author: Mr. Justice Black Mr. Justice White,

text:
    TOUSSIE v. UNITED STATES
    No. 441.
    Argued January 14, 1970
    Decided March 2, 1970

      Murray I. Gurfein argued the cause for petitioner. With him on the briefs was Jacob W. Heller.

      Francis X. Beytagh, Jr., argued the cause for the United States. With him on the brief were Solicitor General Griswold, Assistant Attorney General Wilson, Jerome M. Feit, and Edward Fenig.

   Mr. Justice Black

delivered the opinion of the Court.

Petitioner Robert Toussie was convicted, after a jury-trial, of failing to register for the draft. His conviction was affirmed by the Court of Appeals, 410 F. 2d 1156 (C. A. 2d Cir.), and we granted certiorari, 396 U. S. 875 (1969). For the reasons hereafter set forth we conclude that this prosecution was barred by the statute of limitations and therefore reverse the conviction.

Section 3 of the Universal Military Training and Service Act, 65 Stat. 76, provides that:

“Except as otherwise provided in this title, it shall be the duty of every male citizen . . . who, on the day or days fixed for the first or any subsequent registration, is between the ages of eighteen and twenty-six, to present himself for and submit to registration at such time or times and place or places, and in such manner, as shall be determined by proclamation of the President and by rules and regulations prescribed hereunder.”

The applicable presidential proclamation provides that “[p]ersons who were born on or after September 19, 1930, shall be registered on the day they attain the eighteenth anniversary of the day of their birth, or within five days thereafter.” Since Toussie, an American citizen, was born on June 23, 1941, he was required to register sometime between June 23 and June 28, 1959. He did not do so during that period or at any time thereafter. On May 3, 1967, he was indicted for failing to register and that indictment led to the conviction under review.

Before trial Toussie moved to dismiss the indictment, arguing that prosecution was barred by the statute of limitations which provides that “[ejxcept as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found . . . within five years next after such offense shall have been committed.” 18 U. S. C. § 3282. Since there is no express provision to the contrary in the Draft Act, Toussie argued that his crime was complete in 1959, and it could not be the subject of a prosecution based on an indictment returned in 1967— eight years thereafter. The Government agreed that the crime was complete in 1959, but argued that it continued to be committed each day that Toussie did not register. The District Court held that the Act imposes a continuing duty to register which lasts until age 26 and that prosecution for failing to perform that duty before the man becomes 26 is timely if the indictment is returned before the defendant becomes 31 years old— in this case any time prior to June 23, 1972. 280 F. Supp. 473, 474 (D. C. E. D. N. Y. 1967). The Court of Appeals agreed. 410 F. 2d, at 1157-1158. If the offense is a continuing one the prosecution was timely, but, if not, the District Court erred in not dismissing the indictment.

In deciding when the statute of limitations begins to run in a given case several considerations guide our decision. The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past. Such a time limit may also have the salutary effect of encouraging law enforcement officials promptly to investigate suspected criminal activity. For these reasons and others, we have stated before “the principle that criminal limitations statutes are 'to be liberally interpreted in favor of repose,' United States v. Scharton, 285 U. S. 518, 522 (1932).” United States v. Habig, 390 U. S. 222, 227 (1968). We have also said that “[s]tatutes of limitations normally begin to run when the crime is complete.” Pendergast v. United States, 317 U. S. 412, 418 (1943); see United States v. Irvine, 98 U. S. 450, 452 (1879). And Congress has declared a policy that the statute of limitations should not be extended “[ejxcept as otherwise expressly provided by law.” 18 U. S. C. § 3282. These principles indicate that the doctrine of continuing offenses should be applied in only limited circumstances since, as the Court of Appeals correctly observed in this case, “[tjhe tension between the purpose of a statute of limitations and the continuing offense doctrine is apparent; the latter, for all practical purposes, extends the statute beyond its stated term.” 410 F. 2d, at 1158. These considerations do not mean that a particular offense should never be construed as a continuing one. They do, however, require that such a result should not be reached unless the explicit language of the substantive criminal statute compels such a conclusion, or the nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing one.

The statute in this case provides that all young men, with certain exceptions, between the ages of 18 and 26 shall register “at such time or times and place or places” as the President may prescribe. The Government refers to a regulation promulgated under the Act which provides that “[t]he duty of every person subject to registration . . . shall continue at all times, and if for any reason any such person is not registered on the day or one of the days fixed for his registration, he shall immediately present himself for and submit to registration . . . 32 CFR § 1611.7 (c). It is urged that this regulation only makes explicit what Congress implicitly said in the Act itself, that is that registration is a duty that continues until age 26 and failure to register before then is a criminal offense that can be punished as late as five years after the 26th birthday.

The statute admittedly might be construed as the Government urges, but in light of the history of the draft laws and the principle that continuing offenses are not to be too readily found, we do not feel this particular Act incorporates such a doctrine. The draft law of 1917 provided in § 5 that certain persons were subject to registration and that “upon proclamation by the President . . . stating the time and place of such registration it shall be the duty of all [such] persons ... to present themselves for and submit to registration.” 40 Stat. 80. Pursuant to that authority the President proclaimed June 5, 1917, as the first registration day, and on that day approximately 10,000,000 young men were registered. There were no more general draft registrations until August 24, 1918, when the President required all those men who had become subject to registration since June 5, 1917, to come in and register. Later that year Congress amended the statute, expanded the age group subject to registration, and provided that “upon proclamation by the President . . , stating the time or times and place or places of . . . registration, it shall be the duty of all persons of the designated ages ... to present themselves for and submit to registration . . . .” 40 Stat. 955-956. Although this provision seemingly would have authorized registrations on different days, the President again issued a proclamation designating a single day, September 12, 1918, as registration day for all those so subject. That registration was the last under the World War I draft. It is thus clear that throughout the administration of the first draft law, registration was thought of as a single, instantaneous act to be performed at a given time, and failure to register at that time was a completed criminal offense.

As events developed prior to what became World War II, Congress again decided to draft young men for service in the Armed Forces. In the Selective Training and Service Act of 1940 it was provided that men subject to registration were to register “at such time or times and place or places, and in such manner and in such age group or groups, as shall be determined by rules and regulations prescribed hereunder.” 54 Stat. 885. While this language would again have authorized registration on different days for different men, the first proclamation under the new Act set a uniform date, October 16, 1940, for the registration of all men. It was not until two years later that the President first issued a proclamation setting forth different dates for the registration of different groups of men, and in that same proclamation the President established the basic registration procedure of the present system, that all young men shall register on their 18th birthday.

After the 1940 Act expired on March 31, 1947, Congress again decided to register men for the draft and declared that men between the ages of 18 and 26 would be subject to registration. Selective Service Act of 1948, 62 Stat. 604. Since the authority to register under the 1940 Act had expired, it was necessary to provide for the initial registration of the entire group of men between 18 and 26. In language identical to that found in the statute involved in this case, Congress again left the administrative details to the President and authorized registration “at such time or times and place or places” as he might designate. We do not think the imposition of the duty to register on men between 18 and 26 and the provision for registration at different times was intended to indicate that the statute of limitations did not begin to run when the crime was first complete. Since at the time of the initial registration under the 1948 Act there were men of various ages who had to be registered, the Act was phrased generally in terms of a duty imposed on the entire group. Under this authority the President in fact required registration of all men between 18 and 26 during the month of September 1948, Persons of different ages were required to register on different days, and all those born after September 19, 1930, were required to register “on the day they attain the eighteenth anniversary of the day of their birth, or within five days thereafter.” The registration provisions of that Act have remained in force since 1948, and there has thus been a continual registration of 18-year-olds shortly after their birthday. With the exception of a few men who are not subject to registration when they are 18 but may become so later on, the effect of these provisions has been to eliminate the necessity for registrations of men older than 18. Viewed in the light of history we do not think the Act intended to treat continued failure to register as a renewal of the original crime or the repeated commission of new offenses, but rather perpetuated the conception of the first registration that a man must register at a particular time and his failure to do so at that time is a single offense. That time will not be the same day for all as it was in 1917, and from the Selective Service System’s viewpoint the process of registration is a “continuing” one. But from the registrant’s viewpoint the obligation arises at a specific time. In Toussie’s case it arose when he turned 18. He was allowed a five-day period in which to fulfill the duty, but when he did not do so he then and there committed the crime of failing to register.

