author: Mr. Chief Justice Warren Mr. Justice Harlan,

text:
    AMELL et al. v. UNITED STATES.
    No. 282.
    Argued January 24, 1966.
    Decided May 16, 1966.

      David Scribner argued the cause for petitioners. With him on the brief were Lee Pressman and Joan Stern Kiok.

      John C. Eldridge argued the cause for the United States. With him on the brief were Solicitor General Marshall, Assistant Attorney General Douglas and Alan S. Rosenthal.

    Briefs of amici curiae, urging reversal, were filed by Howard Schulman for the Maritime Trades Department of the AFL-CIO, and by Abraham E. Freedman for the National Maritime Union of America, AFL-CIO.
   Mr. Chief Justice Warren

delivered the opinion of the Court.

The case before us presents interesting problems of a jurisdictional nature. The Suits in Admiralty Act vests exclusive jurisdiction in the district courts when the suit is of a maritime nature. Under the Tucker Act, the Court of Claims has jurisdiction over contractual claims against the United States. This jurisdictional interaction presents itself here.

The petitioners are employees of various federal executive departments working aboard government vessels. They filed contractual actions in the Court of Claims, alleging they were entitled to back pay increases and overtime pay for their labors, invoking various federal pay statutes and regulations. In all these suits, the petitioners predicated jurisdiction on the Tucker Act, which has a generous six-year limitations period and provides a grace period as well, 28 U. S. C. § 2501 (1964 ed.). Their employer, the United States, filed motions to have the actions transferred to various federal district courts on the ground that the claims were of a maritime nature and justiciable exclusively under the Suits in Admiralty Act. This Act provides only two years for claimants to file suit, and also requires exhaustion of administrative remedies, 46 U. S. C. § 745 (1964 ed.). The Court of Claims granted the motions without opinion, simply citing to three unreported cases in which it had made similar dispositions. To uphold this transfer would bar those claims which accrued more than two years prior to the time the actions were filed. We granted certiorari, 382 U. S. 810, and reverse.

On its face, the Tucker Act permits all individuals with contractual claims against the Government to sue in the Court of Claims. The Suits in Admiralty Act similarly affords an open berth in the district courts, provided the claims are of a maritime nature. The question is which Act should be applicable to the claims brought here, and this in turn depends on whether these seafaring petitioners are more appropriately classified as federal workers or as mere seamen.

The Government takes the position that these employees are to be deprived of the liberal benefits of the longer limitations period available to all other government employees under the Tucker Act. This is so, the Government reasons, because for purposes of wage claims the petitioners’ status as seamen overrides their acknowledged role as federal workers. In assuming this posture, the Government seeks the best of both worlds. Congress is depicted as ambivalent in treating these petitioners either as seamen or as federal employees depending on which status may redound more to the benefit of the Government’s proprietary interest.

The Government acknowledges that the petitioners are governed by a patchwork pattern of federal statutes which encompass many facets of their economic welfare. With regard to so-called fringe benefits, pervasive government schemes provide for sick leave and vacation pay, and for death, health, medical and pension programs. The petitioners’ potential recovery for personal injuries is limited strictly by a workmen’s compensation statute governing them as federal workers to the exclusion of both the Public Vessels Act, Johansen v. United States, 343 U. S. 427, and the Suits in Admiralty Act, Patterson v. United States, 359 U. S. 495. By virtue of their governmental employment, the petitioners’ right to join unions and to select bargaining representatives, unlike that of private seamen, exists only by express leave of the President, Exec. Order No. 10988, 27 Fed. Reg. 551 (1962), and they are forbidden, under pain of discharge, fine and imprisonment, from exercising or asserting the right to strike, 69 Stat. 624, 5 U. S. C. §§ 118p-118r (1964 ed.).

When it comes to wage claims the Government treats the petitioners, to their detriment, as seamen. The workers, however, have their wages fixed by federal statutes and regulations, like other federal employees. It is true that their rates of pay are geared to the prevailing wage scale in private shipping operations, but this factor diminishes upon analysis. A host of federal workers, like these seamen, have their rates of pay so adjusted. The petitioners, then, are essentially no different from the civil servants who deliver the mail, fight forest fires, construct public buildings, or who engage in countless other tasks which affect virtually every phase of the country’s well-being. The wage scale of government-employed seamen is fixed by federal agencies; it is not automatically adjusted to the rate of pay prevalent in private industry, and in some cases the private pay rates are not easily ascertained. Further, these government employees — unlike normal seamen — benefit from wage pay increases won in the private industry only prospectively and to a limited degree. Often in the maritime industry, private contract negotiations continue beyond the terminal date set in a collective bargaining agreement. When the agreement is signed, however, it generally provides that the private seamen receive the increased pay retroactively. The government seamen receive pay increases only from the actual date agreement is reached in the private sector. Therefore, the back pay claims are more appropriately catalogued on the government side of the ledger, although they may have a salty tang.

