author: Mr. Justice Douglas Mr. Justice White,

text:
    ELFBRANDT v. RUSSELL et al.
    No. 656.
    Argued February 24, 1966.
    Decided April 18, 1966.

      W. Edward Morgan argued the cause and filed a brief for petitioner.

      Philip M. Haggerty, Special Counsel to the Attorney General of Arizona, argued the cause for respondents. With him on the brief was Darrell F. Smith, Attorney General.
   Mr. Justice Douglas

delivered the opinion of the Court.

This case, which involves questions concerning the constitutionality of an Arizona Act requiring an oath from state employees, has been here before. We vacated the judgment of the Arizona Supreme Court which had sustained the oath (94 Ariz. 1, 381 P. 2d 554) and remanded the cause for reconsideration in light of Baggett v. Bullitt, 377 U. S. 360. See 378 U. S. 127. On reconsideration the Supreme Court of Arizona reinstated the original judgment. 97 Ariz. 140, 397 P. 2d 944. The case is here on certiorari. 382 U. S. 810.

The oath reads in conventional fashion as follows:

“I, (type or print name) do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution and laws of the State of Arizona; that I will bear true faith and allegiance to the same, and defend them against all enemies, foreign and domestic, and that I will faithfully and impartially discharge the duties of the office of (name of office) according to the best of my ability, so help me God (or so I do affirm).”

The Legislature put a gloss on the oath by subjecting to a prosecution for perjury and for discharge from public office anyone who took the oath and who “knowingly and wilfully becomes or remains a member of the communist party of the United States or its successors or any of its subordinate organizations” or “any other organization” having for “one of its purposes” the overthrow of the government of Arizona or any of its political subdivisions where the employee had knowledge of the unlawful purpose. Petitioner, a teacher and a Quaker, decided she could not in good conscience take the oath, not knowing what it meant and not having any chance to get a hearing at which its precise scope and meaning could be determined. This suit for declaratory relief followed. On our remand the Arizona Supreme Court said that the gloss on the oath is “not afflicted” with the many uncertainties found potentially punishable in Baggett v. Bullitt, supra.

“Nor does it reach endorsements or support for Communist candidates for office nor a lawyer who represents the Communist Party, or its members, nor journalists who defend the Communist Party, its rights, or its members. Such conduct is neither an act nor in aid of an act attempting to overthrow the government by force and violence.
“It is our conclusion that the portions of the Arizona act here considered do not forbid or require conduct in terms so vague that men of common intelligence must necessarily guess at the meaning and differ as to their application.” 97 Ariz., at 147, 397 P. 2d, at 948.

Mr. Justice Bernstein, in dissent, responded that the majority had failed to consider the so-called “membership clause” of the oath and accompanying statutory gloss:

“Let us consider a scientist, a teacher in one of our universities. He could not know whether membership is prohibited in an international scientific organization which includes members from neutralist nations and Communist bloc nations — the latter admittedly dedicated to the overthrow of our government and which control the organization — even though access to the scientific information of the organization is available only to its members.
“Though all might agree that the principal purpose of such an organization is scientific, the statute makes his membership a crime if any subordinate purpose is the overthrow of the state government. The vice of vagueness here is that the scientist cannot know whether membership in the organization will result in prosecution for a violation of § 38-231, subd. E or in honors from his university for the encyclopedic knowledge acquired in his field in part through his membership.” Id., at 147-148, 397 P. 2d, at 949.

We recognized in Scales v. United States, 367 U. S. 203, 229, that “quasi-political parties or other groups . . . may embrace both legal and illegal aims.” We noted that a “blanket prohibition of association with a group having both legal and illegal aims” would pose “a real danger that legitimate political expression or association would be impaired.” The statute with which we dealt in Scales, the so-called “membership clause” of the Smith Act (18 U. S. C. § 2385), was found not to suffer from this constitutional infirmity because, as the Court construed it, the statute reached only “active” membership (id., at 222) with the “specific intent” of assisting in achieving the unlawful ends of the organization (id., at 229-230). The importance of this limiting construction from a constitutional standpoint was emphasized in Noto v. United States, 367 U. S. 290, 299-300, decided the same day:

“[I]t should also be said that this element of the membership crime [the defendant’s ‘personal criminal purpose to bring about the overthrow of the Government by force and violence’], like its others, must be judged strictissimi juris, for otherwise there is a danger that one in sympathy with the legitimate aims of such an organization, but not specifically intending to accomplish them by resort to violence, might be punished for his adherence to lawful and constitutionally protected purposes, because of other and unprotected purposes which he does not necessarily share.”

Any lingering doubt that proscription of mere knowing membership, without any showing of “specific intent,” would run afoul of the Constitution was set at rest by our decision in Aptheker v. Secretary of State, 378 U. S. 500. We dealt there with a statute which provided that no member of a Communist organization ordered by the Subversive Activities Control Board to register shall apply for or use a passport. We concluded that the statute would not permit a narrow reading of the sort we gave § 2385 in Scales. See 378 U. S., at 511, n. 9. The statute, as we read it, covered membership which was not accompanied by a specific intent to further the unlawful aims of the organization, and we held it unconstitutional.

The oath and accompanying statutory gloss challenged here suffer from an identical constitutional infirmity. One who subscribes to this Arizona oath and who is, or thereafter becomes, a knowing member of an organization which has as “one of its purposes” the violent overthrow of the government, is subject to immediate discharge and criminal penalties. Nothing in the oath, the statutory gloss, or the construction of the oath and statutes given by the Arizona Supreme Court, purports to exclude association by one who does not subscribe to the organization’s unlawful ends. Here as in Baggett v. Bullitt, supra, the “hazard of being prosecuted for knowing but guiltless behavior” (id., at 373) is a reality. People often label as “communist” ideas which they oppose; and they often make up our juries. “[P]rosecutors too are human.” Cramp v. Board of Public Instruction, 368 U. S. 278, 287. Would a teacher be safe and secure in going to a Pugwash Conference? Would it be legal to join a seminar group predominantly Communist and therefore subject to control by those who are said to believe in the overthrow of the Government by force and violence? Juries might convict though the teacher did not subscribe to the wrongful aims of the organization. And there is apparently no machinery provided for getting clearance in advance.

Those who join an organization but do not share its unlawful purposes and who do not participate in its unlawful activities surely pose no threat, either as citizens or as public employees. Laws such as this which are not restricted in scope to those who join with the “specific intent” to further illegal action impose, in effect, a conclusive presumption that the member shares the unlawful aims of the organization. See Aptheker v. Secretary of State, supra, at 511. The unconstitutionality of this Act follows a fortiori from Speiser v. Randall, 357 U. S. 513, where we held that a State may not even place on an applicant for a tax exemption the burden of proving that he has not engaged in criminal advocacy.

This Act threatens the cherished freedom of association protected by the First Amendment, made applicable to the States through the Fourteenth Amendment. Baggett v. Bullitt, supra; Cramp v. Board of Public Instruction, supra. Cf. N. A. A. C. P. v. Alabama, 357 U. S. 449, 460 et seq.; Gibson v. Florida Legislative Committee, 372 U. S. 539, 543-546. And, as a committee of the Arizona Legislature which urged adoption of this law itself recognized, public employees of character and integrity may well forgo their calling rather than risk prosecution for perjury or compromise their commitment to intellectual and political freedom:

“The communist trained in fraud and perjury has no qualms in taking any oath; the loyal citizen, conscious of history’s oppressions, may well wonder whether the medieval rack and torture wheel are next for the one who declines to take an involved negative oath as evidence that he is a True Believer.”

A statute touching those protected rights must be “narrowly drawn to define and punish specific conduct as constituting a clear and present danger to a substantial interest of the State.” Cantwell v. Connecticut, 310 U. S. 296, 311. Legitimate legislative goals “cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.” Shelton v. Tucker, 364 U. S. 479, 488. And see Louisiana v. N. A. A. C. P., 366 U. S. 293, 296-297. As we said in N. A. A. C. P. v. Button, 371 U. S. 415, 432-433:

“The objectionable quality of . . . overbreadth does not depend upon absence of fair notice to a criminally accused or upon unchanneled delegation of legislative powers, but upon the danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application. . . . These freedoms are delicate and vulnerable,' as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions. . . .”

A law which applies to membership without the “specific intent” to further the illegal aims of the organization infringes unnecessarily on protected freedoms. It rests on the doctrine of “guilt by association” which has no place here. See Schneiderman v. United States, 320 U. S. 118, 136; Schware v. Board of Bar Examiners, 353 U. S. 232, 246. Such a law cannot stand.

Reversed.

Mr. Justice White,

with whom Mr. Justice Clark, Mr. Justice Harlan and Mr. Justice Stewart concur,

dissenting.

According to unequivocal prior holdings of this Court, a State is entitled to condition public employment upon its employees abstaining from knowing membership in the Communist Party and other organizations advocating the violent overthrow of the government which employs them; the State is constitutionally authorized to inquire into such affiliations and it may discharge those .who refuse to affirm or deny them. Gerende v. Board of Supervisors of Elections, 341 U. S. 56; Garner v. Board of Public Works, 341 U. S. 716; Adler v. Board of Education, 342 U. S. 485; Beilan v. Board of Education, 357 U. S. 399; Lerner v. Casey, 357 U. S. 468; Nelson v. County of Los Angeles, 362 U. S. 1; see also Wieman v. Updegraff, 344 U. S. 183; Slochower v. Board of Education, 350 U. S. 551. The Court does not mention or purport to overrule these cases; nor does it expressly hold that a State must retain, even in its most sensitive positions, those who lend such support as knowing membership entails to those organizations, such as the Communist Party, whose purposes include the violent destruction of democratic government.

Under existing constitutional law, then, Arizona is free to require its teachers to refrain from knowing membership in the designated organizations and to bar from employment all knowing members as well as those who refuse to establish their qualifications to teach by executing the oath prescribed by the statute. Arizona need not retain those employees on the governor’s staff, in the Phoenix police department or in its schools who insist on holding membership in and lending their name and influence to those organizations aiming at violent overthrow. Adler v. Board of Education, 342 U. S. 485.

