Fla. 458, 92 So. 681 (1922).

       We have not found any decisions construing § 798.04. Its operative language, “live in adultery or fornication,” is substantially identical to the phrase “lives in an open state of adultery” in § 798.01, which has been construed to mean habitual conduct. That language sharply contrasts with the phrase “commits fornication” in § 798.03, which proscribes casual acts of fornication. Textual analysis therefore leads us to conclude that the Florida courts would give § 798.04 a similar construction to that accorded §§ 798.01 and 798.02. This conclusion that § 798.04 is duplicative of other provisions is consistent with the apparent lack of prosecutions under § 798.04.

        Parramore v. State, 81 Fla. 621, 88 So. 472 (1921). Compare note 2, suprn.

       Appellants present-two other contentions which it is unnecessary for us to consider in view, of our disposition of their principal claim. First, they challenge the constitutionality of Fla. Stat. Ann. § 741.11— Marriages between white and Negro persons prohibited:
      “It is unlawful for any white male person residing or being in this state to intermarry with any negro female person; and it is in like manner unlawful for any white female person residing or being in this state to intermarry with any negro male person; and every marriage formed or solemnized in contravention of the provisions of this section shall be utterly null and void . . .

      The basis for appellants' complaint regarding this statute is that in charging the jury with respect to appellants’ defense of common-law marriage the trial judge stated, without objection by appellants, that because of § 741:11 it would have been unlawful for appellants to have entered into a common-law marriage in Florida. Appellants contend that this application of the marriage statute was a denial of due process and equal protection secured by the Fourteenth Amendment.
      Appellants’ final claim is that their convictions violated due process either because there was no proof of appellant McLaughlin’s race or because the Florida definition of “Negro” is unconstitutionally vague. Fla. Stat. Ann. § 1.01 (6) provides: “The words.‘negro,’.‘colored,’ 'colored persons,’ ‘mulatto’ or ‘persons of color,’ when applied to persons, include every person having one-éighth or more' of African or negro blood.” At the trial one of . the arresting officers was permitted, over objection, to state his conclusion as to the race of each appellant based on his observation of their physical appearance. Appellants claim that the statutory definition is circular in- that it provides no independent means of determining the race of a defendant’s ancestors and that testimony based on appearance is impermissible because not related to any objective standard. Florida argues that under Florida appellate procedure this claim was abandoned when the appellants failed to argue it in the brief they presented to the Florida Supreme Court.

       “The defect in the argument of counsel consists in his assumption that any discrimination is made by the laws of Alabama in the punishment provided for the offence for which the plaintiff in error was indicted when committed by a person of the African race and when committed by a white person. The two sections of the code cited are entirely consistent. The one prescribes, generally, a punishment for an offence committed between persons of different sexes; the other prescribes a punishment for an offence which can only be committed where the two sexes are of different races. There is in neither section any discrimination against either race. Sect. 4184 equally includes the offence when the persons of .the two sexes are both white and when they are both black. Sect. 4189 applies the same punishment to both offenders, the white and the black. Indeed, the offence against which this latter section is aimed cannot be committed without involving the persons of both races in the same punishment. Whatever discrimination ,is made in the punishment prescribed in the two sections is directed against the offence designated and not against the person of any particular color or race. The punishment of each offending person, whether white or black, is the same.” 106 U. S., at 585.

       Had the Court been presented with a statute that,- for example, prohibited any Negro male from having carnal knowledge of a white . female and penalized only the Negro, such a statute would unquestionably have been held to deny equal protection even though it applied equally to all to whom it applied. See Strauder v. West Virginia, 100 U. S. 303, 306-308; Ho Ah Kow v. Nunan, 12 Fed. Cas. 252 (No. 6546) (C. C. D. Cal. 1879) (Field, J.) (“Chinese Pigtail” case). Because of the manifest inadequacy of any approach requiring only equal application to the class defined in the statute, one may conclude that in Pace the Court actually ruled sub silentio that the (different treatment meted out to interracial and intraracial couples was based on a reasonable legislative purpose. If the Court did reach that conclusion it failed to articulate it or to give its reasons, and for the reasons stated infra we reject the contention presented here that the criminal statute presently under review is grounded in a reasonable legislative policy.

       The Pace holding itself may have undergone some modification when- the Court a few years later cited it for the proposition “that a different punishment for the same offence may be inflicted-under particular circumstances, provided it is dealt out to all alike who are similarly situated.” Moore v. Missouri, 159 U. S. 673, 678.