This inference as to congressional intent is reinforced in considering the claims for overtime pay. Here there is a specific provision — Section 205 of the Federal Employees Pay Act of 1945 — which fixes the ratio of overtime pay to the employees’ basic pay. Congress has thus explicitly prescribed that overtime pay should be fixed in a uniform manner for all government wage-board employees, whether seamen or not. Furthermore, in determining the applicability of this uniform statutory requirement, the court will be interpreting the pay regulation of an executive department. This task is typically within the province and expertise of the Court of Claims.

We think the foregoing indicates that with respect to these wage claims, Congress thought of these petitioners more as government employees who happened to be seamen than as seamen who by chance worked for the Government. The remaining problems relate to specific legislative amendments. The Government approaches this by noting that the Suits in Admiralty Act specifically repealed the Tucker Act so far as the two conflicted. This may readily be conceded, see, e. g., Calmar S. S. Corp. v. United States, 345 U. S. 446, 455-456; Matson Navigation Co. v. United States, 284 U. S. 352. Compare Patterson v. United States, 359 U. S. 495. From this proposition it adduces the principle that exclusive admiralty jurisdiction is now so deeply woven in the fabric of the law that congressional action is required to overturn it, cf. State Bd. of Ins. v. Todd Shipyards, 370 U. S. 451, 458. This principle is sound where applicable, but such is not the case here.

The evolution of the law, both statutory and judicial, indicates that at least until 1960, the jurisdiction of the Court of Claims over government seamen’s wage claims was unchallenged.. We do not understand the Government to dispute this fact. For example, wage claims by federal employees were found to be expressly within the ambit of the Tucker Act in Bruner v. United States, 343 U. S. 112, 115. In United States v. Towsley, 323 U. S. 557, this Court affirmed a judgment against the Government for overtime wages in favor of a government-employed operator of a dredge. The Court of Claims had assumed jurisdiction over the suit, 101 Ct. Cl. 237, and the Government never disputed the issue. Subsequent cases are to the same effect. It was on this line of precedent that the petitioners relied in bringing suit. This fact is worthy of mention to illustrate the impact upon claimants whose suits would otherwise be time-barred if we were now to hold that the Suits in Admiralty Act restricted all suits in cases like the present to the district courts, cf. Brady v. Roosevelt S. S. Co., 317 U. S. 575, 581.

In 1960, Congress addressed itself to the jurisdictional overlap between the Tucker Act and the Suits in Admiralty Act. Its major aim was to empower the Court of Claims to transfer suits to the district courts when the latter had exclusive jurisdiction over them. This it accomplished by providing that when the transfer was made, the original filing in the Court of Claims would toll the applicable limitations period, Act of Sept. 13, 1960, Pub. L. 86-770, 74 Stat. 912, 28 U. S. C. § 1506. Simultaneously, Congress abolished the distinction between public and merchant vessels, a matter which had sorely confused attorneys and had caused misfilings in the past, S. Rep. No. 1894, 86th Cong., 2d Sess., pp. 3, 6. In amending the Suits in Admiralty Act, Congress also wanted to affirm the existing law that suits which were justiciable exclusively under it would be brought only in the district courts. The new § 2 of the Act, 46 U. S. C. § 742, in the words of the Senate Report, S. Rep. No. 1894, supra, at p. 2,

“restates in brief and simple language the now existing exclusive jurisdiction conferred on the district courts, both on their admiralty and law sides, over cases against the United States which could be sued on in admiralty if private vessels, persons, or property were involved.”

The Government would have us believe that this oblique reference to private “persons” was designed to make inroads on the right of government employees to sue in the Court of Claims. We reject this argument. The legislative history surrounding this enactment contains no discussion whatever concerning claims brought by government-employed seamen. This is highly significant because of the active interest in nautical legislation generally taken by the maritime labor unions. If Congress had meant to lower the limitations period from six to two years, surely these unions would have been privy to the decision; this is all the more true when one considers that seamen are often stationed far away from their home ports and need a lengthy period in which to register their claims. If they were governed by the maritime Act, they would be required not only to sue but to exhaust administrative remedies as well within the shorter period, 46 U. S. C. § 745 (1964 ed.).

In effect, the Government asks us to repeal the former practice by implication. We have held in numerous cases that such a request bears a heavy burden of persuasion, e. g., Bulova Watch Co. v. United States, 365 U. S. 753, 758; Fourco Glass Co. v. Transmirra Corp., 353 U. S. 222, 228-229. Further, Congress had the opportunity in 1964 to deprive government-employed claimants of their rights when it amended the Tucker Act itself. Instead, Congress broadened the forums available to plaintiffs suing the Government for fees, salary or compensation for official services, giving the district courts concurrent jurisdiction with the Court of Claims in matters of less than $10,000, 78 Stat. 699, 28 U. S. C. § 1346 (d) (1964 ed.).

As in other jurisdictional questions involving intersecting statutes, there is no positive answer. We can do no more than to exercise our best judgment in interpreting the will of Congress. In this instance, we believe the traditional treatment of federal employees by the Government tips the balance in favor of Court of Claims jurisdiction. The Court of Claims possesses the expertise necessary to adjudicate government wage claims. It also serves as a centralized forum for developing the law, particularly in large wage claim suits. These tasks have been its responsibility since 1887. In multi-party wage suits of large amounts, having one forum eliminates any problem of transferring venue from several district courts to one locale, see 28 U. S. C. § 1406 (1964 ed.). If we are here misconstruing the intent of Congress, it can easily set the matter to rest by explicit language. We therefore reverse and remand the suits to the Court of Claims for further proceedings.