It would seem, therefore, that the Court’s judgment is aimed at the criminal provisions of the Arizona law which expose an employee to a perjury prosecution if he swears falsely about membership when he signs the oath or if he later becomes a knowing member while remaining in public employment. But the State is entitled to condition employment on the absence of knowing membership; and if an employee obtains employment by falsifying his present qualifications, there is no sound constitutional reason for denying the State the power to treat such false swearing as perjury. Alire v. United States, 313 F. 2d 31; Ogden v. United States, 303 F. 2d 724. By the same token, since knowing membership in specified organizations is a valid disqualification, Arizona cannot sensibly be forbidden to make it a crime for a person, while a state employee, to join an organization knowing of its dedication to the forceful overthrow of his employer and knowing that membership disqualifies him for state employment. The crime provided by the Arizona law is not just the act of becoming a member of an organization but it is that membership plus concurrent public employment. If a State may disqualify for knowing membership and impose criminal penalties for falsifying employment applications, it is likewise within its powers to move criminally against the employee who knowingly engages in disqualifying acts during his employment. If a government may remove from office, 5 U. S. C. § 118i (1964 ed.), United Public Workers of America v. Mitchell, 330 U. S. 75, and criminally punish, 18 U. S. C. § 607 (1964 ed.), its employees who engage in certain political activities, it is unsound to hold that it may not, on pain of criminal penalties, prevent its employees from affiliating with the Communist Party or other organizations prepared to employ violent means to overthrow constitutional government. Our Constitution does not require this kind of protection for the secret proselyting of government employees into the Communist Party, an organization which has been found to be controlled by a foreign power and to be dedicated to the overthrow of the government by any illegal means necessary to achieve this end. Communist Party of the United States v. Subversive Activities Control Board, 367 U. S. 1.

There is nothing in Scales v. United States, 367 U. S. 203, Noto v. United States, 367 U. S. 290, or Aptheker v. Secretary of State, 378 U. S. 500, dictating the result reached by the Court. Scales involved the construction of the Smith Act and a holding that the membership clause did not reach members who knew of the illegal aims of the Party but lacked an active membership and an intent to further the illegal ends. Noto also involved a construction of the Smith Act, the conviction there being reversed for insufficient evidence. Aptheker struck down a provision denying passports to members of the Communist Party which applied “whether or not one knows or believes that he is associated with an organization operating to further aims of the world Communist movement .... The provision therefore sweeps within its prohibition both knowing and unknowing members.” 378 U. S., at 510. In any event, Scales, Noto and Aptheker did not deal with the government employee who is a knowing member of the Communist Party. They did not suggest that the State or Federal Government should be prohibited from taking elementary precautions against its employees forming knowing and deliberate affiliations with those organizations who conspire to destroy the government by violent means. Speiser v. Randall, 357 U. S. 513, also relied upon by the majority, carefully preserved Gerende and Garner for reasons which I think are equally applicable to the Arizona oath and statute. In my view, therefore, the Court errs in holding that the Act is overbroad because it includes state employees who are knowing members but who may not be active and who may lack the specific intent to further the illegal aims of the Party.

Even if Arizona may not take criminal action against its law enforcement officers or its teachers who become Communists knowing of the purposes of the Party, the Court’s judgment overreaches itself in invalidating this Arizona statute. Whether or not Arizona may make knowing membership a crime, it need not retain the member as an employee and is entitled to insist that its employees disclaim, under oath, knowing membership in the designated organizations and to condition future employment upon future abstention from membership. It is, therefore, improper to invalidate the entire statute in this declaratory judgment action. If the imposition of criminal penalties under the present Act is invalid, the Court should so limit its holding and remand the case to the Arizona courts to determine the severability of the criminal provisions under the severability provisions of the Act itself. Arizona Communist Control Act of 1961, Ariz. Laws 1961, c. 108, § 8.

       Ariz. Rev. Stat. §38-231 (1965 Supp.).

         Id., §E reads as follows:
      “Any officer or employee as defined in this section having taken the form of oath or affirmation prescribed by this section, and knowingly or wilfully at the time of subscribing the oath or affirmation, or at any time thereafter during his term of office or employment, does commit or aid in the commission of any act to overthrow by force or violence the government of this state or of any of its political subdivisions, or advocates the overthrow by force or violence of the government of this state or of any of its political subdivisions, or during such term of office or employment knowingly and wilfully becomes or remains a member of the communist party of the United States or its successors or any of its subordinate organizations or any other organization having for one of its purposes the overthrow by force or violence of the government of the state of Arizona or any of its political subdivisions, and said officer or employee as defined in this section prior to becoming or remaining a member of such organization or organizations had knowledge of said unlawful purpose of said organization or organizations, shall be guilty of a felony and upon conviction thereof shall be subject to all the penalties for perjury; in addition, upon conviction under this section, the officer or employee shall be deemed discharged from said office or employment and shall not be entitled to any additional compensation or any other emoluments or benefits which may have been incident or appurtenant to said office or employment.”

       Cf. Rowoldt v. Perfetto, 355 U. S. 115, 120; Gastelum-Quinones v. Kennedy, 374 U. S. 469.

       The Pugwash Conferences, A Staff Analysis, Subcommittee to Investigate the Administration of the Internal Security Act, Senate Committee on the Judiciary, Committee Print, 87th Cong., 1st Sess. (1961); Rabinowitch, Pugwash — History and Outlook, 13 Bull. Atomic Sci. 243 (1957); Topchiev, Comments on Pugwash: From the East, 14 Bull. Atomic Sci. 118 (1958); Thirring, Comments on Pugwash: From the West, id,., at 121; Rabinowitch, The Stowe Conferences, 17 Bull. Atomic Sci. 382 (1961); Statement of International Pugwash Continuing Committee: Pugwash XIII, Bull. Atomic Sci. 43-45 (December 1964); Documents of Second Pugwash Conference of Nuclear Scientists (March 31-April 11, 1958).

       Petitioner would, of course, have a hearing at a perjury trial, after the event. And one member of the Arizona Supreme Court felt that petitioner, having tenure, would be entitled to a hearing before she was discharged from her teaching position. See Elfbrandt v. Russell, 94 Ariz. 1, 17-18, 381 P. 2d 554, 565 (Bernstein, C. J., concurring). But even that is not authoritatively decided by the court; indeed, another opinion states this to be a minority view, 94 Ariz., at 18, 381 P. 2d, at 566 (separate opinion of Jennings, J.).

       Report of the Judiciary Committee in Support of the Committee Amendment to H. B. 115, Journal of the Senate, 1st Reg. Sess., 25th Legislature of the State of Arizona, p. 424 (1961).

       These cases uphold the constitutionality of 18 U. S. C. § 1001 (1964), which makes it a crime to make false statements with regard to any matter within the jurisdiction of any department or agency of the United States. Many States have comparable statutes, e. g., Cal. Govt. Code §§ 1368, 3108; Mass. Gen. Laws Ann., c. 264, §§ 14, 15; Okla. Stat. Ann., Tit. 51, §§36.5, 36.6.

       See the findings of Congress, Subversive Activities Control Act of 1950, 50 U. S. C. § 781 (1964 ed.), and of the Arizona Legislature, Arizona Communist Control Act of 1961, Ariz. Laws 1961, c. 108, § 2.

       On remand from this.Court, 378 U. S. 127, the Arizona Supreme Court gave the oath and statute a narrow reading that eliminated their vulnerability to the charge of being unconstitutionally vague. 97 Ariz. 140, 397 P. 2d 944. See Baggett v. Bullitt, 377 U. S. 360. Although the majority on remand did not dwell on the membership clause, this, it seems to me, is because its meaning is clear from the face of the statute. By its own terms, unless the organization joined actually has as a purpose unlawful revolution and the employee actually knows of this purpose, he commits no crime. “And since the constitutional vice in a vague or indefinite statute is the injustice to the accused in placing him on trial for an offense, the nature of which he is given no fair warning, the fact that punishment is restricted to acts done with knowledge that they contravene the statute makes this objection untenable.” American Communications Assn. v. Douds, 339 U. S. 382, 413.


source: Caselaw Access Project

author: Per Curiam

license: Public Domain

text:
    LOUISIANA v. MISSISSIPPI et al.
    No. 14,
    Original.
    Argued November 16, 1965.
    Decided April 18, 1966.

      John L. Madden and Edward M. Carmouche, Assistant Attorneys General of Louisiana, argued on the exceptions to the Report of the Special Master on behalf of the plaintiff. With them on the briefs were Jack P. F. Gremittion, Attorney General, Carroll Buck, First Assistant Attorney General, and John A. Bivins, Special Counsel to the Attorney General.

      Marlin R. McLendon, Assistant Attorney General of Mississippi, and Landman Teller, Special Assistant to the Attorney General, argued on the exceptions to the Report of the Special Master on behalf of the defendants. With them on the briefs were Joe T. Patterson, Attorney General, and George W. Rogers, Jr.

      M. M. Roberts, Bernard J. Caillouet and E. L. Brunini filed a brief for Humble Oil & Refining Co. in support of its exceptions to the Report of the Special Master.
   Per Curiam

and Decree.

Upon consideration of the Report filed June 7, 1965, by Senior Judge Marvin Jones, Special Master, and the exceptions thereto, it is now adjudged, ordered, and decreed as follows:

(1) All exceptions are overruled and the Report is in all things confirmed.

(2) The true boundary between the States of Louisiana and Mississippi in the area of the Mississippi River known as Deadman’s Bend on the several dates mentioned is determined to be as follows:

At all times the live thalweg has been the true boundary.

On October 3, 1952, the live thalweg was a gradually curving line running southward from the foot of Glass-cock Cutoff, and east of the future location of Louisiana State Well No. 1 by 230 feet, to the end of Deadman’s Bend at range 334.5 AHP. This line is described below by latitude and longitude and is drawn on Special Master Exhibit No. 1.

On April 10, 1964, the live thalweg was a gradually curving line running southward from the foot of Glass-cock Cutoff, and west of Louisiana State Well No. 1 by 850 feet, to the end of Deadman’s Bend at range 334.5 AHP. This line is described below by latitude and longitude and is drawn on Special Master Exhibit No. 1.

