author: Mr. Justice Douglas Mr. Justice Fortas, Mr. Justice Marshall,

text:
    UNITED STATES v. CONTAINER CORPORATION OF AMERICA et al.
    No. 27.
    Argued November 18, 1968.
    Decided January 14, 1969.

      Assistant Attorney General Zimmerman argued the cause for the United States. With him on the brief were Solicitor General Griswold, Lawrence G. Wallace, Lewis Bernstein, and Wharey M. Freeze.

      Whitney North Seymour argued the cause for appel-lees. With him on the brief were William J. Manning and James W. Harbison, Jr., for Container Corporation of America, Joseph C. Carter, Jr., for Albemarle Paper Manufacturing Co. et al., W. P. Sandridge and W. F. Womble for Carolina Container Co., Helmer R. Johnson for Continental Can Co., Inc., Howard T. Milman and Robert D. Krumme for Crown Zellerbach Corp., David J. Mays for Dixie Container Corp. et al., Alan W. Boyd and Louis A. Highmark for Inland Container Corp., Lawrence E. Walsh and Henry L. King for International Paper Co., Ford W. Ekey and Jon M. Sebaly for the Mead Corp., Fred E. Fuller and James A. Sprunk for Owens-Illinois Glass Co., Richard A. Whiting for St. Joe Paper Co., Horace R. Lamb and H. Richard Wachtel for St. Regis Paper Co., James H. Epps, Jr., for Tri-State Container Corp., James R. Withrow, Jr., for Union Bag-Camp Paper Co., and E. Nobles Lowe for West Virginia Pulp & Paper Co.
   Mr. Justice Douglas

delivered the opinion of the Court.

This is a civil antitrust action charging a price-fixing agreement in violation of § 1 of the Sherman Act. 26 Stat. 209, as amended, 15 U. S. C. § 1. The District Court dismissed the complaint. 273 F. Supp. 18. The case is here on appeal, 15 U. S. C. § 29; and we noted probable jurisdiction. 390 U. S. 1022.

The case as proved is unlike any other price decisions we have rendered. There was here an exchange of price information but no agreement to adhere to a price schedule as in Sugar Institute v. United States, 297 U. S. 553, or United States v. Socony-Vacuum Oil Co., 310 U. S. 150. There was here an exchange of information concerning specific sales to identified customers, not a statistical report on the average cost to all members, without identifying the parties to specific transactions, as in Maple Flooring Mfrs. Assn. v. United States, 268 U. S. 563. While there was present here, as in Cement Mfrs. Protective Assn. v. United States, 268 U. S. 588, an exchange of prices to specific customers, there was absent the controlling circumstance, viz., that cement manufacturers, to protect themselves from delivering to contractors more cement than was needed for a specific job and thus receiving a lower price, exchanged price information as a means of protecting their legal rights from fraudulent inducements to deliver more cement than needed for a specific job.

Here all that was present was a request by each defendant of its competitor for information as to the most recent price charged or quoted, whenever it needed such information and whenever it was not available from another source. Each defendant on receiving that request usually furnished the data with the expectation that it would be furnished reciprocal information when it wanted it. That concerted action is of course sufficient to establish the combination or conspiracy, the initial ingredient of a violation of § 1 of the Sherman Act.

There was of course freedom to withdraw from the agreement. But the fact remains that when a defendant requested and received price information, it was affirming its willingness to furnish such information in return.

There was to be sure an infrequency and irregularity of price exchanges between the defendants; and often the data were available from the records of the defendants or from the customers themselves. Yet the essence of the agreement was to furnish price information whenever requested.

Moreover, although the most recent price charged or quoted was sometimes fragmentary, each defendant had the manuals with which it could compute the price charged by a competitor on a specific order to a specific customer.

Further, the price quoted was the current price which a customer would need to pay in order to obtain products from the defendant furnishing the data.

The defendants account for about 90% of the shipment of corrugated containers from plants in the Southeastern United States. While containers vary as to dimensions, weight, color, and so on, they are substantially identical, no matter who produces them, when made to particular specifications. The prices paid depend on price alternatives. Suppliers when seeking new or additional business or keeping old customers, do not exceed a competitor’s price. It is common for purchasers to buy from two or more suppliers concurrently. A defendant supplying a customer with containers would usually quote the same price on additional orders, unless costs had changed. Yet where a competitor was charging a particular price, a defendant would normally quote the same price or even a lower price.

The exchange of price information seemed to have the effect of keeping prices within a fairly narrow ambit. Capacity has exceeded the demand from 1955 to 1963, the period covered by the complaint, and the trend of corrugated container prices has been downward. Yet despite this excess capacity and the downward trend of prices, the industry has expanded in the Southeast from 30 manufacturers with 49 plants to 51 manufacturers with 98 plants. An abundance of raw materials and machinery makes entry into the industry easy with an investment of $50,000 to $75,000.

The result of this reciprocal exchange of prices was to stabilize prices though at a downward level. Knowledge of a competitor’s price usually meant matching that price. The continuation of some price competition is not fatal to the Government’s case. The limitation or reduction of price competition brings the case within the ban, for as we held in United States v. Socony-Vacuum Oil Co., supra, at 224, n. 59, interference with the setting of price by free market forces is unlawful per se. Price information exchanged in some markets may have no effect on a truly competitive price. But the corrugated container industry is dominated by relatively few sellers. The product is fungible and the competition for sales is price. The demand is inelastic, as buyers place orders only for immediate, short-run needs. The exchange of price data tends toward price uniformity. For a lower price does not mean a larger share of the available business but a sharing of the existing business at a lower return. Stabilizing prices as well as raising them is within the ban of § 1 of the Sherman Act. As we said in United States v. Socony-Vacuum Oil Co., supra, at 223, “in terms of market operations stabilization is but one form of manipulation.” The inferences are irresistible that the exchange of price information has had an anticompetitive effect in the industry, chilling the vigor of price competition. The agreement in the present case, though somewhat casual, is analogous to those in American Column & Lumber Co. v. United States, 257 U. S. 377, and United States v. American Linseed Oil Co., 262 U. S. 371.

Price is too critical, too sensitive a control to allow it to be used even in an informal manner to restrain competition.

Reversed.

Mr. Justice Fortas,

concurring.

I join in the judgment and opinion of the Court. I do not understand the Court’s opinion to hold that the exchange of specific information among sellers as to prices charged to individual customers, pursuant to mutual arrangement, is a per se violation of the Sherman Act.

Absent per se violation, proof is essential that the practice resulted in an unreasonable restraint of trade. There is no single test to determine when the record adequately shows an “unreasonable restraint of trade”; but a practice such as that here involved, which is adopted for the purpose of arriving at a determination of prices to be quoted to individual customers, inevitably suggests the probability that it so materially interfered with the operation of the price mechanism of the marketplace as to bring it within the condemnation of this Court’s decisions. Cf. Sugar Institute v. United States, 297 U. S. 553 (1936); American Column & Lumber Co. v. United States, 257 U. S. 377 (1921).

Theoretical probability, however, is not enough unless we are to regard mere exchange of current price information as so akin to price-fixing by combination or conspiracy as to deserve the per se classification. I am not prepared to do this, nor is it necessary here. In this case, the probability that the exchange of specific price information led to an unlawful effect upon prices is adequately buttressed by evidence in the record. This evidence, although not overwhelming, is sufficient in the special circumstances of this case to show an actual effect on pricing and to compel us to hold that the court below erred in dismissing the Government’s complaint.

In summary, the record shows that the defendants sought and obtained from competitors who were part of the arrangement information about the competitors’ prices to specific customers. “[I]n the majority of instances,” the District Court found, 273 F. Supp. 18, 27, that once a defendant had this information he quoted substantially the same price as the competitor, although a higher or lower price would “occasionally” be quoted. Thus the exchange of prices made it possible for individual defendants confidently to name a price equal to that which their competitors were asking. The obvious effect was to “stabilize” prices by joint arrangement — at least to limit any price cuts to the minimum necessary to meet competition. In addition, there was evidence that, in some instances, during periods when various defendants ceased exchanging prices exceptionally sharp and vigorous price reductions resulted.

On this record, taking into account the specially sensitive function of the price term in the antitrust equation, I cannot see that we would be justified in reaching any conclusion other than that defendants’ tacit agreement to exchange information about current prices to specific customers did in fact substantially limit the amount of price competition in the industry. That being so, there is no need to consider the possibility of a per se violation.

Mr. Justice Marshall,

with whom Mr. Justice Harlan and Mr. Justice Stewart join, dissenting.

I agree with the Court’s holding that there existed an agreement among the defendants to exchange price information whenever requested. However, I cannot agree that that agreement should be condemned, either as illegal per se, or as having had the purpose or effect of restricting price competition in the corrugated container industry in the Southeastern United States.

Under the antitrust laws, numerous practices have been held to be illegal per se without regard to their precise purpose or harm. As this Court said in Northern Pacific R. Co. v. United States, 356 U. S. 1, 5 (1958), “there are certain agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use.” Among these practices are price-fixing, United States v. Socony-Vacuum Oil Co., 310 U. S. 150, 223 (1940); division of markets, United States v. Addyston Pipe & Steel Co., 85 F. 271 (C. A. 6th Cir. 1898), aff’d, 175 U. S. 211 (1899); group boycotts, Fashion Originators’ Guild v. FTC, 312 U. S. 457 (1941); and tying arrangements, International Salt Co. v. United States, 332 U. S. 392 (1947). We have recently added to this list certain sales-commission systems for the marketing of tires, batteries, and accessories by service stations affiliated with major oil companies. FTC v. Texaco Inc., ante, p. 223 (1968). This Court has refused to apply a per se rule to exchanges of price and market information in the past. See American Column & Lumber Co. v. United States, 257 U. S. 377 (1921); United States v. American Linseed Oil Co., 262 U. S. 371 (1923); Maple Flooring Mfrs. Assn. v. United States, 268 U. S. 563 (1925); Cement Mfrs. Protective Assn. v. United States, 268 U. S. 588 (1925). I believe we should follow the same course in the present case.