It is so ordered.

Mr. Justice Harlan,

whom Mr. Justice Stewart joins,

dissenting.

In my opinion a course of legal history, reflecting both decisions of this Court and congressional enactments, precludes the interpretation that is now placed on the Suits in Admiralty Act, 41 Stat. 525, as amended, 46 U. S. C. § 741 et seq. (1964 ed.).

I.

The Suits in Admiralty Act was enacted in 1920 to deal with problems created by the formation of a large government-owned merchant fleet during World War I. The Act established a method to sue the United States in admiralty that would protect the interests of libellants while at the same time prevent in rem attachments of government vessels during a possible emergency. See S. Rep. No. 223, 66th Cong., 1st Sess. (1919); H. R. Rep. No. 497, 66th Cong., 2d Sess. (1919); 58 Cong. Rec. 7317 (1919); 59 Cong. Rec. 1684-1688 (1920). Although the creation of this statutory procedure for suits in admiralty was occasioned by particular needs, the early cases, discussed below, held unmistakably, first, that the Act provided the exclusive admiralty remedy against the United States, and, second, that it was exclusive of all other remedies affording relief for an underlying claim cognizable in admiralty.

The Suits in Admiralty Act provides the procedure for suits against the United States or a government-owned corporation “[i]n cases where if such vessel were privately owned or operated, or if such cargo were privately owned or possessed, or if a private person or property were involved, a proceeding in admiralty could be maintained . . . .” 46 U. S. C. § 742. A narrow construction of the statute was unanimously rejected in Eastern Transp. Co. v. United States, 272 U. S. 675, where the Court held that the Act made the Government amenable to any cause of action in admiralty, in rem or in per-sonam, to which a private owner would be liable. 272 U. S., at 690. This view was reiterated and reinforced in Fleet Corp. v. Rosenberg Bros., 276 U. S. 202. There the libellants sued the government-owned Fleet Corporation in admiralty. The cause was time-barred under the Suits in Admiralty Act, but the respondents argued that the remedy provided by the Act did not preclude a nonstatutory suit in admiralty against the public corporation. The Court held that the Act provided the exclusive admiralty remedy against the United States or its agencies. It left open, however, the question whether “the Act also prevents a resort to any concurrent remedies against the United States ... on like causes of action in the Court of Claims or in courts of law . . . .” 276 U. S., at 214.

This reservation was laid at rest in Johnson v. Fleet Corp., 280 U. S. 320. There four cases were consolidated: two involved seamen’s allegations of negligence; the third alleged breach of contract affecting cargo; the fourth alleged loss of cargo due to negligence. The suits were barred by the Suits in Admiralty statute of limitations, but it was argued that Tucker Act and common-law remedies were still available. The Court held squarely for the Government in spite of well-briefed arguments and some support from legislative history that the admiralty jurisdiction was not meant to be exclusive in such cases. Reviewing the structure of the Act and basic congressional intent, the Court stated that the Act’s purposes would not be served “if suits under the Tucker Act and in the Court of Claims be allowed against the United States and actions at law in state and federal courts be permitted against the Fleet Corporation or other agents for enforcement of the maritime causes of action covered by the Act.” 280 U. S., at 327. The Court concluded “that the remedies given by the Act are exclusive in all cases where a libel might be filed under it.” Ibid.

This interpretation of the Suits in Admiralty Act was subsequently recognized and ultimately adopted by the Congress, which on various occasions has amended the Act or passed supporting legislation premised on the exclusivity of the Act over all claims that might be heard in admiralty. Soon after the Johnson case, supra, was decided, the Congress acted to mitigate its effects on those who were barred by its two-year limitation. In an Act of June 30, 1932, 47 Stat. 420, § 5 of the Suits in Admiralty Act was amended to waive the two-year period for suitors who had filed timely actions elsewhere before the Johnson decision. In 1950, in order to eliminate any remaining confusion, § 5 was again amended to codify the Johnson rule as applied to government agents, namely, “[t]hat where a remedy is provided by . . . [the Suits in Admiralty Act] it shall hereafter be exclusive of any other action by reason of the same subject matter against the agent or employee of the United States . . . .” 64 Stat. 1112, 46 U. S. C. § 745 (1964 ed). See S. Rep. No. 2535, 81st Cong., 2d Sess. (1950), quoted in note 2, supra; H. R. Rep. No. 1292, 81st Cong., 1st Sess. (1949).