At all times between October 3, 1952, and April 10, 1964, the live thalweg has moved at a constant rate. The boundary location for any intervening period at any point in Deadman’s Bend (from the foot of Glasscock Cutoff to range 334.5 AHP) is to be determined mathematically by calculating the constant rate of change for that particular place in Deadman’s Bend, using the 1952 and 1964 thalwegs described heretofore and the appropriate time differentials.

At the latitude of Louisiana State Well No. 1 the location of the boundary was as follows from October 3, 1952, to April 10, 1964:

October 3, 1952 ................ 230 feet east of well
April 27, 1954 .................. 80 feet east of well
February 27, 1955.............. Directly above the well
April 10, 1956.................. 102 feet west of well
April 10, 1957.................. 195 feet west of well
April 10, 1958.................. 289 feet west of well
April 10, 1959.................. 382 feet west of well
April 10, 1960.................. 476 feet west of well
April 10, 1961.................. 569 feet west of well
April 10, 1962 .................. 663 feet west of well
April 10, 1963 .................. 756 feet west of well
April 10, 1964.................. 850 feet west of well

The Louisiana State Well No. 1 became located inside the boundary of Mississippi on February 28, 1955.

The description of the October 3, 1952, live thalweg by geodetic positions (North American Datum) is as follows:

Beginning at the foot of Glasscock Cutoff at a point on range 338.3 AHP, which is Lat. 31°19'07.0"— Long. 91°30'33.5".
Thence running southward through the following points:
Latitude Longitude
91°30'37.0" 31°18'57.5"
91°30'39.0" 31018'47.5"
91°30'40.0" 31°18'37.0"
91°30'39.5" 3V1&'27.W'
91°30'39.0" 31°18'17.0"
91°30'38.0" 31°18'07.0"
91°30'38.0" 31°17'57.5"
91°30'38.0" 31°17/47.0"
91°30'37.0" 31°17/37.0,/
91°30'36.5" 31° 17'27.0"
91°30'36.0" 31°17'17.0"
91°30'35.0" 31°17,07.0"
91°30'33.5" 31016'57.5"
91°30'32.5" 31°16'4:7.0"
91°30'34.0" 31°16'42.5"
91°30'37.0" 31°16'38.0"
91°30'43.0" srie^ob"
91°30'51.0" 31°16,22.5,/
91°31'00.0" 31016'17.0"
9io3i'io.o" 31°16'12.0"
91°31'21.0" 31°16,08.0"
91°31'32.0" 31°16'05.5"
91o31'42.0" 31016'03.5"

The description of the April 10, 1964, live thalweg by geodetic positions (North American Datum) is as follows:

Beginning at the foot of Glasscock Cutoff at a point on range 338.3 AHP, which is Lat. 31°19'07.0"— Long. 91°30'38.5".

Thence running southward through the following points:

Latitude Longitude
91°30'40.5" 31°18'57.5"
91°30'42.5" 3i°i8'48.o"
91°30'44.0" 31°18'38.0"
91°30'46.0" 31°18'28.0"
91°30'47.0" 3i°i8T8.5"
91°30'48.5" 31°18'08.5"
91°30'50.0" 31°17'59.0"
91°30'52.0" 31°17'49.0"
91°30'52.5" 31°17'39.0"
91°30'52.5" 31°17'29.5"
91°30'52.5" 31°17/20.0'/
91°30'52.0" 31°17'10.0"
91°30'52.0" 31°17'00.5"
91°30'52.5" 31°16'51.0"
91°30'53.0" 31°16'41.0"
91°30'55.0" 31°16'36.0"
9i°30'58.0" 31°16'32.0"
91°31'04.5" 31°16'24.0"
91°31'11.5" 31°16'16.0"
91°31'18.5" 3i°i6'09.0"
91°31'28.0" 31°16'03.0"
91°31'38.0" 31°15'59.0"

(3) As it appears that the Special Master has completed his work, he is hereby discharged with the thanks of the Court.

(4) The costs of this suit are to be equally divided between the two States.


author: Per Curiam.

text:
    HOLT et al. v. ALLEGHANY CORP. et al.
    No. 131.
    Argued March 21, 1966.
    Decided April 18, 1966.

      Stuart N. Updike argued the cause for petitioners in both cases. With him on the briefs were Lee W. Meyer, Ronald S. Daniels and Richard J. Barnes.

      Mark F. Hughes and Walter R. Mansfield argued the cause for respondents in both cases. With Mr. Hughes on the brief for respondent Alleghany Corp. were Allan F. Conwill and Vincent R. FitzPatrick. With Mr. Mansfield on the briefs for respondent Allan P. Kirby were Eugene V. Rostow and Breck P. McAllister; for respondent Fred M. Kirby were John E. Tobin and Ben Vinar; and for respondent Ireland were Eugene V. Rostow and John J. McCann.

      Simon V. Haberman filed a brief for Randolph Phillips in No. 132, as amicus curiae, urging reversal.

      Together with No. 132, Holt et al. v. Kirby et al., also on certiorari to the same court.

   Per Curiam.

The writs of certiorari are dismissed as improvidently granted.

Mr. Justice Black dissents from dismissal of the writs and would reverse the judgments of the Court of Appeals and district courts substantially for the reasons stated in Judge Friendly’s dissent in the Court of Appeals, 333 F. 2d 327, 338.

Mr. Justice Harlan and Mr. Justice White dissent from the dismissal of the writs, believing that these cases having been taken for review should be adjudicated on the merits.

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


text:
    AMERICAN GUILD OF VARIETY ARTISTS v. SMITH, dba SMITH ENTERTAINMENT AGENCY et al.
    No. 808.
    Decided April 18, 1966.

      William Power Maloney for petitioner.

      Jerome G. Raidt for respondent.
   Per Curiam.

The petition for a writ of certiorari is granted. The judgment of the Court of Appeals is vacated and the case is remanded to that court for further proceedings in light of United Mine Workers of America v. Gibbs, 383 U. S. 715.

Mr. Justice Douglas dissents.


text:
    ENGLE v. KERNER et al.
    No. 1067.
    Decided April 18, 1966.
   Per Curiam.

The appeal is dismissed.


text:
    HOLLINGSHEAD v. WAINWRIGHT, CORRECTIONS DIRECTOR.
    No. 457,
    Misc.
    Decided April 18, 1966.
    Petitioner pro se.

      Earl Faircloth, Attorney General of Florida, and James G. Mahorner, Assistant Attorney General, for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is reversed. Douglas v. California, 372 U. S. 353.

Mr. Justice Harlan and Mr. Justice Stewart are of the opinion that the petition for a writ of certiorari should be denied.


text:
    LONG v. PARKER, WARDEN.
    No. 821,
    Misc.
    Decided April 18, 1966.
    Petitioner pro se.

      Solicitor General Marshall for respondent.
   Per Curiam.

Upon consideration of the suggestion of the Solicitor General and an examination of all of the papers submitted, the motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the Court of Appeals for further proceedings.


text:
    POPE v. DAGGETT et al.
    No. 837,
    Misc.
    Decided April 18, 1966.
    Petitioner pro se.

      Solicitor General Marshall, Assistant Attorney General Doar and David L. Norman for respondents.
   Per Curiam.

Upon consideration of the representations of the Solicitor General that the relief petitioner seeks is presently available due to changes in the applicable prison regulations and upon an examination of all of the papers submitted, the motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the United States District Court for the District of Kansas with instructions to dismiss as moot.


text:
    RICHARDSON v. SECRETARY OF HEALTH, EDUCATION AND WELFARE.
    No. 874,
    Misc.
    Decided April 18, 1966.
    Petitioner pro se.

      Solicitor General Marshall for respondent.
   Per Curiam.

Upon consideration of the suggestion of the Solicitor General and an examination of all of the papers submitted, the motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the Court of Appeals for further proceedings.


author: Mr. Justice Stewart

text:
    JOSEPH E. SEAGRAM & SONS, INC., et al. v. HOSTETTER, CHAIRMAN, NEW YORK STATE LIQUOR AUTHORITY, et al.
    No. 545.
    Argued February 23, 1966.
    Decided April 19, 1966.

      Thomas F. Daly and Jack Goodman argued the cause for appellants. With them on the briefs was Herbert Brownell.

      Ruth Kessler Toch, Acting Solicitor General of New York, argued the cause for appellees. With her on the brief were Louis J. Lejkowitz, Attorney General, and Robert L. Harrison, Assistant Attorney General.

      Fred M. Switzer, Abraham Tunick and Fred M. Switzer III filed a brief for Wine & Spirits Wholesalers of America, Inc., as amicus curiae, urging reversal.
   Mr. Justice Stewart

delivered the opinion of the Court.

This appeal draws in question certain provisions of Chapter 531, 1964 Session Laws of New York, which worked substantial changes in the State’s Alcoholic Beverage Control Law. The appellants are distillers, wholesalers, or importers of distilled spirits, who commenced this action in a New York court for an injunction and declaratory judgment against the appropriate state officials, upon the ground that § 9 of Chapter 531 violates the Federal Constitution in several respects. The trial court upheld the constitutionality of the law, and its judgment was affirmed by the Appellate Division and by the New York Court of Appeals. The appellants brought the case here, and we now affirm the judgment of the Court of Appeals.

Chapter 531 was enacted as the result of a sweeping redirection of New York's policy regulating the sale of liquor in the State. For more than 20 years the Alcoholic Beverage Control Law (hereinafter ABC Law) had required brand owners of alcoholic beverages or their agents to file with the State Liquor Authority monthly schedules listing the bottle and case price to be charged to wholesalers and retailers within the State. These schedules were publicly displayed, and sales were prohibited except at the listed prices. In 1950 the ABC Law was amended by the addition of a section which required brand owners or their agents to file price schedules listing the minimum retail price at which each brand could be sold to consumers and which prohibited retail sales at prices less than those fixed in the schedules. The enforcement of these mandatory minimum retail prices was entrusted to the State Liquor Authority rather than to private action, but the Authority was given no power to determine the reasonableness of the prices that were fixed.