Per se rules always contain a degree of arbitrariness. They are justified on the assumption that the gains from imposition of the rule will far outweigh the losses and that significant administrative advantages will result. In other words, the potential competitive harm plus the administrative costs of determining in what particular situations the practice may be harmful must far outweigh the benefits that may result. If the potential benefits in the aggregate are outweighed to this degree, then they are simply not worth identifying in individual cases.

I do not believe that the agreement in the present case is so devoid of potential benefit or so inherently harmful that we are justified in condemning it without proof that it was entered into for the purpose of restraining price competition or that it actually had that effect. The agreement in this case was to supply, when requested, price data for identified customers. Each defendant supplied the necessary information on the expectation that the favor would be returned. The nature of the exchanged information varied from case to case. In most cases, the price obtained was the price of the last sale to the particular customer; in some cases, the price was a current quotation to the customer. In all cases, the information obtained was sufficient to inform the defendants of the price they would have to beat in order to obtain a particular sale.

Complete market knowledge is certainly not an evil in perfectly competitive markets. This is not, however, such a market, and there is admittedly some danger 'that price information will be used for anticompetitive purposes, particularly the maintenance of prices at a high level. If the danger that price information will be so used is particularly high in a given situation, then perhaps exchange of information should be condemned.

I do not think the danger is sufficiently high in the present case. Defendants are only 18 of the 51 producers of corrugated containers in the Southeastern United States. Together, they do make up 90% of the market and the six largest defendants do control 60% of the market. But entry is easy; an investment of $50,000 to $75,000 is ordinarily all that is necessary. In fact, the number of sellers has increased from 30 to the present 51 in the eight-year period covered by the complaint. The size of the market has almost doubled because of increased demand for corrugated containers. Nevertheless, some excess capacity is present. The products produced by defendants are undifferentiated. Industry demand is inelastic, so that price changes will not, up to a certain point, affect the total amount purchased. The only effect of price changes will be to reallocate market shares among sellers.

In a competitive situation, each seller will cut his price in order to increase his share of the market, and prices will ultimately stabilize at a competitive level— i. e., price will equal cost, including a reasonable return on capital. Obviously, it would be to a seller’s benefit to avoid such price competition and maintain prices at a higher level, with a corresponding increase in profit. In a market with very few sellers, and detailed knowledge of each other’s price, such action is possible. However, I do not think it can be concluded that this particular market is sufficiently oligopolistic, especially in light of the ease of entry, to justify the inference that price information will necessarily be used to stabilize prices. Nor do I think that the danger of such a result is sufficiently high to justify imposing a per se rule without actual proof.

In this market, we have a few sellers presently controlling a substantial share of the market. We have a large number competing for the remainder of the market, also quite substantial. And total demand is increasing. In such a case, I think it just as logical to assume that the sellers, especially the smaller and newer ones, will desire to capture a larger market share by cutting prices as it is that they will acquiesce in oligopolistic behavior. The likelihood that prices will be cut and that those lower prices will have to be met acts as a deterrent to setting prices at an artificially high level in the first place. Given the uncertainty about the probable effect of an exchange of price information in this context, I would require that the Government prove that the exchange was entered into for the purpose of, or that it had the effect of, restraining price competition.

1 do not find the inference that the exchange of price information has had an anticompetitive effect as “irresistible” as does the Court. Like my Brother Fortas, I would prefer that a finding of anticompetitive effect be supported by “evidence in the record.” I cannot agree that the evidence in this case was sufficient to prove such an effect. The Government has simply not proved its case.

The Court does not hold that the agreement in the present case was a deliberate attempt to stabilize prices. The evidence in the case, largely the result of stipulation, would not support such a holding. The Government points to a few isolated statements found in the depositions of industry witnesses, but I find these few fragmentary references totally insufficient. The weight of the evidence in the present case indicates that the price information was employed by each defendant on an individual basis, and was used by that defendant to set its prices for a specific customer; ultimately each seller wanted to obtain all or part of that customer’s business at the expense of a competitor. The District Court found that there was no explicit agreement among defendants to stabilize prices and I do not believe that the desire of a few industry witnesses to use the information to minimize price cuts supports the conclusion that such an agreement was implicit. On the contrary, the evidence establishes that the information was used by defendants as each pleased and was actually employed for the purpose of engaging in active price competition.

Nor do I believe that the Government has proved that the exchange of price information has in this case had the necessary effect of restraining price competition. In its brief before this Court, the Government relies very largely on one finding of the District Court and upon economic theory. The Government has presented a convincing argument in theoretical terms. However, the evidence simply does not square with that theory. And, this is not a case in which it would be unduly difficult to demonstrate anticompetitive effects.

The record indicates that defendants have offered voluminous evidence concerning price trends and competitive behavior in the corrugated container market. Their exhibits indicate a downward trend in prices, with substantial price variations among defendants and among their different plants. There was also a great deal of shifting of accounts. The District Court specifically found that the corrugated container market was highly competitive and that each defendant engaged in active price competition. The Government would have us ignore this evidence and these findings, and assume that because we are dealing with an industry with overcapacity and yet continued entry, the new entrants must have been attracted by high profits. The Government then argues that high profits can only result from stabilization of prices at an unduly high level. Yet, the Government did not introduce any evidence about the level of profits in this industry, and no evidence about price levels. Not one customer was called, although the Government surely had ample access to defendants’ customers. The Government admits that the price trend was down, but asks the Court to assume that the trend would have been accelerated with less informed, and hence more vigorous, price competition. In the absence of any proof whatsoever, I cannot make such an assumption. It is just as likely that price competition was furthered by the exchange as it is that it was depressed.

Finally, the Government focuses on the finding of the District Court that in a majority of instances a defendant, when it received what it considered reliable price information, would quote or charge substantially the same price. The Court and my Brother Fortas also focus on this finding. Such an approach ignores, however, the remainder of the District Court’s findings. The trial judge found that price decisions were individual decisions, and that defendants frequently did cut prices in order to obtain a particular order. And, the absence of any price parallelism or price uniformity and the downward trend in the industry undercut the conclusion that price information was used to stabilize prices.

The Government is ultimately forced to fall back on the theoretical argument that prices would have been more unstable and would have fallen faster without price information. As I said earlier, I cannot make this assumption on the basis of the evidence in this record. The findings of the Court below simply do not indicate that the exchange of information had a significant anti-competitive effect; if we rely on these findings, at worst all we can assume is that the exchange was a neutral factor in the market. As this Court said in Maple Flooring, supra, at 585: “We realize that such information, gathered and disseminated among the members of a trade or business, may be the basis of agreement or concerted action to . . . raise prices beyond the levels . . . which would prevail if no such agreement or concerted action ensued and those engaged in commerce were left free to base individual initiative on full information of the essential elements of their business.” However, here, as in Maple Flooring, the Government has not proved that the information was so used. Rather, the record indicates that, while each defendant occasionally received price information from a competitor, that information was used in the same manner as other reliable market information — i. e., to reach an individual price decision based upon all available information. The District Court’s findings that this was a competitive industry, lacking any price parallelism or uniformity, effectively refute the Government’s assertion that the result of those decisions was to maintain or tend to maintain prices at other than a competitive level. Accordingly, I would affirm the decision of the court below.

       Section 1 provides:
      “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal.”

       This is obviously quite different from the parallel business behavior condoned in Theatre Enterprises, Inc. v. Paramount Film Distributing Corp., 346 U. S. 537.

       The American Column case was a sophisticated and well-supervised plan for the exchange of price information between competitors with the idea of keeping prices reasonably stable and of putting an end to cutthroat competition. There were no sanctions except financial interest and business honor. But the purpose of the plan being to increase prices, it was held to fall within the ban of the Sherman Act.
      Another elaborate plan for the exchange of price data among competitors was involved in American Linseed Oil; and informal sanctions were used to establish "modem co-operative business methods.” The arrangement was declared illegal because its “necessary tendency” was to suppress competition. 262 U. S., at 389.

      Thorstein Veblen in The Theory of Business Enterprise (1904) makes clear how the overabundance of a commodity creates a business appetite to regulate or control prices or output or both. Measures short of monopoly may have “a salutary effect,” as for example a degree of control or supervision over prices not obtainable while the parties “stood on their old footing of severalty.” But that relief is apt to be “only transient,” for as the costs of production decline and growth of the industry “catches up with the gain in economy,” the need for further controls or restraints increases. And so the restless, never-ending search for price control and other types of restraint.
      We held in United States v. Socony-Vacuum Oil Co., 310 U. S. 150, that all forms of price-fixing are per se violations of the Sherman Act.
      “The elimination of so-called competitive evils is no legal justification for such buying programs. The elimination of such conditions was sought primarily for its effect on the price structures. Fairer competitive prices, it is claimed, resulted when distress gasoline was removed from the market. But such defense is typical of the protestations usually made in price-fixing cases. Ruinous competition, financial disaster, evils of price cutting and the like appear throughout our history as ostensible justifications for price-fixing. If the so-called competitive abuses were to be appraised here, the reasonableness of prices would necessarily become an issue in every price-fixing case. In that event the Sherman Act would soon be emasculated; its philosophy would be supplanted by one which is wholly alien to a system of free competition; it would not be the charter of freedom which its framers intended.” 310 U. S., at 220-221.