The statutes affecting the Court of Claims directly were also altered by Congress to conform with the basic structure of the exclusive admiralty jurisdiction. In 1948 the Tucker Act was amended to strike the word “admiralty” from the scope of that court’s jurisdiction. Act of June 25, 1948, c. 646, 62 Stat. 940, 28 U. S. C. § 1491 (1964 ed.). In 1960, an Act was passed to facilitate transfers of admiralty actions from the Court of Claims to the federal district courts and to toll the running of the statute of limitations in such cases so that litigants who sued, incorrectly, in the Court of Claims would not be required to file a new suit in the district court which might by then be time-barred. Act of September 13, 1960, 74 Stat. 912, 28 U. S. C. § 1506 (1964 ed.). Recognition of the exclusive admiralty jurisdiction of the district courts prompted enactment of this statute. See H. R. Rep. No. 523, 86th Cong., 1st Sess. (1959); S. Rep. No. 1894, 86th Cong., 2d Sess. (1960).

II.

This survey of case law and statutory development indicates quite clearly that the jurisdiction of the district courts is exclusive in actions falling within the purview of the Suits in Admiralty Act, and that the test for determining whether an action falls within that class is whether “a libel might be filed under [the Act],” Johnson v. Fleet Corp., supra, at 327, or in the words of the statute directly, whether “if such vessel were privately owned or operated ... a proceeding in admiralty could be maintained.” 46 U. S. C. § 742.

Until today the basic test for the Act’s applicability has been a familiar historical one, for the statutory term “proceeding in admiralty” is quite obviously coextensive with its meaning in ordinary legal usage. In the case now before us, the question for the Court is whether the claim for back wages by these seamen would be heard by an admiralty court if their employer were a private person. The answer is clearly in the affirmative, see Sheppard v. Taylor, 5 Pet. 675; Kossick v. United Fruit Co., 365 U. S. 731, 735. It is stated in 1 Benedict, The Law of American Admiralty 124 (6th ed. Knauth 1940): “The mariners of a ship are commonly said to be wards of the admiralty. Their wages, their rights, their wrongs and injuries have always been a special subject of the admiralty jurisdiction.” It is true that the claim against a private employer might also be litigated in a common-law court, see Leon v. Galceran, 11 Wall. 185; 1 Benedict, supra, at 35. But the fact that there is concurrent jurisdiction over such a claim in private litigation is irrelevant for purposes of a suit against the sovereign, for as shown above, the Suits in Admiralty Act is exclusive over any action which “could be maintained” in admiralty. This is indubitably such a claim.

III.

The Court, while recognizing “that the Suits in Admiralty Act specifically repealed the Tucker Act so far as the two conflicted,” ante, p. 163, avoids the result compelled by prior interpretation of the Suits in Admiralty Act and conventional admiralty law, by formulating a new test for the statute’s applicability. Instead of asking whether this suit is one traditionally within the scope of admiralty jurisdiction, it sees the interrelation of the Tucker Act and the Suits in Admiralty Act as requiring an inquiry into the question whether the petitioners are more like federal employees than like mariners, and after weighing the factors involved concludes that they are more civil servants than seafarers. I believe this test presents a false basis for determining whether or not exclusive jurisdiction lies in admiralty and puts a mischievous gloss on the relevant statutes.

Obviously these petitioners are both federal employees and seamen. One label refers to their employer; the other to the type of work they perform. This dual classification might well be made of the status of employees in many private industries. A large corporation might have thousands of employees, some of whom are employed in maritime activities. Because of the evolution of our legal system these maritime employees can sue their employer in an admiralty court as well as at law; their land-based co-workers do not have that option. The fact that the contracts, pension rights, and other benefits and obligations may be similar for both types of employees is irrelevant for purposes of defining the admiralty court’s jurisdiction over the claims of these maritime employees. Cf. The Steam-Boat Thomas Jefferson, 10 Wheat. 428; International Stevedoring Co. v. Haverty, 272 U. S. 50. The position of federal maritime employees should be no different. The argument of the Court showing that in many respects the rights of federal employees who are seamen are similar to the rights of federal employees who are not seamen, whatever its merits on its own terms, see Part IV, infra, does not negate the fact that the claims of these seamen are within the traditional scope of the admiralty jurisdiction. See McCrea v. United States, 294 U. S. 23, a claim for wages, inter alia, under the Suits in Admiralty Act.

Not only is the Court’s approach based upon a false yardstick, but it contrives an impracticable test for applying a jurisdictional statute. The rule heretofore used for the application of the Suits in Admiralty Act has been that, absent any clear statutory exception, it encompasses any claim that could have been brought before an admiralty court were the defendant a private shipper. Since the scope of the admiralty jurisdiction is long established and generally well understood, suitors would normally know in what forum their cases should be brought. The Court’s new test for determining the proper forum is whether the underlying cause of action is primarily of “a maritime nature.” As the Court’s opinion indicates, this inquiry can be resolved only after what in many instances will be a complicated and elusive process. Indeed, in this case, only after several pages of analysis is the Court able to determine that “with respect to these wage claims, Congress thought of these petitioners more as government employees who happened to be seamen than as seamen who by chance worked for the Government,” ante, p. 163. Putting aside the fact that there is nothing to show that Congress ever contemplated such a “jurisdictional” standard, replacing the straightforward “admiralty jurisdiction” test by the unpredictable “primarily of a maritime nature” rule is bound to introduce confusion and uncertainty into determinations of the appropriateness of a particular forum, the very type of question that should have a reasonably definitive answer.

IV.