In 1963, against a background of irregularities within the State Liquor Authority and extensive dissatisfaction with the operation of the ABC Law, the Governor of New York appointed a Commission to study the sale and distribution of alcoholic beverages within the State. The Commission sponsored various study papers and issued a series of reports and recommendations. It found unequivocally that compulsory resale price maintenance had had “no significant effect upon the consumption of alcoholic beverages, upon temperance or upon the incidence of social problems related to alcohol.” It also found that New York liquor consumers had been the victims of serious discrimination because of the higher prices and reduced competition fostered by the mandatory minimum price maintenance provision of the law. The Commission therefore recommended the repeal of that provision, and the ultimate response of the legislature was the enactment of Chapter 531.

The legislature did not stop, however, with repeal of the mandatory resale price maintenance provision of the law. In § 9 of Chapter 531 it imposed the additional requirement that the monthly price schedules for sales to wholesalers and retailers filed with the State Liquor Authority must be accompanied by an affirmation that “the bottle and case price of liquor ... is no higher than the lowest price” at which sales were made anywhere in the United States during the preceding month. It is this provision that is the principal object of the appellants’ constitutional attack in this litigation.

Section 9 effects the “no higher than the lowest price” requirement by the addition of paragraphs (d)-(k) to § ioi-b-3 of the ABC Law. The affirmation required by paragraph (d), which must be filed and verified by brand owners or their agents who sell to wholesalers in New York, must cover all sales to wholesalers anywhere in the United States by the brand owner, his agent, or any “related person.” The less extensive affirmation required by paragraph (e), which applies to persons other than brand owners or their agents who file schedules for sales to wholesalers, need only cover sales elsewhere by the person filing the schedule. The affirmation required by paragraph (f), which must be filed by brand owners, their agents, or “related persons” who sell to retailers in New York, must be verified by the brand owner or his agent and must cover all sales to retailers anywhere in the United States by the brand owner, his agent, or any “related person.” The less extensive affirmation required by paragraph (g), which applies to wholesalers who are not “related persons,” need only cover sales elsewhere by the person filing the schedule.

The term “related person” is defined in paragraphs (d) and (f) to include any person, the “exclusive, principal or substantial business of which is the sale of a brand or brands of liquor purchased from” the brand owner or his agent. In consequence, before a “related person” wholesaler may sell a particular brand of liquor to a New York retailer, he must secure an affirmation from the brand owner or his agent that the price charged by the wholesaler is no higher than the lowest price at which the brand was sold to any retailer in any other part of the country by any wholesaler doing “substantial” business with the brand owner. Thus, a brand owner doing business in New York must keep himself informed of the prices charged by all “related persons” throughout the United States.

The scheme of § 9 of Chapter 531 is rounded out by the addition to § 101-b-3 of the ABC Law of paragraph (h), which prohibits sales to wholesalers and retailers of brands for which no affirmation has been filed; paragraph (i), which requires the “lowest price” to reflect all discounts and other allowances to wholesalers and retailers, with the exception of state taxes and delivery costs; and paragraphs (j) and (k), which impose criminal penalties for the filing of a false affirmation.

As a result of a series of stays granted throughout this litigation, the provisions of § 9 have not yet been put into effect. Our concern here, therefore, is only with the constitutionality of those provisions on their face. The appellants attack § 9 on many constitutional fronts. They contend that its provisions place an illegal burden upon interstate commerce, conflict with federal antitrust legislation and thus fall under the Supremacy Clause, and violate both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. We find all these contentions without merit.

Consideration of any state law regulating intoxicating beverages must begin with the Twenty-first Amendment, the second section of which provides that: “The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” As this Court has consistently held, “That Amendment bestowed upon the states broad regulatory power over the liquor traffic within their territories.” United States v. Frankfort Distilleries, 324 U. S. 293, 299. Cf. Nippert v. Richmond, 327 U. S. 416, 425, n. 15. Just two Terms ago we took occasion to reiterate that “a State is totally unconfined by traditional Commerce Clause limitations when it restricts the importation of intoxicants destined for use, distribution, or consumption within its borders.” Hostetter v. Idlewild Liquor Corp., 377 U. S. 324, 330. See State Board of Equalization v. Young’s Market Co., 299 U. S. 59; Mahoney v. Joseph Triner Corp., 304 U. S. 401; Ziffrin, Inc. v. Reeves, 308 U. S. 132; California v. Washington, 358 U. S. 64. Cf. Indianapolis Brewing Co. v. Liquor Comm’n, 305 U. S. 391; Joseph S. Finch & Co. v. McKittrick, 305 U. S. 395. As the Idlewild case made clear, however, the second section of the Twenty-first Amendment has not operated totally to repeal the Commerce Clause in the area of the regulation of traffic in liquor. In Idlewild the ultimate delivery and use of the liquor was in a foreign country, and the Court held that under those circumstances New York could not forbid sales made under the explicit supervision of the United States Customs Bureau, pursuant to laws enacted by Congress under the Commerce Clause for the regulation of commerce with foreign nations. Cf. Dept. of Alcoholic Beverage Control v. Ammex Warehouse Co., 378 U. S. 124; Collins v. Yosemite Park Co., 304 U. S. 518.

Unlike Idlewild, the present case concerns liquor destined for use, distribution, or consumption in the State of New York. In that situation, the Twenty-first Amendment demands wide latitude for regulation by the State. We need not now decide whether the mode of liquor regulation chosen by a State in such circumstances could ever constitute so grave an interference with a company’s operations elsewhere as to make the regulation invalid under the Commerce Clause. See Baldwin v. G. A. F. Seelig, 294 U. S. 511. No such situation is presented in this case. The mere fact that § 9 is geared to appellants’ pricing policies in other States is not sufficient to invalidate the statute. As part of its regulatory scheme for the sale of liquor, New York may constitutionally insist that liquor prices to domestic wholesalers and retailers be as low as prices offered elsewhere in the country. The serious discriminatory effects of § 9 alleged by appellants on their business outside New York are largely matters of conjecture. It is by no means clear, for instance, that § 9 must inevitably produce higher prices in other States, as claimed by appellants, rather than the lower prices sought for New York. It will be time enough to assess the alleged extraterritorial effects of § 9 when a case arises that clearly presents them. “The mere fact that state action may have repercussions beyond state lines is of no judicial significance so long as the action is not within that domain which the Constitution forbids.” Osborn v. Ozlin, 310 U. S. 53, 62. Cf. Hoopeston Canning Co. v. Cullen, 318 U. S. 313; South Carolina Highway Dept. v. Barnwell Bros., 303 U. S. 177, 189; Baldwin v. G. A. F. Seelig, 294 U. S. 511, 528.

Moreover, as the Court of Appeals observed, the regulatory procedure followed by New York is comparable to that practiced by those States, 17 in number, in which liquor is sold by the State itself and not by private enterprise. Each of these monopoly States, we are told, requires distillers to warrant that the price charged the State is no higher than the price charged in other States. In at least one of these States, the distillers are required to adjust the sales price to include all rebates and other allowances made to purchasers elsewhere, and the State has taken positive precautions to insure that the contractual commitments are fulfilled. In some respects, the burden of gathering information for the warranties made to the monopoly States may be more onerous than that required for the affirmations under § 9, since the warranties generally cover prices in other States at the very time of sale to the monopoly State, whereas the affirmations filed under § 9 cover prices charged elsewhere during the preceding month.

We therefore conclude that the provisions of § 9 on their face place no unconstitutional burden on interstate commerce.

The appellants’ contention that § 9 violates the command of the Supremacy Clause needs no extended discussion. The argument is based upon a claimed inconsistency between § 9 and the federal antitrust laws, specifically the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. §§ 1-7 (1964 ed.), and § 2 of the Clayton Act, 38 Stat. 730, as amended by the Robinson-Patman Act, 49 Stat. 1526, 15 U. S. C. § 13 (1964 ed.).

In this as in other areas of coincident federal and state regulation, the “teaching of this Court’s decisions . . . enjoin [s] seeking out conflicts between state and federal regulation where none clearly exists.” Huron Cement Co. v. Detroit, 362 U. S. 440, 446. We find no such clear conflict in the present case. The bare compilation, without more, of price information on sales to wholesalers and retailers to support the affirmations filed with the State Liquor Authority would not of itself violate the Sherman Act. Maple Flooring Assn. v. United States, 268 U. S. 563, 582-586; cf. American Column Co. v. United States, 257 U. S. 377. Section 9 imposes no irresistible economic pressure on the appellants to violate the Sherman Act in order to comply with the requirements of § 9. On the contrary, § 9 appears firmly anchored to the assumption that the Sherman Act will deter any attempts by the appellants to preserve their New York price level by conspiring to raise the prices at which liquor is sold elsewhere in the country. Nothing in the Twenty-first Amendment, of course, would prevent enforcement of the Sherman Act against such a conspiracy. United States v. Frankfort Distilleries, 324 U. S. 293, 299.

Although it is possible to envision circumstances under which price discriminations proscribed by the Robinson-Patman Act might be compelled by § 9, the existence of such potential conflicts is entirely too speculative in the present posture of this ease to support the conclusion that New York is foreclosed from regulating liquor prices in the manner it has chosen. Moreover, § 7 of Chapter 531 has amended the ABC Law by granting to the State Liquor Authority ample discretion to modify the schedule requirements. We cannot presume that the Authority will not exercise that discretion to alleviate any friction that might result should the ABC Law chafe against the Robinson-Patman Act or any other federal statute.

There remain for consideration the appellants’ Fourteenth Amendment claims. Section 9, they say, violates the Due Process Clause in two respects, first because it imposes an “unreasonable, arbitrary, and capricious” burden upon them, and second because the statutory definition of “related person” is so vague as to be constitutionally intolerable. And § 9 violates the Equal Protection Clause, they say, because it arbitrarily discriminates among various segments of the liquor industry.

The first contention amounts to a claim of a deprivation of due process of law, based on the argument that § 9 is not designed to promote temperance and that it is an unwise, impractical, and oppressive law. But it is not “the province of courts to draw on their own views as to the morality, legitimacy, and usefulness of a particular business in order to decide whether a statute bears too heavily upon that business and by so doing violates due process. Under the system of government created by our Constitution, it is up to legislatures, not courts, to decide on the wisdom and utility of legislation. There was a time when the Due Process Clause was used by this Court to strike down laws which were thought unreasonable, that is, unwise or incompatible with some particular economic or social philosophy. . . . The doctrine . . . that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely . . . has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws. . . .” Ferguson v. Skrupa, 372 U. S. 726, 728-730.