       The record does not indicate whether all manufacturers engaged in exchange of price information, or whether the practice was limited to defendants. There is no indication that other manufacturers would not have been given price information had they requested it.

       Here it is relevant to note again that the evidence was largely the result of stipulation, with the Government admittedly introducing very little evidence on the actual effect of the allegedly illegal practice.

       There was no effort to demonstrate that the price behavior of those manufacturers who did not exchange price information, if any, varied significantly from the price behavior of those who did. In fact, several of the District Court’s findings indicate that when certain defendants stopped exchanging price information, their price behavior remained essentially the same, and, in some cases, prices actually increased.

       It should be noted that, in most cases, this information was obtained from a .customer rather than a competitor, a practice the Government does not condemn.

       Immediately following the particular sentence emphasized by the Government, there appears the finding that “[i]n many instances, however, depending upon particular circumstances, each defendant quoted lower or higher prices, and in all instances the determination as to the price to be charged or quoted was its individual decision.” Other findings of fact are to the same effect.

       As mentioned above, no evidence was introduced that would indicate that more than minimal price cuts were economically feasible.

       See n. 3, supra.


source: Caselaw Access Project

author: Mr. Justice Douglas

license: Public Domain

text:
    UNITED STATES v. AUGENBLICK et al.
    No. 45.
    Argued November 21, 1968.
    Decided January 14, 1969.

      Assistant Attorney General Weisl argued the cause for the United States. With him on the briefs were Solicitor General Griswold, John C. Eldridge, and Robert V. Zener.

      Joseph H. Sharlitt argued the cause for respondent Augenblick. With him on the brief was Steven R. Riv-kin. Francis J. Steiner, Jr., argued the cause and filed a brief for respondent Juhl.
   Mr. Justice Douglas

delivered the opinion of the Court.

Respondents, who had been convicted by courts-martial, brought these suits for back pay. Augenblick, though charged with sodomy, was convicted of a lesser offense, an indecent act, and Juhl was convicted of selling overseas merchandise of an Air Force Exchange. Augenblick was sentenced to dismissal from the service; Juhl was sentenced to reduction in rank, partial forfeiture of pay, and confinement for six months. Each exhausted the remedies available to him and, not having obtained relief, brought suit in the Court of Claims to recover back pay, on the ground that the court-martial infringed on his constitutional rights. The Court of Claims undertook to review the judgments of the courts-martial for constitutional defects and rendered judgments for respondents. 180 Ct. Cl. 131, 377 F. 2d 586; 181 Ct. Cl. 210, 383 F. 2d 1009. The case is here on petition for writs of certiorari which we granted because of the importance of the question concerning the jurisdiction of the Court of Claims to review judgments of courts-martial. 390 U. S. 1038.

Article 76 of the Uniform Code of Military Justice, 10 U. S. C. § 876, provides that military review of court-martial convictions shall be “final and conclusive” and “binding upon all . . . courts ... of the United States.” The legislative history of the provision makes clear that relief by way of habeas corpus was an implied exception to that finality clause (S. Rep. No. 486, 81st Cong., 1st Sess., 32; H. R. Rep. No. 491, 81st Cong., 1st Sess., 35) — an' exception not available to respondent Augen-blick because he was discharged from the service, not imprisoned, and a remedy apparently not invoked by respondent Juhl during his short period of detention.

An additional remedy, apparently now available but not clearly known at the time of these court-martial convictions, is review by the Court of Military Appeals. In United States v. Bevilacgua, 18 U. S. C. M. A. 10, 11-12, 39 C. M. R. 10, 11-12, decided November 8, 1968, that court held that it has jurisdiction “to accord relief to an accused who has palpably been denied constitutional rights in any court-martial; and that an accused who has been deprived of his rights need not go outside the military justice system to find relief in the civilian courts of the Federal judiciary.”

Prior to the enactment of Article 76, the Court of Claims had entertained suits for back pay brought by servicemen who had been convicted by courts-martial. See, e. g., Keyes v. United States, 109 U. S. 336; Runkle v. United States, 122 U. S. 543; Swaim v. United States, 165 U. S. 553; United States v. Brown, 206 U. S. 240. These decisions, it is argued, were based on the theory that the Court of Claims had jurisdiction over back-pay suits where the courts-martial lacked “jurisdiction” in the traditional sense, viz., where “there is no law authorizing the court-martial, or where the statutory conditions as to the constitution or jurisdiction of the court are not observed.” Keyes v. United States, supra, at 340. From this premise it is urged that when, in review of state convictions by way of federal habeas corpus, the concept of “jurisdiction” was broadened to include deprivation by the trial tribunal of the constitutional rights of a defendant (Moore v. Dempsey, 261 U. S. 86; Johnson v. Zerbst, 304 U. S. 458), the scope of collateral review of court-martial convictions was also broadened. That is the position of the Court of Claims which rejected the view that the adoption of Article 76 introduced a new regime and that 10 U. S. C. § 1552 which provides a remedy to correct a military record in order to “remove an injustice,” see Ashe v. McNamara, 355 F. 2d 277, is, apart from habeas corpus, the exclusive remedy.

On that issue there have been a variety of views expressed in this Court. See Burns v. Wilson, 346 U. S. 137, 149, 152-153. There is likewise unresolved the question whether, if the view of the Court of Claims is correct, the District Courts might have a like jurisdiction over suits not exceeding $10,000 under the Tucker Act, 28 U. S. C. § 1346 (a)(2). After hearing argument and studying the record of these cases we do not reach those questions. For we conclude that, even if we assume, arguendo, that a collateral attack on a court-martial judgment may be made in the Court of Claims through a back-pay suit alleging a “constitutional” defect in the military decision, these present cases on their facts do not rise to that level.

The Court of Claims gave relief to Juhl because of the provision in paragraph 153 (a) of the Manual for Courts-Martial which states that the court-martial “cannot” base a conviction “upon the uncorroborated testimony of a purported accomplice in any case, if such testimony is self-contradictory, uncertain, or improbable.”

We do not stop to review the evidence which bears on this issue and which the Court of Claims sets forth in detail. See 181 Ct. Cl., at 215-225, 383 F. 2d, at 1012-1017.

The Manual was prescribed by the President pursuant to Article 36 of the Uniform Code, 10 U. S. C. § 836. It is a guidebook that summarizes the rules of evidence applied by court-martial review boards. See Levy v. Resor, 17 U. S. C. M. A. 135, 37 C. M. R. 399. The paragraph regarding accomplice testimony is a statutory rule of evidence. Such rules do not customarily involve constitutional questions. See Humphrey v. Smith, 336 U. S. 695; Whelchel v. McDonald, 340 U. S. 122. The Whelchel case involved various paragraphs of the Manual dealing with the defense of insanity. We did not sanction review of those paragraphs in a collateral remedy but held that only a denial of the opportunity for the military to consider the defense of insanity “goes to the question of jurisdiction”; and we added that, “[a]ny error that may be committed in evaluating the evidence tendered is beyond the reach of review by the civil courts.” 340 U. S., at 124.

Rules of evidence are designed in the interest of fair trials. But unfairness in result is no sure measure of unconstitutionality. When we look at the requirements of procedural due process, the use of accomplice testimony is not catalogued with constitutional restrictions. Of course, if knowing use of its perjured character were linked with any testimony (Mooney v. Holohan, 294 U. S. 103; Brady v. Maryland, 373 U. S. 83), we would have a problem of different dimensions. But nothing of the kind is involved here.

Augenblick’s claim of constitutional defect in his court-martial concerns a phase in the discovery of evidence. He and a young airman, Hodges, were apprehended late at night in a parked car. The civilian police who arrested them turned them over to the Armed Forces Police who questioned them separately at a naval station in Washington, D. C. Hodges was then taken to an Air Force base in Maryland where he swore to a five-page written statement.

Augenblick was questioned at the naval station after Hodges. During this questioning of both men, Agent James made a tape recording of the conversations. Agent Mendelson either took some notes or wrote up some notes later.

Hodges apparently started out by denying that anything happened in the parked car and later maintained that sodomy had taken place, though, as we have said, Augenblick’s conviction was for an indecent act, not for sodomy. Hodges later received an honorable discharge; and it was the theory of the defense that he may have been induced to change his testimony on a promise that one would be given. It is indeed heavily impressed on us that Hodges was kept available for some months and left in good standing, in spite of his reprehensible conduct, and given an honorable discharge only after Augenblick was convicted.

The defense moved for the production of the notes which Mendelson had taken — or later typed up — and of the tape which James had made. As to the notes, the law officer, without examining them in camera or otherwise, denied the request. As to the tapes, the law officer ordered that they be produced or that the Government produce witnesses at an out-of-court hearing who could explain their nonexistence. The tapes were not produced; but each agent who had had contact with the recording was called, except Mendelson who was in Norfolk. James testified that there was a tape but no one knew where it was or what had happened to it. The defense urged that Mendelson, to whom the tapes had apparently once been delivered, be called; but the law officer after reading the record of Mendelson’s testimony on the tape recording at a pretrial investigation, refused.

The question of the production of Mendelson’s “notes” as well as the question of the production of the tapes bring into focus the Jencks Act, 18 U. S. C. § 3500. This Act, enacted after our decision in Jencks v. United States, 353 U. S. 657, provides that when a witness testifies for the United States the Government may be required to produce “any statement” of the witness which relates to his testimony. §3500 (b). The term “statement” is defined in subsection (e) as:

“(1) a written statement made by said witness and signed or otherwise adopted or approved by him; or
“(2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness to an agent of the Government and recorded contemporaneously with the making of such oral statement.”