The Court quite obviously construes the Act as it does because it is reluctant to deprive federally employed seamen of the longer statute of limitations available under the Tucker Act. Apart from anything else, this can be accomplished, however, only at the expense of forfeiting other substantial advantages available under the Suits in Admiralty Act.

First, an admiralty court is likely to be better acquainted with many underlying questions involved in suits such as these, and to be more sensitive to the tradition that seamen are the “wards of the admiralty.” For example, the Classification Act of 1949, 63 Stat. 954, as amended, 5 U. S. C. § 1082 (8) (1964 ed.), provides that federally employed crew members shall be compensated “as nearly as is consistent with the public interest in accordance with prevailing rates and practices in the maritime industry . . . .” One of the suits consolidated in this action raises the question of overtime payment for “port watch tours of duty,” and the petitioner, citing the Classification Act, alleges that “prevailing rates” in the trade require “16 hours at overtime rates per 24 hour port watch tour of duty.” Another complaint involves, inter alia, a naval rule regarding lunch periods where, due to the nature of the work, “it may not be administratively desirable to allow a specified period of time off for lunch.” Navy Civilian Personnel Instruction 610.2-lk. Questions involving such subject matter are best heard in admiralty.

Second, venue under the Tucker Act, for suits over $10,000 and all suits involving pension rights, is limited to the Court of Claims. 28 U. S: C. § 1346 (a), (d) (1964 ed.). Three of the four suits consolidated here are above the $10,000 limit, and thus can only be brought in the District of Columbia. Of these three cases, two involve naval facilities at Fort Lauderdale, Florida. The interests of most maritime employees of the United States would probably be better served by allowing the more favorable venue provisions in admiralty.

Third, interest provisions under the Suits in Admiralty Act are more favorable than under the Tucker Act. Under the latter statute interest runs at most from the date of judgment, 28 U. S. C. §§ 2411 (b), 2516 (1964 ed.), while in admiralty the court may award interest from the date the libel is filed. 46 U. S. C. §§ 743, 745 (1964 ed.). Greater court costs may also be awarded in admiralty. Compare 46 U. S. C. § 743 with 28 U. S. C. §2412 (b) (1964 ed.).

Because of the Court’s ruling today, all of these benefits are lost to all federally employed seamen, not merely to those involved in this case. The untoward results to which this decision leads in themselves engender the most serious misgivings as to the soundness of the Court’s ruling, albeit it may be thought to produce a beneficent result in this particular instance.

I would affirm the judgment of the Court of Claims.

       41 Stat. 525, as amended, 46 U. S. C. §§741-752 (1964 ed.).

       24 Stat. 505, as amended, 28 U. S. C. §§1346, 1491 (1964 ed.).

       Annual and Sick Leave Act of 1951, 65 Stat. 679, as amended, 5 U. S. C. §§2061-2066 (1964 ed.).

         Federal Employees’ Group Life Insurance Act of 1954, 68 Stat. 736, as amended, 5 U. S. C. §§2091-2103 (1964 ed.); Civil Service Retirement Act, 70 Stat. 743, as amended, 5 U. S. C. §§ 2251-2267 (1964 ed.); Federal Employees Health Benefits Act of 1959, 73 Stat. 708, 5 U. S. C. §§3001-3014 (1964 ed.).

       43 Stat. 1112, as amended, 46 U. S. C. §§781-790 (1964 ed.).

       Section 202 (8) of the Classification Act of 1949, 63 Stat. 954, as amended, 5 TJ. S. C. § 1082 (8) (1964 ed.), provides in substance that workers on vessels shall have their compensation fixed and adjusted by .federal agencies so far as consistent with the public interest in accordance with prevailing rates and practices in the maritime industry.

       In 1962, Congress enacted the Federal Salary Reform Act, making an explicit declaration of policy that federal salary fixing should be comparable to private enterprise salary rates for the same levels of work, Act of Oct. 11, 1962, Pub. L. 87-793, 76 Stat. 841, 5 U. S. C. §§1171-1174 (1964 ed.). Pursuant to congressional direction, the President issued an Executive Order, Exec. Order No. 11173, Aug. 20, 1964, 29 Fed. Reg. 11999, taking full cognizance of the congressional policy enunciated in the Federal Salary Reform Act of 1962. So far as determining the compensation for wage board employees, as are these petitioners, Congress has evinced a similar concern, Pub. L. 85-872, 72 Stat. 1696, 5 U. S. C. §§ 1181-1184 (1964 ed.). Thus, the whole trend in government compensation is to draw individuals into public service by providing salaries at least comparable to those they would earn on entering private industry.

       59 Stat. 295, 5 U. S. C. § 913 (1964 ed.), provides:
      “Employees whose basic rate of compensation is fixed on an annual or monthly basis and adjusted from time to time in accordance with prevailing rates by wage boards or similar administrative authority serving the same purpose shall be entitled to overtime-pay in accordance with the provisions of section 673c of this title. The rate of compensation for each hour of overtime employment of any such employee shall be computed as follows: . . . ."
      This provision, as does 5 U. S. C. § 673c (1964 ed.), gives government-employed seamen one and one-half times their basic pay for overtime pay.