The Government points out that the “continuing duty” regulation has been in existence since before the passage of the 1948 Act, and that most lower federal courts have held that failing to register is a continuing offense for purposes of applying the statute of limitations. It is suggested that since Congress has legislated several times in this field, its failure to indicate that the crime should not be treated as a continuing offense supports the Government's argument that it is. Petitioner on the other hand suggests that Congress has on occasion explicitly stated that a certain offense will be deemed a continuing one, and its failure to do so in this statute indicates that it did not intend to adopt that theory. Since there is no specific evidence that Congress actually was aware of this limitations question when it acted— whatever weight such evidence might deserve — and since we are reluctant to imply a continuing offense except in limited circumstances, we conclude that any argument based on congressional silence is stronger in favor of not construing this Act as incorporating a continuing-offense theory.

Unlike other instances in which this Court has held that a particular statute describes a continuing offense, there is no language in this Act that clearly contemplates a prolonged course of conduct. While it is true that the regulation does in explicit terms refer to registration as a continuing duty, we cannot give it the effect of making this criminal offense a continuing one. Since such offenses are not to be implied except in limited circumstances, and since questions of limitations are fundamentally matters of legislative not administrative decision, we think this regulation should not be relied upon effectively to stretch a five-year statute of limitations into a 13-year one, unless the statute itself, apart from the regulation, justifies that conclusion.

There is also nothing inherent in the act of registration itself which makes failure to do so a continuing crime. Failing to register is not like a conspiracy which the Court has held continues as long as the conspirators engage in overt acts in furtherance of their plot. See United States v. Kissel, 218 U. S. 601 (1910), Grunewald v. United States, 353 U. S. 391 (1957). It is in the nature of a conspiracy that each day’s acts bring a renewed threat of the substantive evil Congress sought to prevent. The fact that the first draft registrations clearly were viewed as instantaneous events and not a continuing process indicates that there is nothing inherent in the nature of failing to register that makes it a continuing offense.

We do not mean that the argument in support of implying a continuing offense in this case is insubstantial, but it is at best highly equivocal. Basically we are faced with the task of construing a somewhat ambiguous statute in one of two ways. One way would limit institution of prosecution to a period of five years following the initial violation, while the other could effectively extend the final date for prosecution until as late as 13 years after the crime is first complete. As we have said before:

“when choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite. We should not derive criminal outlawry from some ambiguous implication.” United States v. Universal Corp., 344 U. S. 218, 221-222 (1952).

Not insignificantly those remarks were also made in the context of considering the continuing-offense doctrine. In light of all these considerations we conclude that the draft law does not intend to permit criminal prosecution for failing to register as late as 13 years after the initial failure. Consequently the statute of limitations begins to run at the initial failure to register as required by law. Since the facts in this case clearly show that Toussie failed in his legal obligation when he did not register prior to June 28, 1959, the statute began to run at that time and prosecution based on an indictment returned almost eight years later was barred.

It should be emphasized that this conclusion does not mean that the gravity of this offense is in any way diminished. Failure to register is subject to heavy criminal penalties. The only question is whether those penalties must result from a prosecution begun within five years or whether they can be delayed for a longer period. We are not convinced that limiting prosecution to a period of five years following the initial failure to register will significantly impair either the essential function of raising an army or the prosecution of those who fail to register. We do feel that the threat of criminal punishment and the five-year statute of limitations is a sufficient incentive to encourage compliance with the registration requirements. If Congress had felt otherwise it could easily have provided for a longer period of limitations. It has not yet done so.

There is no doubt that the jury found that Toussie willfully failed to register and thereby subject himself to the same possibility of military service that faces other young men who fully comply with their legal obligations. There is some cause to feel that dismissal of the indictment in such a case is an injustice in a society based on full and equal application of the laws. But while Congress has said that failure to register is a crime, it has also made prosecution subject to the statute of limitations. “Every statute of limitations, of course, may permit a rogue to escape,” Pendergast v. United States, 317 U. S. 412, 418 (1943), but when a court concludes that the statute does bar a given prosecution, it must give effect to the clear expression of congressional will that in such a case “no person shall be prosecuted, tried, or punished.” The judgment of conviction in this case must therefore be

Reversed.

Mr. Justice White,

with whom The Chief Justice and Mr. Justice Harlan join,

dissenting.

The general statute of limitations provides in pertinent part that “[ejxcept as otherwise expressly provided by law, no person shall be prosecuted . . . unless the indictment is found . . . within five years next after such offense shall have been committed.” 18 U. S. C. § 3282. The majority holds that this statute bars petitioner’s prosecution, shortly before his 26th birthday, for failing ever to have registered for the draft. That conclusion, I submit, is supported by neither the language, the purpose, nor the history of the applicable Selective Service Acts.

It is at once clear that nothing is gained by stressing that the general statute of limitations applies “[ejxcept as otherwise expressly provided by law.” The question in this case is not whether the five-year statute applies, but when it begins to run. That question in turn depends on what the “offense” is for which petitioner is being tried, and when it was that he committed that offense. In the typical case, an offense is complete as soon as every element in the crime occurs, and the statute of limitations begins to run from that date. But in the case of a “continuing offense,” the crime is not exhausted for purposes of the statute of limitations as long as the proscribed course of conduct continues. United States v. Cores, 356 U. S. 405, 409 (1958); United States v. Kissel, 218 U. S. 601, 607 (1910); see Model Penal Code § 1.07, Comment (Tent. Draft No. 5, 1956). The question into which category a given offense falls has long been held to be entirely a matter of statutory interpretation. See, e. g., United States v. Cores, supra; Pendergast v. United States, 317 U. S. 412, 419-421 (1943); Bramblett v. United States, 97 U. S. App. D. C. 330, 332, 231 F. 2d 489, 491, cert. denied, 350 U. S. 1015 (1956).

In this case, the offense derives from 50 U. S. C. App. §§ 453 and 462 (a) (1964 ed. and Supp. IV). The latter section makes it a crime to evade registration or to “neglect or refuse to perform any duty” required by the Selective Service laws. The former section — 453 — spells out the “duty” that petitioner is charged with failing to perform here:

“[I]t shall be the duty of every male citizen of the United States, and every other male person now or hereafter in the United States, who, on the day or days fixed for the first or any subsequent registration, is between the ages of eighteen and twenty-six, to present himself for and submit to registration at such time or times and place or places, and in such manner, as shall be determined by proclamation of the President and by rules and regulations prescribed hereunder.”

By any natural reading of this language, at least where the President has established “times” and “places” for continually accepting registrations, the “offense” created is the offense of being at one and the same time, unregistered after having been required to register, and being between the ages of 18 and 26. Indeed, coupled with § 462’s provision for punishment of anyone who “evades” registration, this crime is very similar to the crime committed by an alien who unlawfully “remains” in the country. See United States v. Cores, supra; majority opinion, ante, at 120 n. 16. Under this view of the Act, the only question that the statute of limitations raises is whether, at any time within five years preceding the indictment, those two characteristics — being unregistered and between the specified age limits — accurately described the accused.

The majority concludes, however, that the only duty prescribed by § 453 is a duty to register on those specific days — and those days only — declared by the President for initial registrations. In this case, by presidential proclamation, persons not yet 18 in 1948 were to “be registered on the day they attain the eighteenth anniversary of the day of their birth, or within five days thereafter.” According to the majority, once the fifth day has passed, the unregistered 18-year-old, although he has indeed committed an offense, is no longer under any further obligation to register. That conclusion is wholly at odds with the purposes of the Selective Service Act as a whole and this section in particular, as well as with the regulations, longstanding administrative interpretation, and the presidential proclamation itself.

Since 1941, Selective Service regulations, issued under authority explicitly granted the President, 50 U. S. C. App. § 460 (1964 ed. and Supp. IV); 32 CFR pt. 1611 (invoking authority under § 460), have provided that:

“The duty of every person subject to registration to present himself for and submit to registration shall continue at all times, and if for any reason any such person is not registered on the day or one of the days fixed for his registration, he shall immediately present himself for and submit to registration before the local board in the area where he happens to be.” 32 CFR § 1611.7 (c).