Moreover, nothing in the Twenty-first Amendment or any other part of the Constitution requires that state laws regulating the liquor business be motivated exclusively by a desire to promote temperance. The announced purpose of the legislature was to eliminate “discrimination against and disadvantage of consumers” in the State. Frustrated by years of unhappy experience with a state-enforced mandatory resale price maintenance system that placed exclusive price-fixing power in the hands of the distillers, the legislature adopted § 9 as the core of the liquor price reform contemplated by Chapter 531. We cannot say that the legislature acted unconstitutionally when it determined that only by imposing the relatively drastic “no higher than the lowest price” requirement of § 9 could the grip of the liquor distillers on New York liquor prices be loosened. In a variety of cases in areas no more sensitive than that of liquor control, this Court has upheld state maximum price legislation. See Nebbia v. New York, 291 U. S. 502; Townsend v. Yeomans, 301 U. S. 441; O’Gorman & Young v. Hartford Fire Ins. Co., 282 U. S. 251; Gold v. DiCarlo, 380 U. S. 520.

The statutory definition of “related person,” which the appellants attack as unconstitutionally vague, includes any person “the exclusive, principal or substantial business of which is the sale of a brand or brands of liquor purchased from such brand owner or wholesaler designated as agent . . . .” The claim of vagueness is centered upon the term “principal or substantial.” We cannot agree that that language is so vague as to be constitutionally invalid. The Deputy Commissioner of the State Liquor Authority testified in these proceedings that where the determination of “related persons” is unclear, the appellants will have access to the Authority for a ruling to clarify the issue. As the Court said in Board of Governors v. Agnew, 329 U. S. 441, 449, “. . . we think it plain under our decisions that if substantiality is the statutory guide, the limits of administrative action are sufficiently definite or ascertainable so as to survive challenge on the grounds of unconstitutionality.” Cf. Opp Cotton Mills v. Administrator, 312 U. S. 126, 142-146; Bowles v. Willingham, 321 U. S. 503, 512-516.

Further, as the record indicates, the structure of the liquor industry is such that even the largest national distillers deal through a relatively limited number of wholesalers. Frequently, a wholesaler agrees with a distiller not to sell brands of competing distillers in the same price range, and the prices charged by these wholesalers are potentially subject to the influence of the distillers. We cannot say, therefore, that § 9 on its face imposes an unconstitutional burden on distillers or wholesalers in ascertaining the wholesalers who satisfy the “related person” criterion or in obtaining information on prices charged by such wholesalers.

We come, then, to the appellants’ argument that § 9 violates the Equal Protection Clause. That argument is based upon the claim that it was arbitrary for the legislature to except consumer sales and private label brands of liquor from the “no higher than the lowest price” requirement of § 9, and to reduce the scope of the price affirmation required with respect to sales made to wholesalers and retailers by those who are not “related persons.”

We do not find that these differentiations constitute invidious discrimination. The legislature could reasonably have believed that, once the prices on sales by distillers and “related persons” were reduced, the prices of private label brands and brands sold by non-“related persons” would follow suit. Nor was it necessary for the legislature to impose the “no higher than the lowest price” requirement on sales by retailers to consumers. The legislature might reasonably have concluded that consumer prices would adequately reflect the reductions in prices to wholesalers and retailers accomplished by § 9, even though the state fair trade statute, which permits private resale price maintenance agreements on sales to consumers, appears to have emerged unscathed by the enactment of Chapter 531. “A statute is not invalid under the Constitution because it might have gone farther than it did, or because it may not succeed in bringing about the result that it tends to produce.” Roschen v. Ward, 279 U. S. 337, 339. “[T]he reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind.” Williamson v. Lee Optical Co., 348 U. S. 483, 489.

Although the appellants’ primary attack is upon the constitutionality of § 9, they also challenge two minor provisions added by § 7 of Chapter 531 to the schedule requirements of the ABC Law. The first provision, which requires the price schedules to cover sales to wholesalers “irrespective of the place of sale or delivery,” is designed to bring wholesalers within the price-publicity requirement of the law, even though they take delivery of the liquor outside New York for distribution within the State. The second provision, which requires the price schedules on sales to both wholesalers and retailers to include “the net bottle and case price paid by the seller,” tends to promote publicity of the seller’s profit margins. There is no indication in the present record that the State Liquor Authority will require the appellants to file schedules of prices on sales unrelated to the distribution of liquor in New York. As the Court of Appeals observed with regard to these provisions, “The statute is concerned with New York practices and, if the sales in other States have no relevancy to New York enforcement, the statute permits the Liquor Authority for good cause to waive the general prohibition against sales to wholesalers in the absence of such schedules. It would be reasonable to expect that the statute would be administered consistently with its sole purpose to regulate the intrastate sale of liquor.” 16 N. Y. 2d 47, 59; 209 N. E. 2d 701, 706. We accept this construction of the statute by New York’s highest court. N. A. A. C. P. v. Button, 371 U. S. 415, 432. As so construed, these provisions serve a clear and legitimate interest of New York in the exercise of its constitutional power to regulate the sale of liquor within its borders.

For the reasons that we have stated, we find no constitutional infirmity in any of the 1964 amendments to the New York ABC Law challenged on this appeal. Although it is possible that specific future applications of Chapter 531 may engender concrete problems of constitutional dimension, it will be time enough to consider any such problems when they arise. We deal here only with the statute on its face. And we hold that, so considered, the legislation is constitutionally valid. Accordingly, the judgment of the New York Court of Appeals is

Affirmed.

APPENDIX TO OPINION OF THE COURT.

Chapter 531, 1964 Session Laws of New York.

§ 7. Section one hundred one-b of such law, as added by chapter eight hundred ninety-nine of the laws of nineteen hundred forty-two, subdivision four thereof having been amended by chapter five hundred fifty-one of the laws of nineteen hundred forty-eight, is hereby amended to read as follows:

§ 101-b. Unlawful discriminations prohibited; filing of schedules; schedule listing fund

3. (a) No brand of liquor or wine shall be sold to or purchased by a wholesaler, irrespective of the place of sale or delivery, unless a schedule, as provided by this section, is filed with the liquor authority, and is then in effect. Such schedule shall be in writing duly verified, and filed in the number of copies and form as required by the authority, and shall contain, with respect to each item, the exact brand or trade name, capacity of package, nature of contents, age and proof where stated on the label, the number of bottles contained in each case, the bottle and case price to wholesalers, the net bottle and case price paid by the seller, which prices, in each instance, shall be individual for each item and not in “combination” with any other item, the discounts for quantity, if any, and the discounts for time of payment, if any. Such brand of liquor or wine shall not be sold to wholesalers except at the price and discounts then in effect unless prior written permission of the authority is granted for good cause shown and for reasons not inconsistent with the purpose of this chapter. Such schedule shall be filed by (1) the owner of such brand, or (2) a wholesaler selling such brand and who is designated as agent for the purpose of filing such schedule if the owner of the brand is not licensed by the authority, or (3) with the approval of the authority, by a wholesaler, in the event that the owner of the brand is unable to file a schedule or designate an agent for such purpose.

(b) No brand of liquor or wine shall be sold to or purchased by a retailer unless a schedule, as provided by this section, is filed with the liquor authority, and is then in effect. Such schedule shall be in writing duly verified, and filed in the number of copies and form as required by the authority, and shall contain, with respect to each item, the exact brand or trade name, capacity of package, nature of contents, age and proof where stated on the label, the number of bottles contained in each case, the bottle and case price to retailers, the net bottle and case price paid by the seller, which prices, in each instance, shall be individual for each item and not in “combination” with any other item, the discounts for quantity, if any, and the discounts for time of payment, if any. Such brand of liquor or wine shall not be sold to retailers except at the price and discounts then in effect unless prior written permission of the authority is granted for good cause shown and for reasons not inconsistent with the purpose of this chapter. Such schedule shall be filed by each manufacturer selling such brand to retailers and by each wholesaler selling such brand to retailers.

(c) Provided however, nothing contained in this section shall require any manufacturer or wholesaler to list in any schedule to be filed pursuant to this section any item offered for sale to a retailer under a brand which is owned exclusively by one retailer and sold at retail within the state exclusively by such retailer.

§ 8. In enacting section eleven of this act, it is the firm intention of the legislature (a) that fundamental principles of price competition should prevail in the manufacture, sale and distribution of liquor in this state, (b) that consumers of alcoholic beverages in this state should not be discriminated against or disadvantaged by paying unjustifiably higher prices for brands of liquor than are paid by consumers in other states, and that price discrimination and favoritism are contrary to the best interests and welfare of the people of this state, and (c) that enactment of section eleven of this act will provide a basis for eliminating such discrimination against and disadvantage of consumers in this state. In order to forestall possible monopolistic and anti-competitive practices designed to frustrate the elimination of such discrimination and disadvantage, it is hereby further declared that the sale of liquor should be subjected to certain further restrictions, prohibitions and regulations, and the necessity for the enactment of the provisions of section nine of this act is, therefore, declared as a matter of legislative determination.

§ 9. Subdivision three of section one hundred one-b of such law, as amended by section seven of this act, is hereby amended to add eight new paragraphs, to be paragraphs (d), (e), (f), (g), (h), (i), (j) and (k), to read as follows:

(d) There shall be filed in connection with and when filed shall be deemed part of the schedule filed for a brand of liquor pursuant to paragraph (a) of this subdivision an affirmation duly verified by the owner of such brand of liquor, or by the wholesaler designated as agent for the purpose of filing such schedule if the owner of the brand of liquor is not licensed by the authority, that the bottle and case price of liquor to wholesalers set forth in such schedule is no higher than the lowest price at which such item of liquor was sold by such brand owner or such wholesaler designated as agent, or any related person, to any wholesaler anywhere in any other state of the United States or in the District of Columbia, or to any state (or state agency) which owns and operates retail liquor stores, at any time during the calendar month immediately preceding the month in which such schedule is filed. As used in this paragraph (d), the term “related person” shall mean any person (1) in the business of which such brand owner or wholesaler designated as agent has an interest, direct or indirect, by stock or other security ownership, as lender or lienor, or by interlocking directors or officers, or (2) the exclusive, principal or substantial business of which is the sale of a brand or brands of liquor purchased from such brand owner or wholesaler designated as agent, or (3) which has an exclusive franchise or contract to sell such brand or brands.