       See, e. g., Hearne v. United States, 107 Ct. Cl. 335, 68 F. Supp. 786, cert. denied, 331 U. S. 858; Adams v. United States, 141 Ct. Cl. 133; Abbott v. United States, 144 Ct. Cl. 712, 169 F. Supp. 523. See also Continental Casualty Co. v. United States, 140 Ct. Cl. 500, 156 F. Supp. 942.

       As amended, 46 U. S. C. § 742 now provides in pertinent part:
      “In cases where if such vessel [owned by the United States] were privately owned or operated, or if such cargo were privately owned or possessed, or if a private person or property were involved, a proceeding in admiralty could be maintained, any appropriate non-jury proceeding in personam may be brought against the United States .... Such suits shall be brought in the district court of the United States for the district in which the parties so suing, or any of them, reside or have their principal place of business in the United States, or in which the vessel or cargo charged with liability is found. . . ."

       Legislative history bearing on this aspect of the question is meager, although one colloquy during the House Committee on the Judiciary hearings on this bill suggests that concurrent jurisdiction with the Court of Claims might have been contemplated in certain situations. Hearing before the House Committee on the Judiciary on the Attorney General’s Substitute for S. 3076 and H. R. 7124, 66th Cong., 1st Sess., ser. 8, at 48 (1919).

       Again in 1950 Congress extended the limitations period to accommodate those employees who, in reliance upon a prior decision, Hust v. Moore-McCormack Lines. 328 U. S. 707, overruled in Cosmopolitan Co. v. McAllister, 337 U. S. 783, had not filed suit against the United States under the Suits in Admiralty Act for a tort committed when a government-owned ship was being operated by a private company as general agent for the Government. 64 Stat. 1112, 46 U. S. C. §745 (1964 ed.). The Senate report noted that “[t]o prevent future repetition of such mistakes the bill expressly restates the existing law that the remedy by suit against the United States is exclusive of every other type of action by reason of the same subject matter against the United States or against its employees or agents.” S. Rep. No. 2535, 81st Cong., 2d Sess., 1 (1950).

       The House report noted: “the Court of Claims has no admiralty jurisdiction, but the Suits in Admiralty Act . . . vests exclusive jurisdiction over suits in admiralty against the United States in the district courts.” H. R. Rep. No. 308, 80th Cong., 1st Sess., App. p. 138 (1947).

       Compare Johansen v. United States, 343 U. S. 427, and Patterson v. United States, 359 U. S. 495, in which it was held that the Federal Employees’ Compensation Act of 1916, 39 Stat. 742, 5 U. S. C. §751 et seq. (1964 ed.), provided the sole remedy for seamen injured on board government-owned vessels, thus barring suits under the Suits in Admiralty Act.

       The Court’s argument that this factor is offset by the peculiar expertise of the Court of Claims with respect to the nonmaritime components of government seamen wage claims is not persuasive. District courts, too, possess such expertise, born of their concurrent jurisdiction with the Court of Claims in government contract actions involving less than $10,000. 28 U. S. C. § 1346 (a) (1964 ed.).

       46 U. S. C. § 742 provides that suits under the Suits in Admiralty Act “shall be brought in the district court of the United States for the district in which the parties so suing, or any of them, reside or have their principal place of business in the United States, or in which the vessel or cargo charged with liability is found.”


source: Caselaw Access Project

author: Mr. Justice Douglas Mr. Justice Harlan,

license: Public Domain

text:
    SECURITIES AND EXCHANGE COMMISSION v. NEW ENGLAND ELECTRIC SYSTEM et al.
    No. 636.
    Argued March 23, 1966.
    Decided May 16, 1966.

      Philip A. Loomis, Jr., argued the cause for petitioner. With him on the brief were Solicitor General Marshall, David Ferber and Solomon Freedman.

      John R. Quarles argued the cause for respondents. With him on the brief were Richard B. Dunn, Richard W. Southgate and John J. Glessner III.

   Mr. Justice Douglas

delivered the opinion of the Court.

New England Electric System (NEES) is a holding company registered under § 5 of the Public Utility Holding Company Act of 1935. Its holdings include both electric and gas utility properties. The electric companies serve retail customers in New Hampshire, Massachusetts, Rhode Island, and Connecticut. The gas companies serve retail customers in Massachusetts alone. The Commission, proceeding under § 11 of the Act, held that the electric utility subsidiaries of NEES constituted an “integrated electric utility system” as defined in § 2 (a)(29) (A). 38 S. E. C. 193. The question in this case does not concern these electric utility subsidiaries but only the gas utility subsidiaries of NEES, which both NEES and the Commission agree constitute an “integrated gas utility system” within the meaning of § 2 (a)(29)(B) of the Act.