If there was any doubt as to whether the duty imposed by § 453 extends beyond the fifth day after petitioner’s birthday, this regulation surely sets that issue at rest. Indeed, the Court apparently concedes as much since it decides to fall back on the theory that the regulation is not authorized by the Act.

That position, however, is simply untenable. In addition to the general authorization to the President in § 460 (b) “to prescribe the necessary rules and regulations to carry out the provisions of this title,” § 453 itself expressly requires registration “at such time or times and place or places, and in such manner, as shall be determined by proclamation of the President and by rules and regulations prescribed hereunder.” The majority’s reference to the 1917 Act, if it proves anything, proves just the opposite of the Court’s conclusion. Under that Act, the President prescribed one day when registration was to take place, utilizing local election precincts and a registration system that were not well adapted to take registrations on any other day. By 1942, the system had been streamlined to the point where local boards were open every day for the purpose of accepting new registrations. The current regulations are nothing more or less than a setting of “times” and “places” (your nearest local board during the usual business hours) for late as well as timely registrations. Within five years prior to the bringing of this indictment, petitioner — in the words of the statute — had a “time” and a “place” to register, “determined by proclamation of the President and by rules and regulations prescribed” by the President.

Despite the majority’s implication to the contrary, ante, at 120, there is specific evidence that Congress actually was aware of this question when it acted, and that Congress did not expect that the duty to register would cease merely because the times set for initial registration had passed. During the hearings on the 1940 Act, Senator Reynolds asked then-Major Hershey whether a person could avoid his duty to register altogether by, for example, joining the National Guard — which would give him an exemption — and then getting out as soon as registration day had passed. Major Hershey replied that such persons would have to register as soon as they lost their exempt status, and he persisted in that answer despite the Senator’s puzzlement (like the majority’s) over the fact that the registration period would seem to have expired. The Senator finally accepted Major Hershey’s explanation after assuring himself that “your registration boards are at all times in session . . . [a]nd they would be given the opportunity to register.” Even the relevant presidential proclamation, wholly apart from the “continuing-duty” regulation, accords with this view that the duty to register is not defined solely in terms of the setting of the sun on the day originally fixed for registration. The proclamation declares that a person unable to register on the day fixed for his registration “because of circumstances beyond his control . . . shall do so as soon as possible after the cause for such inability ceases to exist.” Apparently, the majority concedes that in what it calls these few “exceptions,” the Act does impose a valid duty to register on a day other than the initial date. That being the case, it is inconceivable to me that Congress can be said to have authorized the President to require late registration of those with a good excuse for their tardiness, but not to have similarly authorized him to require late registration of those with a bad excuse or no excuse at all.

The “continuing-duty” view of § 453 receives support from an appraisal of the section’s purpose in the context of the statute considered as a whole. Immediately following the registration requirement, § 454 declares that “every male citizen . . . who is between the ages of 18 years and 6 months and 26 years, at the time fixed for his registration, or who attains the age of 18 years and 6 months after having been required to register pursuant to [§ 453] shall be liable for training and service in the Armed Forces . . . Since even under the majority’s view, petitioner was at one time a person “required to register,” this section, by its literal terms, made him still liable for induction at the time this indictment was brought. But if he still had a duty to serve, then it is completely illogical to conclude that he did not also still have a duty to register. The whole purpose of the registration section is to provide a manpower pool from which inductees can be selected; registration is but the necessary first step in the congressional scheme for processing, classifying, and selecting individuals for training. See United States v. O’Brien, 391 U. S. 367, 377 (1968). And the instant regulation, declaring that the duty to register “shall continue at all times,” is but one of numerous provisions and regulations in the Selective Service Act that reflect the concept that continuing duties are essential if this orderly induction process is to take place. Even apart from the settled rule that the “interpretation expressly placed on a statute by those charged with its administration must be given weight by courts faced with the task of construing the statute,” e. g., Zemel v. Rusk, 381 U. S. 1, 11 (1965), it seems clear to me that the regulation merely spells out an intent already inherent in the statutory scheme. Yet the majority holds that when dawn breaks on the unregistered male, six days after his 18th birthday, his crime is complete and ended; though the Act specifically declares that he is still liable for induction, he has no obligation to take the step that makes that induction possible. I for one cannot ascribe such inconsistent intent to Congress.

The Court does not even have the excuse that its construction is required in order to avoid a serious constitutional problem. Petitioner has argued that if his duty to register continues, he cannot be punished for failing to comply since late registration would necessarily be incriminating. See Leary v. United States, 395 U. S. 6 (1969); Marchetti v. United States, 390 U. S. 39 (1968); Grosso v. United States, 390 U. S. 62 (1968). But the Court of Appeals below drew dead aim on the defect in this argument, and the Court’s opinion wisely refrains from relying on the suggested Fifth Amendment problem. For if this is a continuing offense, petitioner— as the Government concedes — is subject to only one prosecution based on his single uninterrupted course of conduct. See Model Penal Code, § 1.08, Comment 33-34 (Tent. Draft No. 5, 1956). Petitioner was subject to that prosecution six days after his 18th birthday; his continued failure to register did not subject him to any additional penalty beyond what he had already risked. Thus, though it may be conceded that late registration would have been incriminating, the statute here, unlike the statutes in Marchetti, Grosso, and Leary does not compel incrimination. Petitioner had nothing to gain in the form of avoiding an additional penalty by registering and revealing that his registration was late. The only possible “incentive” in this case stems from the fact that by registering, petitioner would have caused the statute of limitations to commence running, thus giving the Government only five years in which to prosecute instead of leaving prosecution open until age 31. To suggest that this possibility of starting the statute running is sufficiently “attractive” to amount to “compulsion” for purposes of the Fifth Amendment is purest fancy.

The “continuing offense” is hardly a stranger to American jurisprudence. The concept has been extended to embrace such crimes as embezzlement, conspiracy, bigamy, nuisance, failure to provide support, repeated failure to file reports, failure to register under the Alien Registration Act, failure to notify the local board of a change in address, and, until today, failure to register for the draft. Since the continuing-offense concept too freely applied can lead to tension with the purposes of a statute of limitations, we should undoubtedly approach the task of statutory interpretation with “a presumption against a finding that an offense is a continuing one . . . Model Penal Code § 1.07, Comment (Tent. Draft No. 5, 1956). But the presumption is by its nature rebuttable; if it is ever to give way, it must surely do so in a case such as this where every other guide to statutory interpretation points to a contrary legislative intent. To hold otherwise — to erect as the majority does an absolute bar to finding a continuing offense in the absence of express statutory language — is to shirk our judicial responsibility of interpreting Acts of Congress as they come to us, without insisting that Congress make our task easier by using some particular form of words to express its intent. Our own cases distinguish the “instantaneous” from the “continuing” offense on the theory that in the former case, the illegal aim is attained as soon as every element of the crime has occurred, whereas in the latter case, the unlawful course of conduct is “set on foot by a single impulse and operated by an unintermittent force,” until the ultimate illegal objective is finally attained. United States v. Midstate Co., 306 U. S. 161, 166 (1939); see also United States v. Universal Corp., 344 U. S. 218, 224 (1952). The latter definition fits this case precisely. By his own testimony, petitioner admits that he set out to evade registration and liability for the draft. That aim could only be accomplished by remaining unregistered until he was past 26 — the age of prime liability. If he had succeeded in reaching 26 and escaping liability, the Government should have its five years to detect and punish his illegal course of conduct. As it is, the Court holds that petitioner not only succeeded in his aim, but was immune from prosecution for his unlawful conduct at the age of 23. While all around him, young men were being inducted, 26-year-olds first, petitioner at 18 years and 6 days is forever free of any duty — and at 23 is forever free from prosecution for his initial failure — to place himself, like them, into the pool from which inductees are selected. I cannot agree. I would affirm.