There is considerable doubt if Mendelson’s “notes” fall within the definition of subsection (e). He testified at the court of inquiry that he made “rough pencil notes”; and he said at the pretrial investigation, “I did jot down a couple of rough notes.” Both the law officer and the Board of Review concluded that these “notes” were not a “substantially verbatim” statement producible under the Jencks Act.

It is difficult to tell from this record the precise nature of Mendelson’s “notes,” whether they recorded part of Hodges’ interview or whether they were merely a memorandum giving names, places, and hours. Certainly they were not a statement covering the entire interview; and if they were a truncated version, they would pose the question reserved in Palermo v. United States, 360 U. S. 343. Since on examination of the record we are left in doubt as to the precise nature of the “notes,” we cannot say that the command of the Jencks Act was disobeyed when they were not ordered to be produced.

Moreover, we said in Palermo v. United States, supra, at 353, that the administration of the Jencks Act must be entrusted to the “good sense and experience” of the trial judges subject to “appropriately limited review of appellate courts.” We cannot conclude that when it came to the “rough notes” of Mendelson, the law officer and Board of Review abused their discretion in holding that they need not be produced under the Jencks Act.

The same is true of the rulings concerning production of the tapes. There is no doubt but that the tapes were covered by the Jencks Act; and an earnest effort was made to locate them. Their nature and existence were the subject of detailed interrogation at the pretrial hearing convened at the request of the defense. Four government agents testified concerning the interrogation of Hodges, the recording facilities used, the Navy’s routine in handling and using such recordings, and the fate of the tape containing Hodges’ testimony. The ground was covered once again at the court-martial. The tapes were not produced; the record indeed shows that they were not found; and their ultimate fate remains a mystery. The law officer properly ruled that the Government bore the burden of producing them or explaining why it could not do so.

The record is devoid of credible evidence that they were suppressed. Whether Mendelson should have been recalled is a matter of debate and perhaps doubt. But questions of that character do not rise to a constitutional level. Indeed our Jencks decision and the Jencks Act were not cast in constitutional terms. Palermo v. United States, supra, at 345, 362. They state rules of evidence governing trials before federal tribunals; and we have never extended their principles to state criminal trials. It may be that in some situations, denial of production of a Jencks Act type of a statement might be a denial of a Sixth Amendment right. There is, for example, the command of the Sixth Amendment that criminal defendants have compulsory process to obtain witnesses for their defense. Palermo v. United States, supra, at 362 (Brennan, J., concurring in result). But certain it is that this case is not a worthy candidate for consideration at the constitutional level.

The Court of Claims, in a conscientious effort to undo an injustice, elevated to a constitutional level what it deemed to be an infraction of the Jencks Act and made a denial of discovery which “seriously impeded his right to a fair trial” a violation “of the Due Process Clause of the Constitution.” 180 Ct. Cl., at 166, 377 F. 2d, at 606-607. But apart from trials conducted in violation of express constitutional mandates, a constitutionally unfair trial takes place only where the barriers and safeguards are so relaxed or forgotten, as in Moore v. Dempsey, supra, that the proceeding is more a spectacle (Rideau v. Louisiana, 373 U. S. 723, 726) or trial by ordeal (Brown v. Mississippi, 297 U. S. 278, 285) than a disciplined contest.

Reversed.

       Augenblick’s conviction was reviewed by a Navy Board of Review and affirmed, one member dissenting. The Court of Military Appeals denied a petition for review without opinion January 11, 1963. The Secretary of the Navy declined review on January 30, 1963. See 10 U. S. C. § 871.
      Augenblick was dismissed February 5, 1963. On November 14, 1964, the Board for Correction of Records denied relief.
      His suit in the Court of Claims was filed October 22, 1964.
      Juhl’s conviction was reviewed by the Staff Judge Advocate. The Air Force Board for Correction of Military Records also denied relief. His suit in the Court of Claims was filed October 12, 1965.

       Back-pay suits are brought under 28 U. S. C. § 1491 which provides that the Court of Claims has jurisdiction to render judgment against the United States on any claim “founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States . . . .” See Eastport Steamship Corp. v. United States, 178 Ct. Cl. 599, 606, 372 F. 2d 1002, 1008. See Brenner, Judicial Review by Money Judgment in the Court of Claims, 21 Fed. B. J. 179, 190-191 (1961).

       Habeas corpus has been the conventional way of obtaining here collateral review of conviction by military tribunals. See Reid v. Covert, 354 U. S. 1; Burns v. Wilson, 346 U. S. 137; Whelchel v. McDonald, 340 U. S. 122; Gusik v. Schilder, 340 U. S. 128.

       As we have noted, n. 1, supra, Augenblick sought and was denied review by the Court of Military Appeals; and Juhl in his petition to the Court of Claims alleged that “[n]o appeal was possible under law to the United States Court of Military Appeals,” an allegation admitted by the Government in its answer.

       Section 1552 (a) of 10 U. S. C. provides in part:
      ‘'The Secretary of a military department, under procedures established by him and approved by the Secretary of Defense, and acting through boards of civilians of the executive part of that military department, may correct any military record of that department when he considers it necessary to correct an error or remove an injustice.”

       180 Ct. Cl., at 140-143, 377 F. 2d, at 591-593.

       For a discussion of Tucker Act jurisdiction over back-pay suits see H. R. Rep. No. 1604, 88th Cong., 2d Sess., 2.


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

text:
    NATIONAL LABOR RELATIONS BOARD v. STRONG, dba STRONG ROOFING & INSULATING CO.
    No. 61.
    Argued December 10, 1968.
    Decided January 15, 1969.

      Harris Weinstein argued the cause for petitioner. With him on the brief were Solicitor General Griswold, Arnold Ordman, Dominick L. Manoli, and Norton J. Gome.

      Charles G. Bakaly, Jr., argued the cause for respondent. With him on the brief was William B. Carman.

   Mr. Justice White

delivered the opinion of the Court.

The Roofing Contractors Association of Southern California, of which respondent was then a member, negotiated a collective bargaining contract with the Roofers Union effective August 15, 1963, establishing compensation levels for the employees of member firms for the next four years. On August 20, 1963, respondent sought to withdraw from the multiple employer bargaining association which had negotiated this agreement. He then refused repeated demands from the union that he sign the contract. At length, the union filed unfair labor practice charges with the National Labor Relations Board, which found that respondent’s refusal to sign the contract which had been negotiated on his behalf by the Association was a violation of §§ 8 (a)(5) and (1) of the National Labor Relations Act, 61 Stat. 140-141, as amended, 29 U. S. C. §§ 158(a)(5) and (1). The Board ordered respondent to sign the contract, cease and desist from unfair labor practices, post notices, and “[p]ay to the appropriate source any fringe benefits provided for in the above-described contract.” 152 N. L. R. B. 9, 14 (1965). The Court of Appeals enforced the Board’s order except as it required the payment of fringe benefits. That part of the order, the Court of Appeals said, “is an order to respondent to carry out provisions of the contract and is beyond the power of the Board.” 386 F. 2d 929, 933 (1967). The Government sought and we granted certiorari as to this holding. 391 U. S. 933 (1968).

Believing the remedy provided by the Board was well within its powers, we reverse the judgment of the Court of Appeals. Section 10 (c) of the Act empowers the Board when it adjudicates an unfair labor practice to issue “an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this Act.” 61 Stat. 147, 29 U. S. C. § 160 (c). This grant of remedial power is a broad one. It does not authorize punitive measures, but “[m]aking the workers whole for losses suffered on account of an unfair labor practice is part of the vindication of the public policy which the Board enforces.” Phelps Dodge Corp. v. NLRB, 313 U. S. 177, 197 (1941). Back pay is one of the simpler and more explicitly authorized remedies utilized to attain this end.

Here the unfair labor practice was the failure of the employer to sign and acknowledge the existence of a collective bargaining agreement which had been negotiated and concluded on his behalf. There is no dispute that respondent withdrew from the Roofing Contractors Association too late to escape the binding force of the agreement it had negotiated for him, supplanting previous agreements which had been negotiated in the same way. Nor, in light of the obligation of an employer bargaining in good faith to sign a contract reducing agreed terms to writing, H. J. Heinz Co. v. NLRB, 311 U. S. 514, 524-526 (1941), is it argued that respondent’s failure to sign the agreement was not an unfair labor practice. The judgment of the Board in these respects is not now challenged. The remedy ordered by the Board included a direction to pay the fringe benefits which would have been paid had the employer signed the agreement and thereby recognized his legal obligations which had matured during the collective bargaining process. This is no more than the Act and cases like Phelps Dodge plainly authorize.

The challenge of the employer, in brief, is that ordering the payment of fringe benefits reserved in the contract inserts the Board into the enforcement of the collective bargaining agreement, contrary to the policy and scheme of the statute. Admittedly, the Board has no plenary authority to administer and enforce collective bargaining contracts. Those agreements are normally enforced as agreed upon by the parties, usually through grievance and arbitration procedures, and ultimately by the courts. But the business of the Board, among other things, is to adjudicate and remedy unfair labor practices. Its authority to do so is not “affected by any other means of adjustment or prevention that has been or may be established by. agreement, law, or otherwise . . . .” § 10 (a), 61 Stat. 146, 29 U. S. C. § 160 (a). Hence, it has been made clear that in some circumstances the authority of the Board and the law of the contract are overlapping, concurrent regimes, neither pre-empting the other. NLRB v. C & C Plywood Corp., 385 U. S. 421 (1967); Carey v. Westinghouse Electric Corp., 375 U. S. 261, 268 (1964); Smith v. Evening News Assn., 371 U. S. 195, 197-198 (1962); Teamsters Local 174 v. Lucas Flour Co., 369 U. S. 95, 101, n. 9 (1962). Arbitrators and courts are still the principal sources of contract interpretation, but the Board may proscribe conduct which is an unfair labor practice even though it is also a breach of contract remediable as such by arbitration and in the courts. Smith v. Evening News Assn., 371 U. S. 195, 197-198 (1962). It may also, if necessary to adjudicate an unfair labor practice, interpret and give effect to the terms of a collective bargaining contract. NLRB v. C & C Plywood Corp., 385 U. S. 421 (1967).