By §11 (b)(1) a holding company system is to be limited in operations by the Commission “to a single integrated public-utility system,” provided, however, that it may be permitted to control one or more additional “integrated public-utility systems” if the Commission finds, inter alia, that “[e]ach of such additional systems cannot be operated as an independent system without the loss of substantial economies which can be secured by the retention of control by such holding company of such system.” § 11 (b)(1)(A). (Italics supplied.) It is on the meaning of this proviso that the present controversy depends. The Commission found that divestment of NEES’ gas utilities would not result in a “loss of substantial economies” to these companies within the meaning of § 11 (b) (1) (A). It construed Clause (A) to require a showing that the “additional system cannot be operated under separate ownership without the loss of economies so important as to cause a serious impairment of that system.” The Commission ruled that it was unable “to find that the gas companies could not be soundly and economically operated independently of NEES.” It found that any losses of economies would be offset by the benefits that would flow from the healthy competition between the independently controlled gas and electric companies, promotion of competition between gas utilities and electric utilities being an important purpose of the Act. Accordingly, it ordered that the gas utilities be divested.

On petition for review the Court of Appeals reversed on the ground that the Commission had misinterpreted the statutory phrase “loss of substantial economies.” 346 F. 2d 399. The court held that Clause (A) “called for a business judgment-of what would be a significant loss, not for a finding of total loss of economy or efficiency” (346 F. 2d, at 406), and, believing that on this record and with the statute so interpreted there could have been a finding in favor of NEES, remanded the case to the Commission. We granted certiorari, 382 U. S. 953.

We agree with the Commission’s reading of Clause (A) and remand the cause to the Court of Appeals so that there may be a review of the challenged order in light of the proper meaning of the statutory term.

The requirement in § 11 of a “single integrated” system is the “very heart” of the Act. The retention of an “additional” integrated system is decidedly the exception. As originally passed by the Senate, § 11 would have limited all registered holding companies to a single “geographically and economically integrated public-utility system.” The House version differed in that it permitted the Commission to make exceptions where limitation of the operations of the holding company was not found to be “in the public interest.” The version with which we deal emerged from a conference committee. The scope of the exception as it appears in the bill’s final form was thus explained to the House:

“Section 11 of both bills [i. e., the House and Senate versions], therefore, authorizes the Securities and Exchange Commission to require a holding company to limit its control over operating utility companies to one integrated public-utility system.
“The conference substitute meets the House desire to provide for further flexibility by the statement of additional definite and concrete circumstances under which exception should be made to the form of one integrated system. . . .
“The substitute, therefore, makes provision to meet the situation where a holding company can show a real economic need on the part of additional integrated systems for permitting the holding company to keep these additional systems . . . .” H. R. Rep. No. 1903, 74th Cong., 1st Sess., 70-71. (Italics supplied.)

Additional light is shed on the purpose of § 11 by the remarks of Senator Wheeler, a member of the conference committee:

“Since both bills accepted the proposition that a holding company should normally be limited to one integrated system, my colleagues and I conceived it to be our task to find what concrete exceptions, if any, could be made to this rule that would satisfy the demand of the House for some greater flexibility. After considerable discussion the Senate conferees concluded that the furthest concession they could make would be to permit the Commission to allow a holding company to control more than one integrated system if [among other tests] the additional systems were in the same region as the principal system and were so small that they were incapable of independent economical operation . . . .” 79 Cong. Rec. 14479. (Italics supplied.)

As the Commission said in 1948:

“The legislative'history of Section 11 (b)(1) indicates that it was the intent of Congress to create only a limited exception to the general rule confining holding companies to a single system, and that this exception was created to deal with the situation in which the proven inability of the additional system to stand by itself would result in substantial hardship to investors and consumers were its relationship with the holding company terminated.” Philadelphia Co., 28 S. E. C. 35, 46.

While the Commission has variously phrased the rule, it has consistently adhered to that view.

This suggests a much more stringent test than “a business judgment of what would be a significant loss,” to quote the Court of Appeals. 346 F. 2d, at 406. Promotion of “economy of management and operation” and “the integration and coordination of related operating properties” (§ 1 (b)(4), 49 Stat. 804, 15 U. S. C. § 79a (b)(4) (italics supplied)) is a theme that runs throughout the Act. But so does the theme of elimination of “restraint of free and independent competition.” § 1 (b) (2), 49 Stat. 803-804, 15 U. S. C. § 79a (b)(2). One of the evils that had resulted from control of utilities by holding companies was the retention in one system of both gas and electric properties and the favoring of one of these competing forms of energy over the other.

In the present case the Commission said on this phase of the controversy:

“Although the NEES Gas Division handles sales and promotional activities and various other matters for the gas subsidiaries separately from the electric companies, final authority on all important matters rests in the top NEES management. The basic competitive position that exists between gas and electric utility service within the same locality is affected by such vital management decisions as the amount of funds to be raised for or allocated to the expansion or promotion of each type of service.”

Competitive advantages to be gained by a separation are difficult to forecast. The gains to competition might well be in the public interest and might well offset the estimated loss in economies of operation resulting from a separation of the gas properties from the utility system. This is a matter for Commission expertise on the total competitive situation, not merely on a prediction whether, for example, a gas company in a holding company system may make more for investors than a gas company converted into an independent regime.

The phrase “without the loss of substantial economies” is admittedly not crystal clear. But the Commission’s construction seems to us to be well within the permissible range given to those who are charged with the task of giving an intricate statutory scheme practical sense and application. Power Reactor Co. v. Electricians, 367 U. S. 396, 408. And see Philadelphia Co. v. SEC, 177 F. 2d 720, 725.