       50 U. S. C. App. § 453. This Act was amended by the Military Selective Service Act of 1967, 81 Stat. 100, but those amendments did not change this provision. Failure to perform this duty is punishable by fine, imprisonment, or both. 50 U. S. C. App. § 462 (a) (1964 ed., Supp. IV).

       Proclamation No. 2799, July 20, 1948, 62 Stat. 1531. The Proclamation was first issued under the authority of the Selective Service Act of 1948, 62 Stat. 604, but it was continued after the passage of the Universal Military Training and Service Act by Proclamation No. 2942, August 30, 1951, 65 Stat. c35.

       Proclamation of May 18, 1917, 40 Stat. 1664.

       U. S. Selective Service System, Registration and Selective Service 11 (1946).

       Proclamation of August 13, 1918, 40 Stat. 1834.

       The first registration was of all men between the ages of 21 and 30. 40 Stat. 80. In 1918 Congress expanded the group to all those between the ages of 18 and 45. 40 Stat. 955.

       Proclamation of August 31, 1918, 40 Stat. 1840.

       Proclamation No. 2425, September 16, 1940, 54 Stat. 2739.

       Proclamation No. 2572, November 17, 1942, 56 Stat. 1982.

       See supra, at 113.

       See supra, at 113, and Proclamation No. 2799, July 20, 1948, 62 Stat. 1531.

       For example, students at certain military colleges are exempted from registration. 50 U. S. C. App. § 456 (a) (1) (1964 ed., Supp. IV). If a student in such an institution withdraws, he would presumably be required to register since the Act specifically states that “[n]o exemption from registration . . . shall continue after the cause therefor ceases to exist.” 50 U. S. C. App. § 456 (k). Thus such a student may not be required to register until some time after his 18th birthday.

       The regulation was first promulgated under the 1940 Act on June 4, 1941. Selective Service System Regulations Vol. 2, § IX, 205 (d), 6 Fed. Reg. 2747.

        See Fogel v. United States, 162 F. 2d 54 (C. A. 5th Cir.), cert. denied, 332 U. S. 791 (1947); Gara v. United States, 178 F. 2d 38, 40 (C. A. 6th Cir. 1949), aff’d by an equally divided Court, 340 U. S. 857 (1950); McGregor v. United States, 206 F. 2d 583 (C. A. 4th Cir. 1953); cf. United States v. Guertler, 147 F. 2d 796 (C. A. 2d Cir. 1945). But cf. United States v. Salberg, 287 F. 208 (D. C. N. D. Ohio 1923).

       Congress has provided that concealment of a bankrupt’s assets shall “be deemed to be a continuing offense . . . and the period of limitations shall not begin to run until . . . final discharge or denial of discharge.” 18 U. S. C. § 3284.

       Cf. United States v. Cores, 356 U. S. 405 (1958), in which the Court held, for venue purposes, that the statute prohibiting alien crewmen from remaining in the United States after their permits expired contemplated that the offense would continue as long as the crewman remained in this country and the statute of limitations did not start to run when he first overstayed his permit. In that case we stated that “[s]ection 252 (c) punishes '[a]ny alien crewman who willfully remains in the United States in excess of the number of days allowed.’ The conduct proscribed is the affirmative act of willfully remaining, and the crucial word 'remains’ permits no connotation other than continuing presence.” Id., at 408. See also Armour

        Packing Co. v. United States, 209 U. S. 56 (1908), in which we held that, for venue purposes, violations of the Elkins Act, 32 Stat. 847, were continuing offenses. In that case the statute specifically provided that “[e]very violation . . . shall be prosecuted in any court of the United States having jurisdiction of crimes within the district in which such violation was committed or through which the transportation may have been conducted . . . .” Id., at 73. Both of these cases dealt with venue and did not involve the statute of limitations question presented in this case.

       It is significant that the courts that have concluded that failure to register is a continuing offense have done so by relying explicitly on the regulation. See Fogel v. United States, supra, at 55; McGregor v. United States, supra, at 584; Gara v. United States, supra, at 39; and the opinions below in this case, 280 F. Supp., at 474, 410 F. 2d, at 1157. It is equally significant that the only court that concluded that the offense was not a continuing one did so at a time when there was no “continuing-duty” regulation issued to implement the registration provisions. United States v. Salberg, supra, interpreting the 1917 Draft Act, held that failure to register was not a continuing offense. The first continuing-duty regulation was promulgated in 1941. See n. 13, supra. These decisions support our conclusion that the statute itself, apart from any reliance on the administrative regulation, does not require that it be construed to incorporate a continuing-offense theory. We do not hold, as the dissent seems to imply, post, at 127, that the continuing-duty regulation is unauthorized by the Act. All we hold is that neither the regulation nor the Act itself requires that failure to register be treated as the type of offense that effectively extends the statute of limitations.

       Despite the majority’s assertion to the contrary, the quoted regulation is neither the first nor the only regulation reflecting the expectation that registration was to occur, even though it was “late” registration. Even under the 1917 Act, the regulations “prescribed by the President under the authority vested in him by the terms of the Selective Service Law,” U. S. War Dept., Selective Service Regulations, p. i (2d ed. 1918), provided for registration “other than on Registration Day . . . irrespective of the date on which [the applicant] was required to register.” Id., § 54; see U. S. War Dept., Selective Service Regulations § 54 (1917) (“Local Boards will accomplish the registration of persons subject to registration who, for any reason, have not been registered on or since [Registration Day]”) (emphasis added). Similarly, under the 1940 Act, procedures were described for registering “[a] 11 persons who present themselves for registration, including persons who should have registered on a previous registration day . . . .” 32 CFR § 613.11 (b) (Cum. Supp. 1944) (emphasis added). And the current regulations provide that “[t]he Director of Selective Service shall also arrange for and supervise the registration of persons who present themselves for registration at times other than on the day or days fixed for any registration.” 32 CFR § 1612.1.
      It is incongruous, to say the least, to admit that local boards have a duty and responsibility to register late applicants, see also 32 CFR § 1611.6, but that such applicants have no corresponding duty to cooperate with the board. Presumably under the majority’s view, an unregistered male, discovered by the local board after the time for his initial registration had passed, could not be punished if he “refuses to cooperate or is inclined to evade, refuses to answer, or answers falsely . . . ." See 32 CFR § 1613.16 (provision for dealing with “recalcitrants”).

       The majority seems concerned to distinguish the “limitations question,” ante, at 120, from the question of whether the duty in this case is continuing, ante, at 121 n. 17. But the Court cannot have it both ways. If the duty continues, as the regulation prescribes, the limitations question has been settled: the definition of the “offense” was not yet exhausted when this indictment was brought. United States v. Cores, 356 U. S. 405, 409 (1958); United States v. Kissel, 218 U. S. 601, 607 (1910). If, on the other hand, the statute has run, then the “continuing-duty” regulation must be invalid. While I can sympathize with the Court's discomfort over the position it is thus forced to assume, I view that unease as simply an additional indication that the regulations involved in this case are fully within the scope of the powers given the President under the Act.

       The first registration is described in U. S. Selective Service System, Registration and Selective Service 10-11 (1946):
      “The basic idea was to follow the general organization and the administrative units of the election machinery. The Governors in the States, the County Clerks, or other designated persons in the county and in registration precincts were selected or appointed registrars. The ordinary place of registration was the ordinary place for voting. Thus the normal processes of Government were utilized for this extraordinary activity.”
      Although it appears that late registration by local boards after Registration Day was authorized by the President, see n. 1, supra, until World War II and the 1940 Act, the local boards’ “primary functions [were] not registration but classification and induction.” Id., at 23. Once Registration Day had passed, and the emergency machinery had been dismantled, special procedures were required for accomplishing late registration, see U. S. War Dept., Selective Service Regulations § 54 (b) (2d ed. 1918), and "local boards had difficulty with the proper entry or handling of registrations which, too often for insufficient reason, were received late.” U. S. Selective Service System, supra, at 91. Significantly, during subsequent registration days under the 1917 Act, when the boards once again had the help of special machinery, tens of thousands of tardy registrations were effected. Id., at 15. By 1941, the boards were equipped to handle late registrations as a matter of course, resulting in the issuance of the “continuing-duty” regulation. See id., at 42, 91-924

       See, for example, in addition to the “eontinuing-duty” regulation, the following regulation designating the “Place and time of registration”:
      “Any person required to be registered may present himself for and submit to registration at any designated place of registration or at the office of any local board during the hours for registration specified in the Presidential proclamation or during the usual business hours.” 32 CFR § 1613.1 (a) (emphasis added).