(e) There shall be filed in connection with and when filed shall be deemed part of any other schedule filed for a brand of liquor pursuant to paragraph (a) of this subdivision an affirmation duly verified by the person filing such schedule that the bottle and case price of liquor to wholesalers set forth in such schedule is no higher than the lowest price at which such item of liquor was sold by such person to any wholesaler anywhere in any other state of the United States or in the District of Columbia, or to any state (or state agency), which owns and operates retail liquor stores, at any time during the calendar month immediately preceding the month in which such schedule is filed.

(f) There shall be filed in connection with and when filed shall be deemed part of any schedule filed for a brand of liquor pursuant to paragraph (b) of this subdivision by the owner of such brand of liquor, or by the wholesaler designated as agent for the purpose of filing such schedule if the owner of the brand of liquor is not licensed by the authority, or by a related person, an affirmation duly verified by such brand owner or such wholesaler designated as agent that the bottle and case price of liquor to retailers set forth in such schedule is no higher than the lowest price at which such item of liquor was sold by such brand owner of [sic] such wholesaler designated as agent, or any related person, to any retailer anywhere in any other state of the United States or in the District of Columbia, other than to any state (or state agency) which owns and operates retail liquor stores, at any time during the calendar month immediately preceding the month in which such schedule is filed. As used in this paragraph (f), the term “related person” shall mean any person (1) in the business of which such brand owner or wholesaler designated as agent has an interest, direct or indirect, by stock or other security ownership, as lender or lienor, or by interlocking directors or officers, or (2) the exclusive, principal or substantial business of which is the sale of a brand or brands of liquor purchased from such brand owner or wholesaler designated as agent, or (3) who has an exclusive franchise or contract to sell such brand or brands.

(g) There shall be filed in connection with and when filed shall be deemed part of any other schedule filed for a brand of liquor pursuant to paragraph (b) of this subdivision an affirmation duly verified by the person filing such schedule that the bottle and case price of liquor to retailers set forth in such schedule is no higher than the lowest price at which such item of liquor was sold by such person to any retailer anywhere in any other state of the United States or in the District of Columbia, other than to any state (or state agency) which owns and operates retail liquor stores, at any time during the calendar month preceding the month in which such schedule is filed.

(h) In the event an affirmation with respect to any item of liquor is not filed within the time provided by this section, any schedule for which such affirmation is required shall be deemed invalid with respect to such item of liquor, and no such item may be sold to or purchased by any wholesaler or retailer during the period covered by any such schedule.

(i) In determining the lowest price for which any item of liquor was sold in any other state or in the District of Columbia, or to any state (or state agency) which owns and operates retail liquor stores, appropriate reductions shall be made to reflect all discounts in excess of those to be in effect under such schedule, and all rebates, free goods, allowances and other inducements of any kind whatsoever offered or given to any such wholesaler, state (or state agency) or retailer, as the case may be, purchasing such item in such other state or in the District of Columbia; provided that nothing contained in paragraphs (d), (e), (f) and (g) of this subdivision shall prevent differentials in price which make only due allowance for differences in state taxes and fees, and in the actual cost of delivery. As used in this paragraph, the term “state taxes or fees” shall mean the excise taxes imposed or the fees required by any state or the District of Columbia upon or based upon the gallon of liquor, and the term “gallon” shall mean one hundred twenty-eight fluid ounces.

(j) Notwithstanding and in lieu of any other penalty provided in any other provisions of this chapter, any person who makes a false statement in any affirmation made and filed pursuant to paragraph (d), (e), (f) or (g) of this subdivision shall be guilty of a misdemeanor, and upon conviction thereof shall be punishable by a fine of not more than ten thousand dollars or by imprisonment in a county jail or penitentiary for a term of not more than six months or by both such fine and imprisonment. Every affirmation made and filed pursuant to paragraph (d), (e), (f) or (g) of this subdivision shall be deemed to have been made in every county in this state in which the brand of liquor is offered for sale under the terms of said schedule. The attorney general or any district attorney may prosecute any person charged with the commission of a violation of this paragraph. In any such prosecution by the attorney general, he may appear in person or by his deputy or assistant before any court or any grand jury and exercise all the powers and perform all the duties in respect of any such proceeding which the district attorney would otherwise be authorized or required to exercise or perform, and in such prosecution the district attorney shall only exercise such powers and perform such duties as are required of him by the attorney general or his deputy or assistant so attending.

(k) Upon final judgment of conviction of any person after appeal, or in the event no appeal is taken, upon the expiration of the time during which an appeal could have been taken, the liquor authority may refuse to accept for any period of months not exceeding three calendar months any affirmation required to be filed by such person.

       The appellants also challenged two minor provisions of § 7 of Chapter 531, 1964 Session Laws of New York. See pp. 51-52, infra. The relevant provisions of §§ 7, 8 and 9 of Chapter 531 are set out in the Appendix to this opinion.

       45 Misc. 2d 956, 258 N. Y. S. 2d 442.

       23 App. Div. 2d 933, 259 N. Y. S. 2d 644.

       16 N. Y. 2d 47, 209 N. E. 2d 701.

       382 U. S. 924.

       Laws 1942, c. 899, § 1, Alcoholic Beverage Control Law, §§ 101-b-3 (a)-(d) (1946 ed.).

       Laws 1950, c. 689, § 1, Alcoholic Beverage Control Law, § 101-c (1964 Supp.).

       See New York State Legislative Annual 401-408, 484-489, 498-500 (1964); Breuer, Moreland Act Investigations in New York: 1907-65, pp. 131-169 (1965). The Commission’s Study Paper Number 5 (“Resale Price Maintenance in the Liquor Industry”) and Report and Recommendations No. 3 (“Mandatory Resale Price Maintenance”) are part of the record in this case.

       Based upon the comparative price data it assembled, including examples of wholesale liquor prices in New York higher than retail prices elsewhere, the Commission concluded that, because of the mandatory resale price maintenance provision, New Yorkers were subsidizing the liquor industry by $150,000,000 a year.

       The Commission made various other recommendations, including relaxation of certain restrictions on package store licenses and elimination of some of the conditions imposed on establishments serving liquor by the drink.

       The mandatory resale price maintenance provision, § 101-c, was repealed by § 11 of Chapter 531.

       Sellers seeking to take advantage of the milder affirmations required by paragraphs (e) and (g) must file a representation that they are not “related persons.” See Alcoholic Beverage Control Law, Appendix, Rule 16 of the State Liquor Authority, §66.7 (e) (1965 Supp.), 9 NYCRR 65.7 (e). The schedule requirements of § 101-b do not apply to sales of private label brands of liquor. Alcoholic Beverage Control Law, § 101-b-3 (c).

       Cf. United States v. Frankfort Distilleries, 324 U. S. 293, 299, where we stated that the Twenty-first Amendment “has not given the states plenary and exclusive power to regulate the conduct of persons doing an interstate liquor business outside their boundaries.” See also Note, The Twenty-first Amendment Versus the Interstate Commerce Clause, 55 Yale L. J. 815 (1946).

       The executive vice-president of one of the appellants testified that “We and other distillers have freely entered into contracts with these monopoly states in which we warrant that the f. o. b. prices at which our brands are offered to those states are no higher than the lowest price at which we sell in other states.”
      The Deputy Commissioner of the State Liquor Authority testified that “[I]n a number of other States, e. g., in the State of Pennsylvania, some of these same plaintiffs have been warranting for some time past that the price quoted to the Pennsylvania Liquor Control Board is ‘the lowest current price quoted to any other customer/ or ‘to any purchaser, dealer, agent or agency of any nature or kind anywhere in the United States of America.’ ” The same witness later added that “[A]s part and parcel of the offerings of their products in, for example, the State of Pennsylvania, they warrant that ‘if and when special cash or commodity allowances, post-offs or discounts are offered to purchasers in any other State or the District of Columbia, the same’ shall also be offered the Pennsylvania Liquor Control Board.”
      The Chairman of the Commission testified at a public hearing before a joint legislative committee that “We have, for example, the State of Pennsylvania which is the largest purchaser of liquor in the world. I think they purchase almost $400,000,000 worth of liquor a year — one customer. They swing a very big bit of leverage, and you cannot be convinced that that. Pennsylvania customer does not insist on the lowest price that the distiller offers anywhere in the country. . . . [T]he State of Pennsylvania has a contract which permits them to send accountants into any supplier’s office— and they do. They send corps of accountants into suppliers’ offices to determine whether or not they’re getting the best price. And in fact, if they were not, they would have a violation of contract . . . .”
      In the monopoly States, of course, no sales to retailers by private wholesalers take place. Thus, brand owners dealing with those States are not placed in the position of vouching for sales to retailers by wholesalers occupying a “related person” status.

       Cf. Wisconsin v. Texaco, 14 Wis. 2d 625, 630-631, 111 N. W. 2d 918, 921; Safeway Stores v. Oklahoma Retail Grocers Assn., 360 U. S. 334, 342, n. 7.

       Sections 101-b-3 (a) and (b) of the ABC Law, as amended by §7 of Chapter 531, provide: “. . . Such brand of liquor . . . shall not be sold to wholesalers [“retailers” in § 101-b-3 (b) ] except at the price and discounts then in effect unless prior written permission of the authority is granted for good cause shown and for reasons not inconsistent with the purpose of this chapter. . . .”

       See State Board of Equalization v. Young’s Market Co., 299 U. S. 59; Mahoney v. Joseph Triner Corp., 304 U. S. 401; Indianapolis Brewing Co. v. Liquor Comm’n, 305 U. S. 391; Joseph S. Finch & Co. v. McKittrick, 305 U. S. 395; Ziffrin, Inc. v. Reeves, 308 U. S. 132; California v. Washington, 358 U. S. 64.