Bearing more precisely on this case, the Board is expressly invited by the Act to determine whether an employer has refused to bargain in good faith and thereby violated § 8 (a) (5) by resisting “the execution of a written contract incorporating any agreement reached if requested by either party . . . .” § 8 (d), 61 Stat. 142, 29 U. S. C. § 158 (d); H. J. Heinz Co. v. NLRB, 311 U. S. 514, 524-526 (1941). The Board is not trespassing on forbidden territory when it inquires whether negotiations have produced a bargain which the employer has refused to sign and honor, particularly when the employer has refused to recognize the very existence of the contract providing for the arbitration on which he now insists. To this extent the collective contract is the Board’s affair, and an effective remedy for refusal to sign is its proper business.

Firing an employee for union membership may be a breach of contract open to arbitration, but whether it is or not, it is also an unfair labor practice which may be remedied by reinstatement with back pay under § 10 (c) even though the Board's order mandates the very compensation reserved by the contract. Cf. NLRB v. Great Dane Trailers, Inc., 388 U. S. 26 (1967); Mastro Plastics Corp. v. NLRB, 350 U. S. 270 (1956); Wallace Corp. v. NLRB, 323 U. S. 248 (1944).

The case before us is little, if any, different. The act of refusing to sign the collective bargaining agreement may not have been a breach of contract, but it was an unfair practice. Once adjudicated, it could be remedied by a Board order requiring payment of those fringe benefits which would have been paid had the employer signed and acknowledged the contract which had been duly negotiated on his behalf. The judgment of the Court of Appeals is reversed.

It is so ordered.

Mr. Justice Black

concurs in the reversal of the Court of Appeals’ judgment, but he would direct that the cause be remanded to the Board for it to determine whether to submit the case to arbitration in accord with the contract.

Mr. Justice Douglas,

dissenting.

There is a surface logic in what the Court does today: If the Board may award back pay (which is computed from the collective bargaining agreement), it should be allowed to award fringe benefits, whose character and amount are also determined by the collective bargaining agreement. An award of back pay, however, is an express part of the legislative grant of authority, while the award of fringe benefits is not. That is, of course, not a complete answer, for Congress did not make an exhaustive catalogue of devices used to thwart the Act, but largely left to the Board “the relation of remedy to policy.” See Phelps Dodge Corp. v. NLRB, 313 U. S. 177, 194.

What distinguishes the present case is the fact that fringe benefits are not products of a computer but of an arbitral process to which Congress has given strong support. See Textile Workers v. Lincoln Mills, 353 U. S. 448.

The provision for arbitration is in a sense competitive with the provision empowering the Board to remedy an unfair labor practice. It is indeed an integral part of the collective agreement providing a procedure sui generis for resolving grievances that arise.

There were proposals, as we noted in Dowd Box Co. v. Courtney, 368 U. S. 502, 510-511, to make a breach of a collective bargaining agreement an unfair labor practice subject to the jurisdiction of the National Labor Relations Board. But those proposals never gained the necessary support, Congress deciding that “[o]nee parties have made a collective bargaining contract the enforcement of that contract should be left to the usual processes of the law and not to the National Labor Relations Board.” H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess., 42, quoted in Dowd Box Co. v. Courtney, supra, at 511. It is that policy that is reflected in § 301 of the Labor Management Relations Act, 1947, which was before us in Lincoln Mills, 353 U. S., at 452. That policy was to exchange an agreement to arbitrate grievance disputes for a no-strike agreement. Id., at 455.

Arbitration is not a process which the Board is either equipped or qualified to follow. Those who are arbiters have special qualifications in a particular industry and come to know the common law of the shop.

The jurisdiction of any agency or branch of government has a built-in impetus for growth and expansion. Seldom does a department restrict its powers narrowly and assume a self-denying attitude. The tendency is to construe express powers broadly. The organism grows by subtle and little-noticed extensions of authority. To students of government this phenomenon is as predictable as the operation of other so-called “laws.”

Courts are no exception; and part of their tendency to find easy extensions of their authority was seen in their early contest with administrative agencies. See United States v. Morgan, 307 U. S. 183, 191. Recent examples exist in this very field of arbitration with which we are concerned here. We noted in Steelworkers v. Warrior & Gulf Co., 363 U. S. 574, how some courts were being enticed to construe arbitration clauses as permitting or not permitting arbitration of certain kinds of disputes and then becoming entangled in the arbitral process, though it was for the arbiters, not for them. Id., at 585. We relegated the courts to their narrow field, leaving arbitration to the new expertise.

An arbiter is not of course free “to dispense his own brand of industrial justice” but is admonished “to reach a fair solution of a problem” within the letter and spirit of the collective bargaining agreement. Steelworkers v. Enterprise Corp., 363 U. S. 593, 597. The past practices of the parties, as well as the contractual provisions themselves, are the guidelines. Local 77 v. Philadelphia Orchestra, 252 F. Supp. 787. The agreement to arbitrate is, moreover, more than a contract; it is a generalized code that is understood only in light of the “ ‘common law of the shop which implements and furnishes the context of the agreement.’ ” Steelworkers v. Warrior & Gulf Co., supra, at 580. It is sometimes called “a cooperative effort by the parties and the arbitrator to develop a workable solution to the problem.” There is a more jaundiced view. Judge Hays, who has had considerable experience in the field, has stated:

“A proportion of arbitration awards . . . are decided not on the basis of the evidence or of the contract or other proper considerations, but in a way which in the arbitrator’s opinion makes it likely that he will be hired for other arbitration cases.” P. Hays, Labor Arbitration: A Dissenting View 112 (1966).

Whatever view of the process may be taken, it is clear that determining fringe benefits under a collective bargaining agreement is no job for a computer. But it can be hardly more than that when the Labor Board makes its computations for insertion in the remedial order.

What the “common law” of the shop would show covering these fringe benefits, what “past practices” might reflect on the amount of an award, what “a fair solution” of the problem might seem to be in an arbitration frame of reference, no one knows. These are matters for arbiters, chosen by the parties under the collective bargaining agreement, not for the Board, an alien to the system envisioned by Lincoln Mills.

       Roofers Local 36, United Slate, Tile and Composition Roofers, Damp and Waterproof Workers Association.

       See generally Nathanson v. NLRB, 344 U. S. 25, 29-30 (1952); Note, A Survey of Labor Remedies, 54 Va. L. Rev. 38, 41-95 (1968).

       Respondent is a past president of the Association, and thus was familiar with its bylaw that a “labor contract negotiated by the Committee shall be binding upon the Regular Members of this Association separately and collectively ...”

       The fact that the payments in question here did not constitute direct pay to the employees is irrelevant in our view of this case. Whether the payments were made to the employees, who then contributed them to union trust funds in the form of higher union dues, or whether as here they passed straight from the employer to the trust funds, the final result is the same. And it is just as much in the interest of “effectuat[ing] the policies of this Act,” and of making the employees whole, to require the payments in either case.

         Steelworkers Trilogy, 363 U. S. 564, 574, 593 (1960). Congress established the judicial remedy of § 301 of the Labor Management Relations Act, 1947, 61 Stat. 156, 29 U. S. C. § 185, in lieu of a proposal to make breach of a collective bargaining agreement itself an unfair labor practice. H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess., 41-42. The House Conference Report asserts that “[o]nce parties have made a collective bargaining contract the enforcement of that contract should be left to the usual processes of the law and not to the National Labor Relations Board,” id., at 42. See Textile Workers v. Lincoln Mills, 353 U. S. 448, 452 (1957). Cf. LMRA § 201, 61 Stat. 152, 29 TJ. S. C. § 171.

       Sec. 10 (c) of the Act authorizes the Board, when it finds an unfair labor practice, to issue “an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this Act.”

       See, e. g., Aaron, “On First Looking into the Lincoln Mills Decision,” in Arbitration and the Law (Proceedings, National Academy of Arbitrators) (J. McKelvey ed. 1959); Bickel & Wellington, Legislative Purpose and the Judicial Process: The Lincoln Mills Case, 71 Harv. L. Rev. 1 (1957); Bunn, Lincoln Mills and the Jurisdiction to Enforce Collective Bargaining Agreements, 43 Va. L. Rev. 1247 (1957); Cox, Reflections Upon Labor Arbitration, 72 Harv. L. Rev. 1482 (1959); Cox, The Legal Nature of Collective Bargaining Agreements, 57 Mich. L. Rev. 1 (1958); Feinsinger, Enforcement of Labor Agreements — A New Era In Collective Bargaining, 43 Va. L. Rev. 1261 (1957); Gregory, The Law of the Collective Agreement, 57 Mich. L. Rev. 635 (1959); Jenkins, The Impact of Lincoln Mills on the National Labor Relations Board, 6 U. C. L. A. L. Rev. 355 (1959).