       Hearings on S. 4164 before the Senate Committee on Military Affairs, 76th Cong., 3d Sess., 385 (1940). See also the exchange between Senator Reynolds — by then Chairman of the Committee— and General Hershey during hearings a year later on an amendment to the 1940 Act, pointing out that the Act “gives a broad discretion to call these men in as the Army sees fit . . . [a]nd to register them as they see fit.” Hearings on S. 2126 before the Senate Committee on Military Affairs, 77th Cong., 1st Sess., 34 (1941).

       Proclamation No. 2799, July 20, 1948, 62 Stat. 1531, 13 Fed. Reg. 4173. Similar language is contained in the Supplementing Proclamation, No. 2942, August 30, 1951, 65 Stat. c36.

       This view of the registration provisions, relating them to the induction provisions as a reservoir to a pipeline, was repeatedly emphasized in the hearings on the 1940 Act and amendments thereto. See, e. g., Hearings on H. R. 10132 before the House Committee on Military Affairs, 76th Cong., 3d Sess., 10-11, 15, 116 (1940); Hearings on S. 2126 before the Senate Committee on Military Affairs, 77th Cong., 1st Sess., 83 (1941) (“if you do not coordinate registration and induction, you are going to run into embarrassment”); U. S. Selective Service System, supra, n. 3, at 1-2 (“[t]he object ... of registration is ... to know where available manpower is and to be able to reach it . . .”).

       See 32 CFR §§ 1617.1, 1623.5 (registration and classification certificates must be kept in one’s personal possession “at all times"); 32 CFR § 1641.7 (duty to keep local board informed of current status); 32 CFR § 1641.3 (duty “to keep [the registrant’s] local board advised at all times of the address where mail will reach him”). The latter regulation was long ago interpreted as imposing a continuing duty to advise the local board of a change of address in a decision that rejected a claim similar to petitioner’s that the then three-year statute of limitations barred prosecution, because the address was changed more than three years before the indictment was brought. United States v. Guertler, 147 F. 2d 796 (C. A. 2d Cir. 1945). Presumably under the majority’s theory that “continuing duties’’ can only be created by express provision in the statute, this decision is overruled, and the continuing duty imposed by this regulation is brushed aside — all in the face of a statute that Congress knew "wouldn’t be worth a dime to us in 2 years” if registration information and lists were not “kept up to date.” Hearings on S. 2126 before the Senate Committee on Military Affairs, 77th Cong., 1st Sess., 37, 38 (1941).

       In the Military Selective Service Act of 1967, enacted June 30, 1967, 81 Stat. 100, Congress added to § 454 (a) a provision that registrants who failed or refused to report for induction were “to remain liable for induction and when available shall be immediately inducted.” 50 U. S. C. App. § 454 (1964 ed., Supp. IV). Petitioner relies on this provision as an indication that Congress did not intend to impose continuing duties except where, as here, it used express language to that effect. The legislative history shows just the opposite to be the case. Congress assumed that, even without express language, liability for induction would continue until age 26; the amendment was prompted solely in order to “insure that a registrant who prolongs litigation of his draft classification beyond age 26” (when he would “no longer [be] liable for military service”) “would nonetheless remain liable for induction, regardless of age . . . .” H. R. Rep. No. 267, 90th Cong., 1st Sess., 30 (1967). There is not the slightest suggestion that Congress suspected that the registration and liability provisions of §§ 453 and 454 — interrelated provisions which must fairly be read in pari materia — ever created anything other than continuing duties until the specified 26-year age limit was reached.

       Petitioner has suggested that if the duty to register is continuing, there is no logical stopping place for bounding the duty, so that “a person seventy years old can be prosecuted for having failed to register fifty-two years before at the age of eighteen.” Brief for Petitioner 17. But the paraded horrible overlooks the fact that the same provisions that create the dutsq also indicate that the duty ends at age 26 — the age beyond which no one was ever required to register under this Act and this proclamation, and beyond which no one would normally have been liable for induction. See nn. 6, 8, supra; S. Rep. No. 1268, 80th Cong., 2d Sess., 6 (1948) (“[Registration is not required of persons who have reached the age of 26”).

       See State v. Thang, 188 Minn. 224, 246 N. W. 891 (1933).

       See Grunewald v. United States, 353 U. S. 391 (1957); United States v. Socony-Vacuum Oil Co., 310 U. S. 150, 253 (1940); United States v. Kissel, 218 U. S. 601 (1910).

       See Cox v. State, 117 Ala. 103, 23 So. 806 (1898); compare People v. Brady, 257 App. Div. 1000, 13 N. Y. S. 2d 789 (1939), with Commonwealth v. Ross, 248 Mass. 15, 142 N. E. 791 (1924). S. E. 447

        E. g., State v. Dry Fork R. Co., 50 W. Va. 235, 40 S. E. 447 (1901). A. 124

        Richardson v. State, 30 Del. (7 Boyce) 534, 109 A. 124 (Ct. Gen. Sess. 1920); Towns v. State, 24 Ga. App. 265, 100 S. E. 575 (1919).

        See Hanf v. United States, 235 F. 2d 710 (C. A. 8th Cir.), cert. denied, 352 U. S. 880 (1956).

        United States v. Franklin, 188 F. 2d 182 (C. A. 7th Cir. 1951).

        United States v. Guertler, 147 F. 2d 796 (C. A. 2d Cir. 1945); see n. 8, supra.

       See Fogel v. United States, 162 F. 2d 54 (C. A. 5th Cir.), cert. denied, 332 U. S. 791 (1947); Gara v. United States, 178 F. 2d 38, 40 (C. A. 6th Cir. 1949), aff’d by an equally divided Court, 340 U. S. 857 (1950); McGregor v. United States, 206 F. 2d 583 (C. A. 4th Cir. 1953). But cf. United States v. Salberg, 287 F. 208 (D. C. N. D. Ohio 1923) (holding the duty under the 1917 Act not to be continuing).

       Similarly, the requirement that criminal statutes be strictly construed in determining the substantive offense in order to prevent problems of fair warning, cf. United States v. Universal Corp., 344 U. S. 218 (holding that defendant’s acts constituted a continuing course of conduct, subject only to one prosecution), does not lead to the majority’s per se rule in deciding what type of offense is involved for purposes of the statute of limitations. Given the explicit provisions of § 453, the “continuing-duty” regulation, and the consistent administrative interpretation of the Act, there can be no suggestion that petitioner did not have fair warning that he was required to register, or that petitioner was unfairly led into thinking that repose would be his when he reached 23.


source: Caselaw Access Project

author: Mb. Justice Stewart

license: Public Domain

text:
    PIKE v. BRUCE CHURCH, INC.
    No. 301.
    Argued January 13, 1970
    Decided March 2, 1970

      Rex E. Lee argued the cause for appellant. With him on the briefs were Gary K. Nelson, Attorney General of Arizona, and Thomas A. Miller, Assistant Attorney General.

      Jacob Abramson argued the cause and filed briefs for appellee.

      George C. Lyon filed a brief for the Western Growers Association as amicus curiae urging reversal.
   Mb. Justice Stewart

delivered the opinion of the Court.

The appellee is a company engaged in extensive commercial farming operations in Arizona and California. The appellant is the official charged with enforcing the Arizona Fruit and Vegetable Standardization Act. A provision of the Act requires that, with certain exceptions, all cantaloupes grown in Arizona and offered for sale must “be packed in regular compact arrangement in closed standard containers approved by the supervisor . ...” Invoking his authority under that provision, the appellant issued an order prohibiting the appellee company from transporting uncrated cantaloupes from its Parker, Arizona, ranch to nearby Blythe, California, for packing and processing. The company then brought this action in a federal court to enjoin the order as unconstitutional. A three-judge court was convened. 28 U. S. C. §§ 2281, 2284. After first granting temporary relief, the court issued a permanent injunction upon the ground that the challenged order constituted an unlawful burden upon interstate commerce. This appeal followed. 28 U. S. C. § 1253. 396 U. S. 812.