       The intent of the legislature in enacting § 9 is expressed in § 8 of Chapter 531:

        “. . . In order to forestall possible monopolistic and anti-competitive practices designed to frustrate the elimination of . . . discrimination and disadvantage [to consumers], it is hereby further declared that the sale of liquor should be subjected to certain further restrictions, prohibitions and regulations, and the necessity for the enactment of the provisions of section nine of this act is, therefore, declared as a matter of legislative determination.”
      The preceding portion of § 8 states the intent of the legislature in enacting § 11 of Chapter 531, which repealed § 101-c, the mandatory resale price maintenance provision. See Appendix, infra, p. 54.

       We also find without merit the appellants’ objection that the price computation provision, § 101-b-3 (i), sweeps too broadly. That provision was intended to circumvent the established industry practice of interpreting “price” as “invoice price” rather than the amount actually realized by the seller on the transaction. There is no indication in the record that § 101-b-3 (i) as applied will require the reflection in New York of every idiosyncratic price fluctuation elsewhere in the United States that happens to produce a “lowest price.”

       Section 101-b-4 of the ABC Law authorizes the State Liquor Authority to promulgate rules to carry out the purpose of § 101-b.

       The vice-president of Joseph E. Seagram & Sons, Inc., one of the largest national distillers, testified that “Of the 330 wholesalers selling Seagram throughout the country, sixteen do 75 per cent or more of their business in the sale of our brands. Sixty-one do approximately 60 to 75 per cent in the sale of these brands; seventy-three do 40 to 60 per cent; seventy-nine, 20 to 40 per cent; sixty-four, 5 to 20 per cent; thirty-seven, 1 to 5 per cent."

       See Borregard & Glusker, The Distilled Spirits Industry: A Marketing Survey 65-104, 133-163 (Yale Law School 1950); Oxenfeldt, “Whisky Prices,” Industrial Pricing and Market Practices 445, 477, 483-486 (1951).

       The New York fair trade statute is the Feld-Crawford Act, Laws 1940, c. 195, § 3, as amended, General Business Law, §§ 369-a-e. See National Distillers Corp. v. Seyopp Corp., 17 N. Y. 2d 12, 214 N. E. 2d 361; National Distillers Corp. v. R. H. Macy & Co., 23 App. Div. 2d 51, 258 N. Y. S. 2d 298; Fleischmann Distilling Corp. v. R. H. Macy & Co., 24 App. Div. 2d 977, 265 N. Y. S. 2d 384; Victor Fischel & Co. v. R. H. Macy & Co., N. Y. Sup. Ct., 154 N. Y. L. J. No. 95, p. 17 (Nov. 17, 1965).

       Where the manufacturer is also the seller, this provision is inapplicable. See Alcoholic Beverage Control Law, Appendix, Rule 16 of the State Liquor Authority, §65.6 (b)(3) (1965 Supp.), 9 NYCRR 65.6 (b)(3).


text:
    COLLIER v. UNITED STATES.
    No. 695.
    Argued March 24, 1966.
    Decided April 19, 1966.

      Dean E. Denlinger, by appointment of the Court, 382 U. S. 936, argued the cause and filed a brief for petitioner.

      Paul Bender argued the cause for the United States, pro hac vice, by special leave of Court. On the brief were Solicitor General Marshall, Assistant Attorney General Vinson, Beatrice Rosenberg and Julia P. Cooper.

   Per Curiam.

On March 24, 1965, a jury in a federal district court found petitioner guilty of violating the Mann Act, 18 U. S. C. § 2421 (1964 ed.), and a formal judgment was entered against him on the same day. Nine days later, on April 2, 1965, a new trial motion was filed by petitioner’s counsel alleging various errors at trial. Since Fed. Rule Crim. Proc. 33 expressly requires that a new trial motion not based on newly discovered evidence be filed within five days of the verdict, petitioner’s motion was untimely and the District Court denied it on April 5, 1965. On April 12, 1965, seven days after the denial of the motion and 19 days after the judgment, petitioner through counsel filed a notice of appeal from his conviction. The Court of Appeals for the Sixth Circuit dismissed the appeal as untimely, a ruling in accord with the views of several other circuits but in conflict with those of the Tenth Circuit. Compare, e. g., United States v. Bertone, 249 F. 2d 156 (C. A. 3d Cir.), with Smith v. United States, 273 F. 2d 462 (C. A. 10th Cir.). Treating petitioner’s petition for mandamus as one for a writ of certiorari, we granted certiorari, 382 U. S. 890, to consider the timeliness question, left open in Lott v. United States, 367 U. S. 421, 425. We reverse the Court of Appeals and remand the case to allow petitioner’s appeal to be heard.

Federal Rule of Criminal Procedure 37 (a)(2), entitled “Time for Taking Appeal,” provides in relevant part that “[a]n appeal by a defendant may be taken within 10 days after entry of the judgment or order appealed from, but if a motion for a new trial or in arrest of judgment has been made within the 10-day period an appeal from a judgment of conviction may be taken within 10 days after entry of the order denying the motion.” Plainly petitioner’s appeal was timely if this Rule is literally read since the appeal was filed within 10 days after denial of a new trial motion itself filed within 10 days of the judgment of conviction. To the contrary, the Government argues that a new trial motion, not based on newly discovered evidence, filed more than five days after the verdict and so destined to be rejected as untimely under R.ule 33 should not serve to give defendant an extension of time to appeal since there is no possibility the appeal will be avoided by a grant of the motion. Further support is found by the Government in a number of courts of appeals’ decisions adopting this view, in the history of Rule 37 (a)(2), and in a very recent amendment to that Rule which plainly adopts the Government’s basic approach for the future.

We believe competing interests outweigh the Government’s arguments. The literal language of Rule 37 (a) (2) sustains petitioner and even a perceptive reading of Rules 33 and 37 (a)(2) together would not dispel all doubt. A criminal appeal is at stake and under Fed. Rule Crim. Proc. 45 (b) the period for taking it may not be extended, while the rare and relatively brief delay in appeal allowed by petitioner’s construction causes very little injury to the Government. In these circumstances a reading that departs from the literal terms of Rule 37 (a)(2) by constricting the opportunity to appeal seems to us inappropriate. Because of our disposition we need not consider a suggestion by the Government, apparently not made to or passed on by the Court of Appeals in this case but first tentatively raised after the grant of certiorari and only later pressed upon us in oral argument, that on the present facts a motion for bail bond filed by petitioner nine days after his conviction may do unintended service as a notice of appeal.

Reversed and remanded.

Mr. Justice Black concurs in the Court’s judgment for the reasons stated in the opinion of the Court of Appeals for the Fifth Circuit in O’Neal v. United States, 272 F. 2d 412.

      The amendment, approved by the Court on February 28, 1966, and absent disapproval by Congress effective on July 1, 1966, pertinently provides: “If a timely motion in arrest of judgment or for a new trial on any ground other than newly discovered evidence has been made, an appeal from a judgment of conviction may be taken within 10 days after the entry of the order denying the motion.” (Emphasis added.) Thus the effect of the amendment is to embrace prospectively the Government’s view of the interrelationship between Rules 33 and 37 (a)(2). A contemporaneous amendment to Rule 33 would extend the time for filing a new trial motion from five to seven days.


author: Mr. Justice Harlan

text:
    WALLIS v. PAN AMERICAN PETROLEUM CORP. et al.
    No. 341.
    Argued February 23-24, 1966.
    Decided April 25, 1966.

      C. Ellis Henican argued the cause for petitioner. With him on the briefs were Murray F. Cleveland and H. M. Holder.

      Lloyd J. Cobb argued the cause for respondent Pan American Petroleum Corp. With him on the brief were Morris Wright and Percy Sandel. E. L. Brunini argued the cause and filed a brief for respondent McKenna.

      Solicitor General Marshall, Assistant Attorney General Weisl, Richard A. Posner and Roger P. Marquis filed a brief for the United States, as amicus curiae.

   Mr. Justice Harlan

delivered the opinion of the Court.

This case presents a question concerning “federal common law" best explained after a summary of the facts and the legal proceedings involved.

At stake in the litigation are rights in several tracts, aggregating 827 acres, of oil-rich “mud lumps” or islands owned by the United States and located in a mouth of the Mississippi River near Burrwood, Louisiana. In 1954 petitioner, Floyd Wallis, filed with the Secretary of the Interior applications for a lease to exploit oil and gas deposits in the tracts. Because the tracts were deemed by Wallis to be “acquired lands” of the United States rather than “public domain lands,” these applications were filed under the Mineral Leasing Act for Acquired Lands, which governs the former, instead of the Mineral Leasing Act of 1920, which controls the latter. Subsequently, Wallis entered into a written joint venture agreement with respondent Patrick McKenna giving McKenna a one-third interest in the pending applications and any lease issued under those applications. Then Wallis, who had exclusive management of the property under his agreement with McKenna, sold respondent Pan American Petroleum Corporation an option to acquire any lease Wallis might obtain under the applications then on file with the Secretary.

In 1956, fearing that the tracts might prove to be public domain land, Wallis filed new applications for the same tracts under the Mineral Leasing Act of 1920. Thereafter the tracts were ruled to be public domain land, the conflicting applications of one or more competitors were rejected, and in 1958 the Secretary issued a lease of the tracts to Wallis under the 1920 Act. See Morgan v. Udall, 306 F. 2d 799. After the lease was issued to Wallis, McKenna brought a diversity action against him in Federal District Court in Louisiana seeking to be declared a one-third owner of the lease by virtue of the original joint venture agreement. Pan American also brought a diversity action in the same court to oblige Wallis to perform the option agreement by transferring the lease to Pan American.

The actions were consolidated, and following a nonjury trial the District Court held that neither McKenna nor Pan American was entitled to any interest in the disputed lease. 200 F. Supp. 468. The trial judge ruled that Louisiana law governed the rights of the parties and required a written agreement to create or transfer any interest in a mineral lease, thus excluding oral agreements as a basis for relief in this case. The judge then decided that the written agreements available to McKenna and Pan American contemplated they would share only in leases obtained by Wallis under the Mineral Leasing Act for Acquired Lands and not in any leases granted him under any other law. The court’s judgment in favor of Wallis on the question of lease ownership reserved to McKenna and Pan American whatever rights they might have to damages, restitution, or like remedies based on oral agreements or other conduct.