       See, e. g., Christensen, Arbitration, Section 301, and the National Labor Relations Act, 37 N. Y. U. L. Rev. 411 (1962); Kovarsky, Labor Arbitration and Federal Pre-emption: The Overruling of Black v. Cutter Laboratories, 47 Minn. L. Rev. 531 (1963); Smith & Jones, The Impact of the Emerging Federal Law of Grievance Arbitration on Judges, Arbitrators, and Parties, 52 Va. L. Rev. 831 (1966); Smith & Jones, The Supreme Court and Labor Dispute Arbitration: The Emerging Federal Law, 63 Mich. L. Rev. 751 (1965); Comment, Common Law of Grievance Arbitration: New Wine in Old Bottles?, 58 Nw. U. L. Rev. 494 (1963).

       C. N. Parkinson, Parkinson’s Law (1957).

       See Aaron, Arbitration in the Federal Courts: Aftermath of the Trilogy, 9 U. C. L. A. L. Rev. 360 (1962); Davey, The Supreme Court and Arbitration: The Musings of an Arbitrator, 36 Notre Dame Law. 138 (1961); Fleming, Some Observations on Contract Grievances Before Courts and Arbitrators, 15 Stan. L. Rev. 595 (1963); Gregory, Enforcement of Collective Agreements by Arbitration, 48 Va. L. Rev. 883 (1962); Jones, The Name of the Game is Decision — Some Reflections on “Arbitrability” and “Authority” in Labor Arbitration, 46 Texas L. Rev. 865 (1968); Mayer, Labor Relations, 1961: The Steelworkers Cases Re-examined, 13 Lab. L. J. 213 (1962); Meltzer, The Supreme Court, Arbitrability and Collective Bargaining, 28 U. Chi. L. Rev. 464 (1961); Jones & Smith, Management and Labor Appraisals and Criticisms of the Arbitration Process: A Report with Comments, 62 Mich. L. Rev. 1115 (1964).

       See Treece, Past Practice and Its Relationship to Specific Contract Language in the Arbitration of Grievance Disputes, 40 U. Colo. L. Rev. 358, 360 et seq. (1968). Domke, Arbitration, 36 N. Y. U. L. Rev. 545 (1961); Fleming, Reflections on the Nature of Labor Arbitration, 61 Mich. L. Rev. 1245 (1963).

       Aaron, Judicial Intervention in Labor Arbitration, 20 Stan. L. Rev. 41, 55 (1967).

       But see Meltzer, Ruminations About Ideology, Law, and Labor Arbitration, 34 U. Chi. L. Rev. 545 (1967).


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

text:
    GARDNER v. CALIFORNIA.
    No. 73.
    Argued November 20, 1968.
    Decided January 20, 1969.

      Charles E. Bickershauser, Jr., by appointment of the Court, 391 U. S. 911, argued the cause and filed a brief for petitioner.

      Jack K. Weber, Deputy Attorney General of California, argued the cause for respondent. With him on the brief were Thomas C. Lynch, Attorney General, and William E. James, Assistant Attorney General.
   Mr. Justice Douglas

delivered the opinion of the Court.

Petitioner is a California state prisoner who filed pro se various papers with the State Superior Court alleging state action that interfered with his access to the courts for determination of his claims. The Superior Court, which granted a hearing and designated the Public Defender’s office to represent petitioner at that hearing, treated the papers as requests for habeas corpus relief. After hearing, it made findings and held that the State had not impaired petitioner’s rights of access to the courts.

Under California law, while the State has an appeal from an order discharging a prisoner in a habeas corpus proceeding, the prisoner has no appeal where his petition is denied. See Loustalot v. Superior Court, 30 Cal. 2d 905, 913, 186 P. 2d 673, 677-678. But he may file a petition for habeas corpus either in the intermediate Court of Appeal or in the Supreme Court. As petitioner in the instant case desired to pursue his remedy in the higher courts, he asked for a free transcript of the evidentiary hearing before the Superior Court. His motion was denied and he sought review of that denial by certiorari to the District Court of Appeal. It was denied, as was a timely petition for a hearing in the Supreme Court. We granted the petition for a writ of certiorari, 391 U. S. 902, to consider whether the rulings below squared with our decisions in Griffin v. Illinois, 351 U. S. 12, and Long v. District Court, 385 U. S. 192.

We reverse the judgment below. If this involved an appeal from the Superior Court’s denial of habeas corpus, the rule of the Griffin case would prevent California from not allowing petitioner, an indigent, access to the record which makes any appellate review meaningful, while according full review to all who have the money to pay their own way. This, however, is not an appeal but the drafting of a new original petition for habeas corpus to the higher court. That new petition must reflect what had transpired in the Superior Court. The statute provides:

“Every application for a writ of habeas corpus must be verified, and shall state whether any prior application or applications have been made for a writ in regard to the same detention or restraint complained of in the application, and if any such prior application or applications have been made the later application must contain a brief statement of all proceedings had therein, or in any of them, to and including the final order or orders made therein, or in any of them, on appeal or otherwise.”

It is argued that since petitioner attended the hearing in the Superior Court, he can draw on his memory in preparing his application to the appellate court. And that court, if troubled, can always obtain the transcript from the lower court. But we deal with an adversary system where the initiative rests with the moving party. Without a transcript the petitioner, as he prepared his application to the appellate court, would have only his own lay memory of what transpired before the Superior Court. For an effective presentation of his case he would need the findings of the Superior Court and the evidence that had been weighed and rejected in order to present his case in the most favorable light. Certainly a lawyer, accustomed to precise points of law and nuances in testimony, would be lost without such a transcript, save perhaps for the unusual and exceptional case. The lawyer, having lost below, would be conscious of the skepticism that prevails above when a second hearing is sought and would as sorely need the transcript in petitioning for a hearing before the appellate court as he would if the merits of an appeal were at stake. A layman hence needs the transcript even more.

It is said that the appellate court may send for the transcript and deduce from it whether there is merit in this new application for another hearing. That philosophy would make the appellate tribunal parens patriae of the indigent habeas corpus litigant. If that would suffice for appellate hearings in habeas corpus, why not in review of cases on appeal? Since our system is an adversary one, a petitioner carries the burden of convincing the appellate court that the hearing before the lower court was either inadequate or that the legal conclusions from the. facts deduced were erroneous. A transcript is therefore the obvious starting point for those who try to make out a case for a second hearing. The State can hardly contend that a transcript is irrelevant to the second hearing, where it specifically provides one, upon request, to the appellate court and the State attorney. So long as this system of repeated hearings exists and so long as transcripts are available for preparation of appellate hearings in habeas corpus cases, they may not be furnished those who can afford them and denied those who are paupers.

There is no suggestion that in the present case there is any adequate substitute for a full stenographic transcript. We conclude that in the context of California’s habeas corpus procedure denial of a transcript to an indigent marks the same invidious discrimination which we held impermissible in the Griffin and Long cases where a State granted appeals in criminal cases but in practical effect denied effective appellate review to indigents.

Reversed.

Mb. Justice Black

concurs in the judgment of reversal and all of the Court’s opinion except the statement at 370 that a full stenographic transcript is required here. He is of the opinion that, as stated in Griffin v. Illinois, 351 U. S. 12, there may be no necessity for a full stenographic transcript in state habeas corpus cases, and for that reason he would not automatically require the State to supply one in cases like this case.

Mb. Justice Hablan,

whom Mb. Justice Stewabt joins, dissenting.

The Court holds today that petitioner, whose application for a writ of habeas corpus was denied in the California Superior Court, is automatically entitled to a free transcript of that proceeding, to aid him in “preparing” and “presenting” an entirely new application in the State Supreme Court. In so holding, the Court not only misconceives the nature of California’s post-conviction procedure, but it imposes on the State a financial burden which is not offset by any appreciable benefit to the petitioner.

Under § 1475 of the California Penal Code, an applicant denied habeas corpus relief in a lower state court may file an application de novo in a higher court. As the Superior Court below noted, the petition is self-contained and independent of the prior proceeding. (Appendix 43.) The applicant is neither required nor requested to assign errors, or refer to testimony, in the prior proceeding. He must only inform the court that such a proceeding took place and supply collateral data, such as the court in which it was held, the disposition, etc. The initial question for the second court — as it is for any court examining an application for post-conviction relief — is whether, taking the factual allegations as proved, the application states a claim upon which relief can be granted. If the court determines that a claim is stated, it will order a referee to conduct an independent evidentiary hearing.

Certainly there can be no constitutional requirement that a court hear, or review the transcript of, testimony in support of factual allegations which, even if proved, would not constitute grounds for relief. Cf. Draper v. Washington, 372 U. S. 487, 495-496 (1963). Nor will a transcript of a prior habeas corpus hearing materially aid the applicant in framing the allegations in a subsequent petition. To be sure, a transcript of the prior hearing may be an incidental convenience — so, too, would a daily transcript at a criminal trial — but the Fourteenth Amendment does not require a State to furnish an indigent with every luxury that a wealthy litigant might conceivably choose to purchase. Cf. id., at 496.

Neither Long v. District Court, 385 U. S. 192 (1966), nor any other decision of this Court, suggests that California’s procedure is constitutionally defective. The State in Long simply made “no provision [on an appeal from the denial of habeas corpus] ... for the furnishing of a transcript without the payment of fee ...,” or for an independent evidentiary hearing at the appellate level. For all practical purposes, an indigent could not effectively obtain review. In contradistinction, the California indigent who alleges facts which entitle him to relief is afforded the same opportunity as any other applicant to prove those facts.

In purpose and effect, California’s procedure is not dissimilar to the federal rule whereby an indigent appealing the denial of an application for collateral relief is provided a transcript only if “the trial judge or a circuit judge certifies that the . . . appeal is not frivolous and that the transcript is needed to decide the issue presented by the . . . appeal.” 28 U. S. C. § 753 (f) (1964 ed., Supp. III). Both the state and federal procedures are responsive to the immense volume of frivolous habeas corpus applications and appeals filed in the respective systems. Both procedures are sensible and practical. Both are equitable and fair.