The facts are not in dispute, having been stipulated by the parties. The appellee company has for many years been engaged in the business of growing, harvesting, processing, and packing fruits and vegetables at numerous locations in Arizona and California for interstate shipment to markets throughout the Nation. One of the company’s newest operations is at Parker, Arizona, where, pursuant to a 1964 lease with the Secretary of the Interior, the Colorado River Indian Agency, and the Colorado River Indian Tribes, it undertook to develop approximately 6,400 acres of uncultivated, arid land for agricultural use. The company has spent more than $3,000,000 in clearing, leveling, irrigating, and otherwise developing this land. The company began growing cantaloupes on part of the land in 1966, and has harvested a large cantaloupe crop there in each subsequent year. The cantaloupes are considered to be of higher quality than those grown in other areas of the State. Because they are highly perishable, cantaloupes must upon maturity be immediately harvested, processed, packed, and shipped in order to prevent spoilage. The processing and packing operations can be performed only in packing sheds. Because the company had no such facilities at Parker, it transported its 1966 Parker cantaloupe harvest in bulk loads to Blythe, California, 31 miles away, where it operated centralized and efficient packing shed facilities. There the melons were sorted, inspected, packed, and shipped. In 1967 the company again sent its Parker cantaloupe crop to Blythe for sorting, packing, and shipping. In 1968, however, the appellant entered the order here in issue, prohibiting the company from shipping its cantaloupes out of the State unless they were packed in containers in a manner and of a kind approved by the appellant. Because cantaloupes in the quantity involved can be so packed only in packing sheds, and because no such facilities were available to the company at Parker or anywhere else nearby in Arizona, the company faced imminent loss of its anticipated 1968 cantaloupe crop in the gross amount of $700,000. It was to prevent this unrecoverable loss that the District Court granted preliminary relief.

After discovery proceedings, an agreed statement of facts was filed with the court. It contained a stipulation that the practical effect of the appellant’s order would be to compel the company to build packing facilities in or near Parker, Arizona, that would take many months to construct and would cost approximately $200,000. After briefing and argument, the court issued a permanent injunction, finding that “the order complained of constitutes an unlawful' burden upon interstate commerce.”

The appellant’s threshold contention here is that even though the challenged order expressly forbids the interstate bulk shipment of the company’s cantaloupes, it imposes no burden upon interstate commerce. If the Arizona Act is complied with, he argues, all that will be regulated will be the intrastate packing of goods destined for interstate commerce. Articles being made ready for interstate movement are not necessarily yet in interstate commerce, which, he says, begins only when the articles are delivered to the interstate shipper. In making this argument, the appellant relies on this Court’s decisions in Federal Compress Co. v. McLean, 291 U. S. 17, and Chassaniol v. City of Greenwood, 291 U. S. 584. Both of those cases involved taxes imposed by Mississippi on a cotton warehouse and compress business located within that State. The taxes were nondiscriminatory and were levied both on the warehoused cotton itself and on certain processes necessary to ready it for subsequent resale. The taxes were challenged as unlawful burdens on interstate commerce, since most of the taxed cotton was ultimately to be shipped to out-of-state buyers. The Court upheld the constitutionality of the Mississippi taxes. It is not entirely clear from the Court’s opinions whether their rationale was that the taxes were imposed before interstate commerce had begun, or that the burden upon commerce was at the most indirect and remote.

But in any event, the decisions do not support the argument that the order in the present case does not affect interstate commerce. In the first place, those cases involved cotton that had come to rest in Mississippi, and “[b]efore shipping orders [were] given, it [had] no ascertainable destination without the state.” 291 U. S., at 21. Here, by contrast, the perishable cantaloupes were destined to be shipped to an ascertainable location in California immediately upon harvest. Even more to the point, the taxes in Federal Compress and Chassaniol were imposed on goods and operations within the State, whereas the application of the statute at issue here would require that an operation now carried on outside the State must be performed instead within the State so that it can be regulated there. If the appellant’s theory were correct, then statutes expressly requiring that certain kinds of processing be done in the home State before shipment to a sister State would be immune from constitutional challenge. Yet such statutes have been consistently invalidated by this Court under the Commerce Clause. Foster-Fountain Packing Co. v. Haydel, 278 U. S. 1; Johnson v. Haydel, 278 U. S. 16; Toomer v. Witsell, 334 U. S. 385. See also Lemke v. Farmers Grain Co., 258 U. S. 50; Shafer v. Farmers Grain Co., 268 U. S. 189. Thus it is clear that the appellant’s order does affect and burden interstate commerce, and the question then becomes whether it does so unconstitutionally.

Although the criteria for determining the validity of state statutes affecting interstate commerce have been variously stated, the general rule that emerges can be phrased as follows: Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. Huron Cement Co. v. Detroit, 362 U. S. 440, 443. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities. Occasionally the Court has candidly undertaken a balancing approach in resolving these issues, Southern Pacific Co. v. Arizona, 325 U. S. 761, but more frequently it has spoken in terms of “direct” and “indirect” effects and burdens. See, e. g., Shafer v. Farmers Grain Co., supra.

At the core of the Arizona Eruit and Vegetable Standardization Act are the requirements that fruits and vegetables shipped from Arizona meet certain standards of wholesomeness and quality, and that they be packed in standard containers in such a way that the outer layer or exposed portion of the pack does not “materially misrepresent” the quality of the lot as a whole. The impetus for the Act was the fear that some growers were shipping inferior or deceptively packaged produce, with the result that the reputation of Arizona growers generally was being tarnished and their financial return concomitantly reduced. It was to prevent this that the Act was passed in 1929. The State has stipulated that its primary purpose is to promote and preserve the reputation of Arizona growers by prohibiting deceptive packaging.

We are not, then, dealing here with “state legislation in the field of safety where the propriety of local regulation has long been recognized,” or with an Act designed to protect consumers in Arizona from contaminated or unfit goods. Its purpose and design are simply to protect and enhance the reputation of growers within the State. These are surely legitimate state interests. Sligh v. Kirkwood, 237 U. S. 52, 61. We have upheld a State's power to require that produce packaged in the State be packaged in a particular kind of receptacle, Pacific States Box & Basket Co. v. White, 296 U. S. 176. And we have recognized the legitimate interest of a State in maximizing the financial return to an industry within it. Parker v. Brown, 317 U. S. 341. Therefore, as applied to Arizona growers who package their produce in Arizona, we may assume the constitutional validity of the Act. We may further assume that Arizona has full constitutional power to forbid the misleading use of its name on produce that was grown or packed elsewhere. And, to the extent the Act forbids the shipment of contaminated or unfit produce, it clearly rests on sure footing. For, as the Court has said, such produce is “not the legitimate subject of trade or commerce, nor within the protection of the commerce clause of the Constitution.” Sligh v. Kirkwood, supra, at 60; Baldwin v. Seelig, 294 U. S. 511.

But application of the Act through the appellant’s order to the appellee company has a far different impact, and quite a different purpose. The cantaloupes grown by the company at Parker are of exceptionally high quality. The company does not pack them in Arizona and cannot do so without making a capital expenditure of approximately $200,000. It transports them in bulk to nearby Blythe, California, where they are sorted, inspected, packed, and shipped in containers that do not identify them as Arizona cantaloupes, but bear the name of their California packer. The appellant’s order would forbid the company to pack its cantaloupes outside Arizona, not for the purpose of keeping the reputation of its growers unsullied, but to enhance their reputation through the reflected good will of the company’s superior produce. The appellant, in other words, is not complaining because the company is putting the good name of Arizona on an inferior or deceptively packaged product, but because it is not putting that name on a product that is superior and well packaged. As the appellant’s brief puts the matter, “It is within Arizona’s legitimate interest to require that interstate cantaloupe purchasers be informed that this high quality Parker fruit was grown in Arizona.”