Over a dissent, the Court of Appéals for the Fifth Circuit reversed, filing an initial opinion, 344 F. 2d 432, and after petitions for rehearing, a further opinion adhering to its earlier result, 344 F. 2d 439. The court decided only that the trial judge had erred in applying Louisiana law to the controversy and it remanded for a new trial in which “applicable principles of federal law” would control the issues. 344 F. 2d, at 437, 442. In its latter opinion the Court of Appeals reasoned that the Mineral Leasing Act of 1920 imposed pervasive federal regulation and that the Act’s policies and the federal interest would be impaired if Louisiana law were to thwart the transfer of these federally granted leases. The opinion acknowledged an apparent conflict with the Tenth Circuit’s decision in Blackner v. McDermott, 176 F. 2d 498. We granted certiorari and invited the views of the United States, 382 U. S. 810, which filed a brief amicus curiae. We now reverse the Court of Appeals.

The question before us is whether in general federal or state law should govern the dealings of private parties in an oil and gas lease validly issued under the Mineral Leasing Act of 1920. Several related matters in the case should be distinguished and laid aside at the outset.

First, we are not concerned with whether under Erie R. Co. v. Tompkins, 304 U. S. 64, the Federal District Court might have diverged from state practice on the relevant issues of statute of frauds, parol evidence, estoppel, trust remedies, and so forth, on the ground that they were no more than “procedural” rules or fell under some similar rubric. See generally Hanna v. Plumer, 380 U. S. 460. Respondents do not argue that these rules are merely “housekeeping” matters on which state and federal courts may ordinarily differ but rather that the federal interest in government-granted mineral leases requires supplanting Louisiana law, in which event the federal rule would normally govern any such case whether in state or federal court. See Dice v. Akron, C. & Y. R. Co., 342 U. S. 359. Second, apart from a pre-empting federal interest, we do not consider suggestions that some law other than Louisiana’s should govern because the land at issue may be outside the legal boundaries of the State and transactions between the parties may have occurred elsewhere. The District Court sitting in Louisiana obviously assumed that the State as a choice of law matter would apply its own law to the questions. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U. S. 487. If any challenge was offered on this point below, it has not yet been passed on by the Court of Appeals. Third, whether on the merits the trial court correctly interpreted and implemented Louisiana law is not before us; presumably that issue was presented to the Court of Appeals but not resolved because of its decision that federal law should apply.

We focus now on the central question in the case. In deciding whether rules of federal common law should be fashioned, normally the guiding principle is that a significant conflict between some federal policy or interest and the use of state law in the premises must first be specifically shown. It is by no means enough that, as we may assume, Congress could under the Constitution readily enact a complete code of law governing transactions in federal mineral leases among private parties. Whether latent federal power should be exercised to displace state law is primarily a decision for Congress. Even where there is related federal legislation in an area, as is true in this instance, it must be remembered that “Congress acts . . . against the background of the total corpus juris of the states . . . .” Hart & Wechsler, The Federal Courts and the Federal System 435 (1953). Because we find no significant threat to any identifiable federal policy or interest, we do not press on to consider other questions relevant to invoking federal common law, such as the strength of the state interest in having its own rules govern, cf. United States v. Yazell, 382 U. S. 341, 351-353, the feasibility of creating a judicial substitute, cf. U. A. W. v. Hoosier Cardinal Corp., 383 U. S. 696, 701, and other similar factors.

If there is a federal statute dealing with the general subject, it is a prime repository of federal policy and a starting point for federal common law. See Deitrick v. Greaney, 309 U. S. 190; Reitmeister v. Reitmeister, 162 F. 2d 691. We find nothing in the Mineral Leasing Act of 1920 expressing policies inconsistent with state law in the area that concerns us here. In providing for development of public domain lands containing minerals, the Act comprehensively regulates various aspects of the process. For example, it governs issuance of leases among competing applicants, e. g., § 17 (b), (c), 30 U. S. C. § 226 (b), (c); it controls in some measure the actual use of the leased tract, to promote goals such as conservation and safety, e. g., § 30, 30 U. S. C. § 187; and it deals with rent and royalty payments to be made to the Government, e. g., § 17 (d), 30 U. S. C. §226 (d). New provisions lend themselves at all to the creation of a federal law of the rights inter se of private parties dealing in the leases.

Perhaps most prominent among those that are relevant is § 30a, 30 U. S. C. § 187a, which provides that oil and gas leases shall be assignable. The Court of Appeals’ opinion relied on this provision, together with reasons why assignment of leases may promote federal policy, in justifying the use of federal rather than state law. However fitting this approach may be where a State interposes unreasonable conditions on assignability, it can have no force in this instance because Louisiana concededly provides a quite feasible route for transferring any mineral lease or contracting to do so, namely, by written instrument. See 200 F. Supp., at 471 and n. 13. Section 27 (d)(2), 30 U. S. C. § 184 (d)(2), also bears directly on the rights of the parties between themselves by rendering unenforcible any option not filed with the Secretary and any option running for more than three years without prior approval of the Secretary; however, this section enacts a pair of narrow, self-sufficient statutory defenses, which is no reason for creating at large a federal common law of federal mineral lease contracts among private interests.

Nor is respondents’ position aided by the provisions fixing qualifications for lessees to the extent of curtailing alien ownership and limiting any lessee or option holder to a maximum number of acres. The Secretary, who must approve all assignments before the lease obligations or record titles are shifted finally, is entirely free to disapprove assignees however valid their assignments may otherwise be. Finally, it is said that because the leases are issued by the United States and concern federal lands, there is a federal interest in having private disputes over them justly resolved. Apart from the highly abstract nature of this interest, there has been no showing that state law is not adequate to achieve it.

A concluding word must be said about precedents in this Court, which have been copiously cited in this litigation. The Court of Appeals in its initial opinion and at least one of the respondents in his brief have sought support in the general principle, repeated in a number of our cases, that the transfer of property by the United States to a private party is governed by federal law and only subsequent transfers among private parties are subject to state law. E. g., Wilcox v. Jackson, 13 Pet. 498, 517; Buchser v. Buchser, 231 U. S. 157. Notwithstanding the unchallenged grant of the lease to Wallis, it is apparently argued that this conveyed title subject to outstanding equities in favor of respondents and that federal law retains its initial hold on the lease until existing equities are resolved. The important case cited by respondents and the Court of Appeals for this approach, which would presumably confine federal law to governing equitable obligations of the lessee arising prior to his receipt of the lease, is Irvine v. Marshall, 20 How. 558. In that case an agent who had purchased land in his own name on behalf of two principals refused to convey one of the principals his interest; although local law aimed to discourage undisclosed purchases by proxy by refusing to enforce such equitable claims, this Court held that fed-, eral law displaced local law and ordered that a trust be recognized.

We take the decision in Irvine to rest on its most precise explanation: that enforcement of the equitable claim was required because the local rule discouraged purchasing through agents and so threatened to hamper the Federal Government in selling its land. 20 How., at 562. While this appraisal of the interests may be debatable, the use of federal law beyond the stage of the initial grant was explained by a specific federal interest found to conflict with local law. That no conflict exists in the present case has already been demonstrated. Other cases cited to us of federal equity courts resolving private disputes over government-granted property seem quite distinguishable, for example, because there was no asserted conflict with local law, Massie v. Watts, 6 Cranch 148, or because a government grant itself was flawed in some manner, see Widdicombe v. Childers, 124 U. S. 400.

Having concluded that federal law should not govern the present controversy, we vacate the judgment of the Court of Appeals and remand the case to that court so that it may consider any other contentions respondents may have urged, including their claim that they should prevail under Louisiana law.

Vacated and remanded.

Mr. Justice Black, substantially agreeing with the majority opinions of the Court of Appeals, would affirm its judgment.

       Louisiana is said to have challenged the title of the United States in another suit, see McKenna v. Wallis, 200 F. Supp. 468, 470, n. 2, but in this case the parties accept the premise of federal ownership.

       The Mineral Leasing Act for Acquired Lands is 61 Stat. 913, 30 U. S. C. §§351-359 (1964 ed.); the Mineral Leasing Act of 1920 is 41 Stat. 437, as amended, 30 U. S. C. § 181 et seq. (1964 ed.). While the precise distinction is of no concern here, in general acquired lands are those granted or sold to the United States by a State or citizen and public domain lands were usually never in state or private ownership.

       It appears that applications filed under the wrong Act are treated as ineffective, 200 F. Supp., at 471 and n. 10; see 43 CFK, § 3212.1 (b) (1965), but that filing separate applications under each Act for the same land is allowed.

       See also other arguably conflicting decisions in the Fifth, Ninth, and Tenth Circuits collected in 40 Tulane L. Rev. 195, 199, nn. 18-20.

       How possible federal rules would differ from those used by Louisiana has not been specified precisely. The Court of Appeals intimated that the devices of resulting and constructive trusts, said not to be recognized in Louisiana, might be available under federal law and useful to respondents. It may be thought that federal law would not embody a statute of frauds so oral understandings could be proved. In this instance, we believe the question of applicability of state versus federal law can be decided without further refinement of the issue.

       Other provisions that have something to do with transfer of lease rights are ones providing for surrender of leases to the Secretary, §30, 30 U. S. C. §187; for a time period in which persons may dispose of leases illegally held but involuntarily acquired, § 27 (g), 30 U. S. C. § 184 (g); and for protecting the rights of bona fide purchasers if the Secretary seeks to cancel a lease for violations of the Act, §27 (h), 30 U. S. C. § 184 (h). Nowhere is it suggested how use of Louisiana law on the questions before us might interfere with policies behind these sections, whose provisions basically relate to the rights of private persons vis-á-vis the Secretary.

       §§ 1, 27 (d), 30 U. S. C. §§ 181, 184 (d). Conceivably, the rights of private parties among themselves might be relevant data in deciding whether these sections were violated, e. g., whether an alien “controlled” a lease within the meaning of the statute; since the relevance would itself be decided by federal law, the federal interest is secure.

       Section 30a, 30 U. S. C. § 187a, requires approval unless the assignee is not qualified or fails to post the required bond. Where there is a private dispute as to the validity or effect of an assignment, the Secretary does not decide the question and he will not approve the assignment or take other action until the parties settle their dispute in court. See McCulloch Oil Corp. of California, Int. Dept. Decision No. A-30208 (Nov. 25, 1964).