I would affirm.

       Calif. Penal Code § 1506.

       See Calif. Const., Art. 6, § 10; Calif. Penal Code § 1475; Rules 50 and 190, Calif. Rules of Court.

       Calif. Penal Code § 1475.

       Rule 60, Calif. Rules of Court, provides:
      “When a petition for a writ of habeas corpus is filed in a reviewing court, seeking the release from custody of one who is confined under the process of any court of this State, and the court, before passing on the petition, desires to obtain information concerning any matter of record pertaining to the case of such person, it may order the custodian of the record to produce the same or a certified copy thereof to be filed with the clerk of the reviewing court.”
      See also S. Weigel & L. Burke, State-Federal Post Conviction Problems, 1 Federal Judicial Center Report 101 (1968).

       While petitioner had assigned counsel at the hearing before the Superior Court, that assignment did not cover the preparation of papers in further pursuit of relief.

       Cf. Griffin v. Illinois, 351 U. S. 12, 20.

       See Form for Petition for Release from or Modification of Custody, as amended effective January 1, 1966, approved by the Judicial Council of California for use under Rules 56.5 and 201 (f) of the California Rules of Court.

       Under Rule 60 of the California Rules of Court, ante, at 369, n. 4, the court may also order the transcript of the earlier proceeding.

       In this connection, it is worth noting that petitioner’s affidavit in support of his motion for a free transcript stated that the Superior Court ruled against him, “not on the facts of his claims, but as to the interpretation of rights secured by the Fourteenth Amendment.” (Appendix 41-42.) The State Supreme Court apparently reached the same conclusion as the lower court, and denied petitioner’s subsequent application for a writ of habeas corpus on the merits. I express no view on the merits of petitioner’s claims, which are the subject of petitions for certiorari pending this Term in Gardner v. California, No. 7, Misc., and Gardner v. California, No. 10, Misc.

       Similarly, Smith v. Bennett, 365 U. S. 708 (1961), held it impermissible for a State to condition docketing of a habeas corpus application or allowance of an appeal on the payment of a filing fee; and Lane v. Brown, 372 U. S. 477 (1963), held invalid a procedure under which an appeal from the denial of coram nobis could be perfected only by filing a transcript in the appellate court, when it was within the public defender’s exclusive discretion whether or not to request that a free transcript be prepared. The distinctions between these cases and the instant one are too obvious to merit discussion.


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

text:
    SMITH v. HOOEY, JUDGE.
    No. 198.
    Argued December 11, 1968.
    Decided January 20, 1969.

      Charles Alan Wright, by appointment of the Court, post, p. 813, argued the cause and filed a brief for petitioner.

      Joe S. Moss argued the cause for respondent. With him on the brief were Crawford C. Martin, Attorney General of Texas, Nola White, First Assistant Attorney General, A. J. Carubbi, Jr., Executive Assistant Attorney General, Robert C. Flowers and Gilbert J. Pena, Assistant Attorneys General, and Carol S. Vance.

   Mr. Justice Stewart

delivered the opinion of the Court.

In Klopfer v. North Carolina, 386 U. S. 213, this Court held that, by virtue of the Fourteenth Amendment, the Sixth Amendment right to a speedy trial is enforceable against the States as “one of the most basic rights preserved by our Constitution.” Id., at 226. The case before us involves the nature and extent of the obligation imposed upon a State by that constitutional guarantee, when the person under the state criminal charge is serving a prison sentence imposed by another jurisdiction.

In 1960 the petitioner was indicted in Harris County, Texas, upon a charge of theft. He was then, and still is, a prisoner in the federal penitentiary at Leavenworth, Kansas. Shortly after the state charge was filed against him, the petitioner mailed a letter to the Texas trial court requesting a speedy trial. In reply, he was notified that “he would be afforded a trial within two weeks of any date [he] might specify at which he could be present.” Thereafter, for the next six years, the petitioner, “by various letters, and more formal so-called ‘motions/ ” continued periodically to ask that he be brought to trial. Beyond the response already alluded to, the State took no steps to obtain the petitioner’s appearance in the Harris County trial court. Finally, in 1967, the petitioner filed in that court a verified motion to dismiss the charge against him for want of prosecution. No action was taken on the motion.

The petitioner then brought a mandamus proceeding in the Supreme Court of Texas, asking for an order to show cause why the pending charge should not be dismissed. Mandamus was refused in an informal and unreported order of the Texas Supreme Court. The petitioner then sought certiorari in this Court. After inviting and receiving a memorandum from the Solicitor General of the United States, 390 U. S. 937, we granted certiorari to consider the constitutional questions this case presents. 392 U. S. 925.

In refusing to issue a writ of mandamus, the Supreme Court of Texas relied upon and reaffirmed its decision of a year earlier in Cooper v. State, 400 S. W. 2d 890. In that ease, as in the present one, a state criminal charge was pending against a man who was an inmate of a federal prison. He filed a petition for a writ of habeas corpus ad prosequendum in the Texas trial court, praying that he be brought before the court for trial, or that the charge against him be dismissed. Upon denial of that motion, he applied to the Supreme Court of Texas for a writ of mandamus. In denying the application, the court acknowledged that an inmate of a Texas prison would have been clearly entitled to the relief sought as a matter of constitutional right, but held that “a different rule is applicable when two separate sovereignties are involved.” 400 S. W. 2d, at 891. The court viewed the difference as “one of power and authority.” Id., at 892. While acknowledging that if the state authorities were “ordered to proceed with the prosecution . . . and comply with certain conditions specified by the federal prison authorities, the relator would be produced for trial in the state court,” id., at 891, it nonetheless denied relief, because it thought “[t]he true test should be the power and authority of the state unaided by any waiver, permission or act of grace of any other authority.” Id., at 892. Four Justices dissented, expressing their belief that “where the state has the power to afford the accused a speedy trial it is under a duty to do so.” Id., at 893.

There can be no doubt that if the petitioner in the present case had been at large for a six-year period following his indictment, and had repeatedly demanded that he be brought to trial, the State would have been under a constitutional duty to try him. Klopfer v. North Carolina, supra, at 219. And Texas concedes that if during that period he had been confined in a Texas prison for some other state offense, its obligation would have been no less. But the Texas Supreme Court has held that because petitioner is, in fact, confined in a federal prison, the State is totally absolved from any duty at all under the constitutional guarantee. We cannot agree.

The historic origins of the Sixth Amendment right to a speedy trial were traced in some detail by The Chief Justice in his opinion for the Court in Klopfer, supra, at 223-226, and we need not review that history again here. Suffice it to remember that this constitutional guarantee has universally been thought essential to protect at least three basic demands of criminal justice in the Anglo-American legal system: “[1] to prevent undue and oppressive incarceration prior to trial, [2] to minimize anxiety and concern accompanying public accusation and [3] to limit the possibilities that long delay will impair the ability of an accused to defend himself.” United States v. Ewell, 383 U. S. 116, 120. These demands are both aggravated and compounded in the case of an accused who is imprisoned by another jurisdiction.

At first blush it might appear that a man already in prison under a lawful sentence is hardly in a position to suffer from “undue and oppressive incarceration prior to trial.” But the fact is that delay in bringing such a person to trial on a pending charge may ultimately result in as much oppression as is suffered by one who is jailed without bail upon an untried charge. First, the possibility that the defendant already in prison might receive a sentence at least partially concurrent with the one he is serving may be forever lost if trial of the pending charge is postponed. Secondly, under procedures now widely practiced, the duration of his present imprisonment may be increased, and the conditions under which he must serve his sentence greatly worsened, by the pendency of another criminal charge outstanding against him.

And while it might be argued that a person already in prison would be less likely than others to be affected by “anxiety and concern accompanying public accusation,” there is reason to believe that an outstanding untried charge (of which even a convict may, of course, be innocent) can have fully as depressive an effect upon a prisoner as upon a person who is at large. Cf. Klopfer v. North Carolina, supra, at 221-222. In the opinion of the former Director of the Federal Bureau of Prisons,

“[I]t is in their effect upon the prisoner and our attempts to rehabilitate him that detainers are most corrosive. The strain of having to serve a sentence with the uncertain prospect of being taken into the custody of another state at the conclusion interferes with the prisoner’s ability to take maximum advantage of his institutional opportunities. His anxiety and depression may leave him with little inclination toward self-improvement.”

Finally, it is self-evident that “the possibilities that long delay will impair the ability of an accused to defend himself” are markedly increased when the accused is incarcerated in another jurisdiction. Confined in a prison, perhaps far from the place where the offense covered by the outstanding charge allegedly took place, his ability to confer with potential defense witnesses, or even to keep track of their whereabouts, is obviously impaired. And, while “evidence and witnesses disappear, memories fade, and events lose their perspective,” a man isolated in prison is powerless to exert his own investigative efforts to mitigate these erosive effects of the passage of time.

Despite all these considerations, the Texas Supreme Court has said that the State is under no duty even to attempt to bring a man in the petitioner’s position to trial, because “[t]he question is one of power and authority and is in no way dependent upon how or in what manner the federal sovereignty may proceed in a discretionary way under the doctrine of comity.” Yet Texas concedes that if it did make an effort to secure a federal prisoner’s appearance, he would, in fact, “be produced for trial in the state court.” This is fully confirmed by the memorandum that the Solicitor General has filed in the present case:

“[T]he Bureau of Prisons would doubtless have made the prisoner available if a writ of habeas corpus ad prosequendum had been issued by the state court. It does not appear, however, that the State at any point sought to initiate that procedure in this case.”