Although it is not easy to see why the other growers of Arizona are entitled to benefit at the company's expense from the fact that it produces superior crops, we may assume that the asserted state interest is a legitimate one. But the State’s tenuous interest in having the company’s cantaloupes identified as originating in Arizona cannot constitutionally justify the requirement that the company build and operate an unneeded $200,000 packing plant in the State. The nature of that burden is, constitutionally, more significant than its extent. For the Court has viewed with particular suspicion state statutes requiring business operations to be performed in the home State that could more efficiently be performed elsewhere. Even where the State is pursuing a clearly legitimate local interest, this particular burden on commerce has been declared to be virtually per se illegal. Foster-Fountain Packing Co. v. Haydel, 278 U. S. 1; Johnson v. Haydel, 278 U. S. 16; Toomer v. Witsell, 334 U. S. 385.

The appellant argues that the above cases are different because they involved statutes whose express or concealed purpose was to preserve or secure employment for the home State, while here the statute is a regulatory one and there is no hint of such a purpose. But in Toomer v. Witsell, supra, the Court indicated that such a burden upon interstate commerce is unconstitutional even in the absence of such a purpose. In Toomer the Court held invalid a South Carolina statute requiring that owners of shrimp boats licensed by the State to fish in the maritime belt off South Carolina must unload and pack their catch in that State before “shipping or transporting it to another State.” What we said there applies to this case as well:

“There was also uncontradicted evidence that appellants’ costs would be materially increased by the necessity of having their shrimp unloaded and packed in South Carolina ports rather than at their' home bases in Georgia where they maintain their own docking, warehousing, refrigeration and packing facilities. In addition, an inevitable concomitant of a statute requiring that work be done in South Carolina, even though that be economically disadvantageous to the fishermen, is to divert to South Carolina employment and business which might otherwise go to Georgia; the necessary tendency of the statute is to impose an artificial rigidity on the economic pattern of the industry.” 334 U. S., at 403-404.

While the order issued under the Arizona statute does not impose such rigidity on an entire industry, it does impose just such a straitjacket on the appellee company with respect to the allocation of its interstate resources. Such an incidental consequence' of a regulatory scheme could perhaps be tolerated if a more compelling state interest were involved. But here the State's interest is minimal at best — certainly less substantial than a State’s interest in securing employment for its people. If the Commerce Clause forbids a State to require work to be done within its jurisdiction to promote local employment, then surely it cannot permit a State to require a person to go into a local packing business solely for the sake of enhancing the reputation of other producers within its borders.

The judgment is affirmed.

       Ariz. Rev. Stat. Ann., Tit. 3, c. 3, Art. 4.

       Ariz. Rev. Stat. Ann. § 3-503 C (Supp. 1969).

       In view of the emergency situation presented, and the fact that only a narrow and specific application of the Act was challenged as unconstitutional, the court was fully justified in not abstaining from the exercise of its jurisdiction pending litigation in the state courts. Compare Hostetter v. Idlewild Liquor Corp., 377 U. S. 324, 329 with Reetz v. Bozanich, ante, p. 82.

       The opinion of the District Court is unreported.

       Ariz. Rev. Stat. Ann. §§ 3-481 (7) and (8).

        Southern Pacific Co. v. Arizona, 325 U. S. 761, 796 (Douglas, J., dissenting).

       California Agric. Code § 45691. The California Fruit, Nut and Vegetable Standardization Act, California Agric. Code, Division 17, is virtually identical to the Arizona Act. Each statute has the same primary purpose of preventing deceptive packs, and it is stipulated that the standard containers required for cantaloupes in the two States are exactly the same.

       Appellant’s Brief 43.

       Because of the State’s recognized common-law property interest in its fish and wild game, Toomer presented an especially strong case for state control.


author: Per Curiam.

text:
    GILHOOL et al. v. CHAIRMAN, PHILADELPHIA COUNTY BOARD OF ELECTIONS, et al.
    No. 1069.
    Decided March 2, 1970

      Paul Bender for appellants.

      Levy Anderson for Chairman, Philadelphia County Board of Elections, et al., and Edward R. Becker and William Austin Meehan for the Republican City Committee et al., appellees.
   Per Curiam.

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


text:
    KOZEROWITZ v. STACK et al.
    No. 1087.
    Decided March 2, 1970

      Shalle Stephen Fine for appellant. .

      Curtis B. Goff for appellees.
   Per Curiam.

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


text:
    LAIKIND v. ATTORNEY GENERAL OF NEW YORK
    No. 68.
    Decided March 2, 1970

      Victor Konow for appellant.

      Louis J. Lejkowitz, Attorney General of New York, pro se, Samuel A. Hirshowitz, First Assistant Attorney General, and Warren M. Goidel, Assistant Attorney General, for appellee.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of a final judgment.

Mr. Justice Douglas is of the opinion that further consideration of the question of jurisdiction should be postponed to the hearing of the case on the merits.


text:
    MADDOX et al. v. FORTSON et al.
    No. 1181.
    Decided March 2, 1970

      Tully M. Bond, Jr., and T. Malone Sharpe for appellants.

      Arthur K. Bolton, Attorney General of Georgia, pro se, Harold N. Hill, Jr., Executive Assistant Attorney General, and William L. Harper and Robert J. Castellani, Assistant Attorneys General, for Fortson et al.; Lamar W. Sizemore for Gray et al., and William C. O’Kelley and Earl J. Van Qerpen for the Republican Party of Georgia et al., appellees.
   Per Curiam.

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


author: Mr. Justice Douglas

text:
    ASSOCIATION OF DATA PROCESSING SERVICE ORGANIZATIONS, INC., et al. v. CAMP, COMPTROLLER OF THE CURRENCY, et al.
    No. 85.
    Argued November 18, 1969
    Decided March 3, 1970

      Bert M. Gross argued the cause for petitioners. With him on the brief were Milton R. Wessel and Felix M. Phillips.

      Alan S. Rosenthal argued the cause for respondents. With him on the brief for respondent Camp were Solid-

      tor General Grisioold, Assistant Attorney General Ruckelshaus, and Peter L. Strauss. Fallon Kelly filed a brief for respondent American National Bank & Trust Co.

      Matthew P. Mitchell and Leland R. Selna, Jr., filed a brief for the Sierra Club as amicus curiae urging reversal.

      Matthew Hale filed a brief for the American Bankers Association as amicus curiae urging affirmance.
   Mr. Justice Douglas

delivered the opinion of the Court.

Petitioners sell data processing services to businesses generally. In this suit they seek to challenge a ruling by respondent Comptroller of the Currency that, as an incident to their banking services, national banks, including respondent American National Bank & Trust Company, may make data processing services available to other banks and to bank customers. The District Court dismissed the complaint for lack of standing of petitioners to bring the suit. 279 F. Supp. 675. The Court of Appeals affirmed. 406 F. 2d 837. The case is here on a petition for writ of certiorari which we granted. 395 U. S. 976.

Generalizations about standing to sue are largely worthless as such. One generalization is, however, necessary and that is that the question of standing, in the federal courts is to be considered in the framework of Article III which restricts judicial power to “cases” and “controversies.” As we recently stated in Flast v. Cohen, 392 U. S. 83, 101, “[I]n terms of Article III limitations on federal court jurisdiction, the question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution/' Flast was a taxpayer’s suit. The present is a competitor’s suit. And while the two have the same Article III starting point, they do not necessarily track one another.

The first question is whether the plaintiff alleges that the challenged action has caused him injury in fact, economic or otherwise. There can be no doubt but that petitioners have satisfied this test. The petitioners not only allege that competition by national banks in the business of providing data processing services might entail some future loss of profits for the petitioners, they also allege that respondent American National Bank & Trust Company was performing or preparing to perform such services for two customers for whom petitioner Data Systems, Inc., had previously agreed or negotiated to perform such services. The petitioners' suit was brought not only against the American National Bank & Trust Company, but also against the Comptroller of the Currency. The Comptroller was alleged to have caused petitioners injury in fact by his 1966 ruling which stated:

“Incidental to its banking services, a national bank may make available its data processing equipment or perform data processing services on such equipment for other banks and bank customers.” Comptroller's Manual for National Banks ¶ 3500 (October 15, 1966).