       “Section 798.05, Florida Statutes, under which the defendants were charged, simply prohibits habitual cohabiting of the same room by members of opposite races who are also members of opposite sexes. The terms of Section 798.05, supra, explicitly seek to avoid circumstances wherein there are high potentials of sexual engagement. . . . Section 798.02, Florida Statutes, which prohibits'intra-racial lewd cohabitation, has generally been interpreted as requiring the additional element of sexual occurrence as distinguished from the provisions of Section 798.05, supra, which only require a high potential of such occurrence. The legislative purpose in enacting both Sections 798.02 and 798.05, supra, is to prevent illegal sexual occurrences. . .. The purpose of the legislature in enacting both Sections 798.02 and 798.05, Florida Statutes, was to prevent such breaches of basic concepts of sexual decency whether committed by interracial or intra-racial parties.” Brief for Appellee, 55-56.

       In the Skinner case the Court invalidated on equal-protection grounds Oklahoma’s law providing for the sterilization of multiple offenders but exempting offenses arising out of the prohibition laws, the revenue acts, embezzlement or political offenses. The Court said:
      “Oklahoma makes no attempt to say that he who commits larceny by trespass or trick or fraud has biologically inheritable traits which he who commits embezzlement lacks. Oklahoma’s line between larceny by fraud and embezzlement is determined, as we have noted, ‘with reference to the time when the fraudulent intent to convert the property to the taker’s own use’ arises. Riley v. State, supra, 64 Okla. Cr. at p. 189, 78 P. 2d p. 715. We have not the slightest basis for inferring, that that line has any significance in eugenics, nor that the inheritability of criminal traits follows the neat legal distinctions which the law has marked between those two offenses. In terms' of fines and imprisonment, the crimes of larceny - and embezzlement rate the same under the Oklahoma code. Only when it comes to sterilization are the pains and penalties of the law different. The equal protection clause would indeed be a formula of empty words if such conspicuously artificial lines could be drawn.” 316 U. S.,at 541-542.

       See note 6, supra. See also Fla. Const., Art. 16, § 24.

      Since I think this criminal law is clearly invalid under the Equal Protection Clause of the Fourteenth Amendment, I do not consider the impact of the Due Process Clause of that Amendment, npr of the Thirteenth and Fifteenth Amendments.


author: Per Curiam.

text:
    RAILWAY LABOR EXECUTIVES’ ASSOCIATION et al. v. UNITED STATES et al.
    No. 130.
    Decided December 7, 1964.

      Clarence M. Mulhollarid, Edward J. Hickey, Jr., James L. Highsaw, Jr., William Gi Mahoney. and William H. King for appellants.

      Solicitor General Cox, Assistant Attorney General Orrick, Philip B. Heymann, Robert B. Hummel and Elliott Moyer for the United States; Robert W. Ginnane and Leonard S. Goodman for Interstate Commerce Commission; and Hugh B. Cox, W. Graham Claytor, Jr., and Richard S. Arnold for Southern Railway Co. et al., appellees.
   Per Curiam.

This appeal is from a judgment of a three-judge District Court, 226 F. Supp. 521, dismissing appellants’ complaint to set aside orders of the Interstate Commerce Commission, 317 I. C. C. 557, 729, relating to the Southern Railway Company’s acquisition of control through stock, ownership of the Central of Georgia Railway Company. Appellants, representing railway employees, object that under the Commission’s orders, the employees are not protected as provided by §§ 4, 5, and 0 of the Washington Job Protection- Agreement. We agree with the suggestion of the Solicitor General that this case should be remanded to the Interstate Commerce Commission for clarification of its orders insofar as they relate to the agreement. For this reason, the motion of the Interstate Commerce Commission to affirm the judgment of the District Court is denied. The motion of intervenor-appellees Southern Railway Company and Central of Georgia Railway Company to defer consideration of the jurisdictional statement is denied. Appellants’ motion to limit the appeal to questions related to §§ 4, 5, and 9 of' the Washington Job Piocection Agreement is granted. The judgment oí the District Court is vacated insofar as it relates to §§ 4, 5, and 9 of the Washington Agreement, and this case is remanded to that court with instructions to remand it to the Interstate Commerce Commission with instructions to amend its reports and orders as necessary to deal with appellants’ request that § § 4, 5, and 9 be included as protective conditions, specifically indicating why each of these provisions is either omitted or included. See United States v. Chicago, M., St. P. & Pac. R. Co., 294 U. S. 499, 511.

Vacated and remanded.


text:
    MOITY v. LOUISIANA.
    No. 337.
    Decided December 7, 1964.

      Bentley G. Byrnes for appellant.

      Jack P. F. Gremillion, Attorney General of Louisiana, and M. E. Culligan, Assistant Attorney General, for appellee.
   Per Curiam.

The judgment is reversed. Garrison v. Louisiana, ante, p. 64.


text:
    MUTTER v. WISCONSIN.
    No. 495.
    Decided December 7, 1964.

      Roger C. Minaban for appellant.

      George Thompson, Attorney General of Wisconsin, and Roy G. Tulane and Robert D. Martinson, Assistant Attorneys General, for appellee.
   Per Curiam.

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


text:
    CROSS et al. v. BRUNING et al.
    No. 436,
    Misc.
    Decided December 7, 1964.
   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.

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