In view of these realities, we think the Texas court was mistaken in allowing doctrinaire concepts of “power” and “authority” to submerge the practical demands of the constitutional right to a speedy trial. Indeed, the rationale upon which the Texas Supreme Court based its denial of relief in this case was wholly undercut last Term in Barber v. Page, 390 U. S. 719. In that case we dealt with another Sixth Amendment guarantee — the right of confrontation. In holding that Oklahoma could not excuse its failure to produce a prosecution witness simply because he was in a federal prison outside the State, we said:

“We start with the fact that the State made absolutely no effort to obtain the presence of Woods at trial other than to ascertain that he was in a federal prison outside Oklahoma. It must be acknowledged that various courts and commentators have heretofore assumed that the mere absence of a witness from the jurisdiction was sufficient ground for dispensing with confrontation on the theory that ‘it is impossible to compel his attendance, because the process of the trial Court is of no force without the jurisdiction, and the party desiring his testimony is therefore helpless/ 5 Wigmore, Evidence § 1404 (3d ed. 1940).
“Whatever may have been the accuracy of that theory at one time, it is clear that at the present time increased cooperation between the States themselves and between the States and the Federal Government has largely deprived it of any continuing validity in the criminal law. . . .
“. . . The Court of Appeals majority appears to have reasoned that because the State would have had to request an exercise of discretion on the part of federal authorities, it was under no obligation to make any such request. Yet as Judge Aldrich, sitting by designation, pointed out in dissent below, ‘the possibility of a refusal is not the equivalent of asking and receiving a rebuff.’ 381 F. 2d, at 481. In short, a witness is not ‘unavailable’ for purposes of the foregoing exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial. The State made no such effort here, and, so far as this record reveals, the sole reason why Woods was not present to testify in person was because the State did not attempt to seek his presence. The right of confrontation may not be dispensed with so lightly.” 390 U. S., at 723-725 (footnotes omitted).

By a parity of reasoning we hold today that the Sixth Amendment right to a speedy trial may not be dispensed with so lightly either. Upon the petitioner’s demand, Texas had a constitutional duty to make a diligent, good-faith effort to bring him before the Harris County court for trial.

The order of the Supreme Court of Texas is set aside, and the case is remanded to that court for further proceedings not inconsistent with this opinion.

It is so ordered.

Mr. Justice Black

concurs in the opinion and judgment of the Court, but he would make it absolutely clear to the Supreme Court of Texas that so far as the federal constitutional question is concerned its judgment is set aside only for the purpose of giving the petitioner a trial, and that if a trial is given the case should not be dismissed.

Separate opinion of

Mr. Justice Harlan.

I agree that a State may not ignore a criminal accused’s request to be brought to trial, merely because he is incarcerated in another jurisdiction, but that it must make a reasonable effort to secure his presence for trial. This much is required by the Due Process Clause of the Fourteenth Amendment, and I would rest decision of this case on that ground, and not on “incorporation” of the Sixth Amendment’s speedy-trial provision into the Pour-teenth. See my opinion concurring in the result in Klopfer v. North Carolina, 386 U. S. 213, 226 (1967).

I believe, however, that the State is entitled to more explicitness from us as to what is to be expected of it on remand than what is conveyed merely by the requirement that further proceedings not be “inconsistent with this opinion.” Must the charges against petitioner be dismissed? Or may Texas now secure his presence and proceed to try him? If petitioner contends that he has been prejudiced by the nine-year delay, how is this claim to be adjudicated?

This case is one of first impression for us, and decides a question on which the state and lower federal courts have been divided. Under these particular circumstances, I do not believe that Texas should automatically forfeit the right to try petitioner. If the State still desires to bring him to trial, it should do so forthwith. At trial, if petitioner makes a prima facie showing that he has in fact been prejudiced by the State’s delay, I would then shift to the State the burden of proving the contrary.

Mr. Justice White,

concurring.

I join the opinion of the Court, understanding its remand of the cause “for further proceedings not inconsistent with this opinion” to leave open the ultimate question whether Texas must dismiss the criminal proceedings against the petitioner. The Texas court’s erroneous reliance on the fact of incarceration elsewhere prevented it from reaching the other facets of this question, which may now be adjudicated in the manner permitted by Texas procedure.

       “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . U. S. Const., Amdt. VI.

       On May 5, 1960, the sheriff of Harris County notified the warden at Leavenworth that a warrant for the petitioner’s arrest was outstanding, and asked for notice of “the minimum release date.” That date is apparently January 6, 1970.

       Most of the facts have been stipulated.

       See also Lawrence v. State, 412 S. W. 2d 40.

       For this proposition the court cited its 40-year-old decision in Moreau v. Bond, 114 Tex. 468, 271 S. W. 379. The court in that case said:
      “Those rights, fundamental in their nature, which have been guaranteed by the Bill of Rights cannot be the subject of judicial discretion. Judicial discretion is a legal discretion and not a personal discretion; a legal discretion to be exercised in conformity to the Constitution and the laws of the land. It is only in the absence of positive law or fixed rule that the judge may decide by his view of expediency or of the demands of justice or equity. The Bill of Rights, Section 10 of Article I of the Constitution, provides: ‘In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury’....
      “None of the reasons suggested, either in the order overruling relator’s motion for trial or in the answer to the petition for mandamus here, are good or have any foundation in law or justice. Certainly, under our Constitution and our laws, the relator is entitled to a trial on the charge against him.” 114 Tex., at 470, 271 S. W., at 379-380.
      The basis of the decision thus appears to have been the speedy-trial guarantee contained in the state constitution.

       “Today, each of the 50 States guarantees the right to a speedy trial to its citizens.” Klopfer v. North Carolina, supra, at 226; see Note, The Right to a Speedy Criminal Trial, 57 Col. L. Rev. 846, 847 (1957); cf. Note, The Lagging Right to a Speedy Trial, 51 Va. L. Rev. 1587 (1965).

       See Schindler, Interjurisdictional Conflict and the Right to a Speedy Trial, 35 U. Cin. L. Rev. 179, 182-183 (1966).

       See, e. g., Evans v. Mitchell, 200 Kan. 290, 436 P. 2d 408 (holding that Kansas had no duty to bring to trial a person serving a 15-year sentence in a Washington prison, although the pendency of the Kansas charge prevented any possibility of clemency or conditional pardon in Washington and made it impossible for the prisoner to take part in certain rehabilitation programs or to become a trusty in the Washington prison). The existence of an outstanding criminal charge no longer automatically makes a prisoner ineligible for parole in the federal prison system. 28 CFR § 2.9 (1968); see Rules of the United States Board of Parole 17-18 (1965). But as late as 1959 the Director of the Federal Bureau of Prisons wrote: “Today the prisoners with detainers are evaluated individually but there remains a tendency to consider them escape risks and to assign them accordingly. In many instances this evaluation and decision may be correct, for the detainer can aggravate the escape potentiality of a prisoner.” Bennett, “The Last Full Ounce,” 23 Fed. Prob. No. 2, p. 20, at 21 (1959). See also Note, Detainers and the Correctional Process, 1966 Wash. U. L. Q. 417, 418-423.

       Bennett, supra, n. 8, at 21; see Walther, Detainer Warrants and the Speedy Trial Provision, 46 Marq. L. Rev. 423, 427-428 (1963).

       Note, Effective Guaranty of a Speedy Trial for Convicts in Other Jurisdictions, 77 Yale L. J. 767, 769 (1968).

        Cooper v. State, 400 S. W. 2d 890, 892. The only other basis suggested by the Texas Supreme Court for its denial of relief in Cooper was the expense that would be involved in bringing a federal prisoner to trial, the court noting that a directive of the Federal Bureau of Prisons provided that “satisfactory arrangements for payment of expenses [must be] made before the prisoner is actually removed to the place of trial.” Id., at 891. But the expense involved in effectuating an occasional writ of habeas corpus ad prosequendum would hardly be comparable to what is required to implement other constitutional rights, e. g., the appointment of counsel for every indigent defendant. Gideon v. Wainwright, 372 U. S. 335. And custodial as well as transportation expenses would also be incurred if the State brought the petitioner to trial after his federal sentence had run. If the petitioner is, as the State maintains, not an indigent, there is nothing to prevent a fair assessment of necessary expenses against him. Finally, the short and perhaps the best answer to any objection based upon expense was given by the Supreme Court of Wisconsin in a case much like the present one: “We will not put a price tag upon constitutional rights.” State ex rel. Fredenberg v. Byrne, 20 Wis. 2d 504, 512, 123 N. W. 2d 305, 310.

        Cooper v. State, supra, at 891.

       That memorandum also states:
      “It is the policy of the United States Bureau of Prisons to encourage the expeditious disposition of prosecutions in state courts against federal prisoners. The normal procedure under which production is effected is pursuant to a writ ad prosequendum from the state court. Almost invariably, the United States has complied with such writs and extended its cooperation to the state authorities. The Bureau of Prisons informs us that removals are normally made by United States marshals, with the expenses borne by the state authorities. In some instances, to mitigate the cost to the State, the Bureau of Prisons has removed an inmate to a federal facility close to the site of prosecution. In a relatively small number of instances, prisoners have been produced pursuant to 18 U. S. C. § 4085, which provides in part:
      “ ‘Whenever any federal prisoner has been indicted, informed against, or convicted of a felony in a court of record of any State or the District of Columbia, the Attorney General shall, if he finds it in the public interest to do so, upon the request of the Governor or the executive authority thereof, and upon the presentation of a certified copy of such indictment, information or judgment of conviction, cause such a person, prior to his release', to be transferred to a penal or correctional institution within such State or District.’ ”