The Court of Appeals viewed the matter differently, stating:

“[A] plaintiff may challenge alleged illegal competition when as complainant it pursues (1) a legal interest by reason of public charter or contract, . . . (2) a legal interest by reason of statutory protection, ... or (3) a ‘public interest’ in which Congress has recognized the need for review of administrative action and plaintiff is significantly involved to have standing to represent the public . . . .” 406 F. 2d, at 842-843.

Those tests were based on prior decisions of this Court, such as Tennessee Power Co. v. TV A, 306 U. S. 118, where private power companies sought to enjoin TVA from operating, claiming that the statutory plan under which it was created was unconstitutional. The Court denied the competitors’ standing, holding that they did not have that status “unless the right invaded is a legal right,— one of property, one arising out of contract, one protected against tortious invasion, or one founded on a statute which confers a privilege.” Id., at 137-138.

The “legal interest” test goes to the merits. The question of standing is different. It concerns, apart from the “case” or “controversy” test, the question whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question. Thus the Administrative Procedure Act grants standing to a person “aggrieved by agency action within the meaning of a relevant statute.” 5 U. S. C. § 702 (1964 ed., Supp. IV). That interest, at times, may reflect “aesthetic, conservational, and recreational” as well as economic values. Scenic Hudson Preservation Conf. v. FPC, 354 F. 2d 608, 616; Office of Communication of United Church of Christ v. FCC, 123 U. S. App. D. C. 328, 334-340, 359 F. 2d 994, 1000-1006. A person or a family may have a spiritual stake in First Amendment values sufficient to give standing to raise issues concerning the Establishment Clause and the Free Exercise Clause. Abington School District v. Schempp, 374 U. S. 203. We mention these noneconomic values to emphasize that standing may stem from them as well as from the economic injury on which petitioners rely here. Certainly he who is “likely to be financially” injured, FCC v. Sanders Bros. Radio Station, 309 U. S. 470, 477, may be a reliable private attorney general to litigate the issues of the public interest in the present case.

Apart from Article III jurisdictional questions, problems of standing, as resolved by this Court for its own governance, have involved a “rule of self-restraint.” Barrows v. Jackson, 346 U. S. 249, 255. Congress can, of course, resolve the question one way or another, save as the requirements of Article III dictate otherwise. Muskrat v. United States, 219 U. S. 346.

Where statutes are concerned, the trend is toward enlargement of the class of people who may protest administrative action. The whole drive for enlarging the category of aggrieved “persons” is symptomatic of that trend. In a closely analogous case we held that an existing entrepreneur had standing to challenge the legality of the entrance of a newcomer into the business, because the established business was allegedly protected by a valid city ordinance that protected it from unlawful competition. Chicago v. Atchison, T. & S. F. R. Co., 357 U. S. 77, 83-84. In that tradition was Hardin v. Kentucky Utilities Co., 390 U. S. 1, which involved a section of the TVA Act designed primarily to protect, through area limitations, private utilities against TVA competition. We held that no explicit statutory provision was necessary to confer standing, since the private utility bringing suit was within the class of persons that the statutory provision was designed to protect.

It is argued that the Chicago case and the Hardin case are relevant here because of § 4 of the Bank Service Corporation Act of 1962, 76 Stat. 1132, 12 U. S. C. § 1864, which provides:

“No bank service corporation may engage in any activity other than the performance of bank services for banks.”

The Court of Appeals for the First Circuit held in Arnold Tours, Inc. v. Camp, 408 F. 2d 1147, 1153, that by reason of § 4 a data processing company has standing to contest the legality of a national bank performing data processing services for other banks and bank customers:

“Section 4 had a broader purpose than regulating only the service corporations. It was also a response to the fears expressed by a few senators, that without such a prohibition, the bill would have enabled ‘banks to engage in a nonbanking activity/ S. Rep. No. 2105, [87th Cong., 2d Sess., 7-12] (Supplemental views of Senators Proxmire, Douglas, and Neuberger), and thus constitute ‘a serious exception to the accepted public policy which strictly limits banks to banking.’ (Supplemental views of Senators Muskie and Clark). We think Congress has provided the sufficient statutory aid to standing even though the competition may not be the precise kind Congress legislated against.”

We do not put the issue in those words, for they implicate the merits. We do think, however, that § 4 arguably brings a competitor within the zone of interests protected by it.

That leaves the remaining question, whether judicial review of the Comptroller’s action has been precluded. We do not think it has been. There is great contrariety among administrative agencies created by Congress as respects “the extent to which, and the procedures by which, different measures of control afford judicial review of administrative action.” Stark v. Wickard, 321 U. S. 288, 312 (Frankfurter, J., dissenting). The answer, of course, depends on the particular enactment under which review is sought. It turns on “the existence of courts and the intent of Congress as deduced from the statutes and precedents.” Id., at 308.

The Administrative Procedure Act provides that the provisions of the Act authorizing judicial review apply “except to the extent that — (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.” 5 U. S. C. § 701 (a) (1964 ed., Supp. IV).

In Shaughnessy v. Pedreiro, 349 U. S. 48, 51, we referred to “the generous review provisions” of that Act; and in that case as well as in others (see Rusk v. Cort, 369 U. S. 367, 379-380) we have construed that Act not grudgingly but as serving a broadly remedial purpose.

We read § 701 (a) as sympathetic to the issue presented in this case. As stated in the House Report:

“The statutes of Congress are not merely advisory when they relate to administrative agencies, any more than in other cases. To preclude judicial review under this bill a statute, if not specific in withholding such review, must upon its face give clear and convincing evidence of an intent to withhold it. The mere failure to provide specially by statute for judicial review is certainly no evidence of intent to withhold review.” H. R. Rep. No. 1980, 79th Cong., 2d Sess., 41.

There is no presumption against judicial review and in favor of administrative absolutism (see Abbott Laboratories v. Gardner, 387 U. S. 136, 140), unless that purpose is fairly discernible in the statutory scheme. Cf. Switchmen’s Union v. National Mediation Board, 320 U. S. 297.

We find no evidence that Congress in either the Bank Service Corporation Act or the National Bank Act sought to preclude judicial review of administrative rulings by the Comptroller as to the legitimate scope of activities available to national banks under those statutes. Both Acts are clearly “relevant” statutes within the meaning of § 702. The Acts do not in terms protect a specified group. But their general policy is apparent; and those whose interests are directly affected by a broad or narrow interpretation of the Acts are easily identifiable. It is clear that petitioners, as competitors of national banks which are engaging in data processing services, are within that class of “aggrieved” persons who, under § 702, are entitled to judicial review of “agency action.”

Whether anything in the Bank Service Corporation Act or the National Bank Act gives petitioners a “legal interest” that protects them against violations of those Acts, and whether the actions of respondents did in fact violate either of those Acts, are questions which go to the merits and remain to be decided below.

We hold that petitioners have standing to sue and that the case should be remanded for a hearing on the merits.

Reversed and remanded.

[For opinion of Mr. Justice Brennan, see post, p. 167.]

       The first two tests applied by the Court of Appeals required a showing of a “legal interest.” But the existence or non-existence of a “legal interest” is a matter quite distinct from the problem of standing. Barlow v. Collins, post, p. 159. The third test mentioned by the Court of Appeals, which rests on an explicit provision in a regulatory statute conferring standing and is commonly referred to in terms of allowing suits by “private attorneys general,” is inapplicable to the present case. See FCC v. Sanders Bros. Radio Station, 309 U. S. 470; Associated Industries v. Ickes, 134 F. 2d 694, vacated on suggestion of mootness, 320 U. S. 707.

       Petitioners allege that the Comptroller’s ruling violates the National Bank Act, Rev. Stat. § 5136, 12 U. S. C. § 24 Seventh, which provides that national banks have power to exercise “all such incidental powers as shall be necessary to carry on the business of banking.”
      We intimate no view, under the decisions rendered today here and in Barlow v. Collins, supra, on the issue of standing involved in No. 835, National Association of Securities Dealers v. SEC, and No. 843, Investment Company Institute v. Camp, now pending on petitions for writs of certiorari.