Reversed and remanded.

Mr. Justice Harlan,

whom Mr. Justice Stewart joins,

dissenting.

The question before the Court is the meaning of the phrase “loss of substantial economies” as it appears in § 11 (b)(1) of the Public Utility Holding Company Act of 1935. The Court of Appeals ruled that the phrase “called for a business judgment of what would be a significant loss,” 346 F. 2d, at 406, and I agree with this rendering which is both sensible and, in my view, obvious. This Court’s opinion on the other hand seems to hold that the phrase demands a loss great enough to imperil “sound” corporate operations. That holding, as I shall indicate, is at odds with the Act’s wording, has little basis in legitimate statutory history or the aims of the Act, and cannot be sustained by agency or judicial precedent.

Inquiry naturally begins with the language of the Act, and with our reiterated principle that “the words of statutes . . . should be interpreted where possible in their ordinary, everyday senses.” Crane v. Commissioner, 331 U. S. 1, 6; Malat v. Riddell, 383 U. S. 569, 571. In this instance plainly the normal meaning of “substantial economies” is a significant amount of money and not that amount, whatever its size, which guarantees corporate survival. The first reading would be given by lawyers and laymen alike automatically while the second could hardly be imagined without the prompting of persuasive legislative evidence. If Congress had intended the Court’s test to govern, it qould easily have said so in shorter space and with far greater precision. In addition, the Court’s decision will apparently result in “substantial economies” being read its way in § 11 (b)(1) but in a quite different, more normal fashion where the same phrase appears in § 2 (a)(29)(B), defining an integrated gas utility system (see ante, n. 4, of the Court’s opinion). None of this is to say that the many subtle choices to be made in deciding what is a substantial sum in the present context are dictated by the terse language of the Act. See infra, n. 11. The choice here, however, is between two broad approaches, and the Act’s language invites the first and repels the second.

If the natural reading produced some strange or arbitrary result there might be reason to hesitate; but in this case the literal reading makes excellent sense in serving the very rational and desirable end of financial economy. The Congress that passed the Act had been importantly concerned with the “intensification of economic power beyond the point of proved economies . . . .” H. R. Doc. No. 137, 74th Cong., 1st Sess., 4; see §§ 1 (b)(4), (5) of the Act, 15 U. S. C. §§ 79a (b)(4), (5) (1964 ed.) (policy statement), and the Act itself bristles with provisions aimed largely at attaining efficient management and operations. See §§ 7 (d)(3), 10 (c)(2), 12 (d), (f), (g), 13, 15 U. S. C. §§79g (d)(3), 79j (c)(2), 791(d), (f), (g), 79m (1964 ed.). With this background, nothing could be more plausible than to curtail divestiture at the point where the prospect of substantial losses removed a prime reason for having divestiture at all. There are to be sure other dangers in proliferated growth besides disecon-omy, dangers which played their part in the passage of the Act, but there are also other clauses of § 11 (b)(1) whose conditions must be met before the exception is allowed (see supra, n. 1). In sum, it seems clear enough that the burden of persuasion rests upon those who would displace the Court of Appeals’ interpretation.

Legislative history and purpose, heavily relied on by the Court, furnish no reason for departing from the natural reading of the Act. There was very little direct explanation of the “substantial economies” provision in Congress; the majority opinion sets out in full the two important statements, one by the House Conference Committee (ante, pp. 180-181) and the other by Senator Wheeler (ante, p. 181). The Committee Report, highly authoritative but unilluminating, says merely that there must be “a real economic need” to justify retention of an additional system. Indisputably, substantial savings can be labeled a real economic need, the more so since Congress was sharply concerned with the lack of economic justification for many utility combinations. That the Committee’s language is also compatible with the SEC’s reading of “substantial economies” does no more than make that language a useless guidepost.

Senator Wheeler’s statement, by contrast, does support, if indeed it is not the source of, the SEC interpretation, and normally the view of a principal sponsor of an Act carries heavy weight. Here, however, Senator Wheeler made his remarks after the bill had finally passed both Houses, and quite arguably “[t]he views of individual members of the legislature as to the meaning of a statute which were not officially communicated to the legislature prior to its enactment are not competent to be considered in determining the meaning which ought to be attributed to the statute.” Hart & Sacks, The Legal Process 1285 (tent. ed. 1958, Harvard Univ.). Moreover, in this instance Senator Wheeler had been a fierce opponent of allowing any exception at all to the one-system principle, see 346 F. 2d, at 403, and had excellent reason to minimize severely the scope of the present provision when to do so could no longer cost the Act votes. The SEC itself in its early days, before the elevation of the Wheeler statement to its present exaggerated importance, took a far more guarded view of its worth.

To support its construction of the “substantial economies” provision, the Court also relies on two general policies attributed to the Act as a whole. It is initially emphasized that the Act’s overriding aim was to confine holding companies to a single integrated system while control of additional systems was to be “decidedly the exception” (ante, p. 180). The mild but misleading inference is that the “exception” is some minor, little noticed addendum, to be strictly construed. In truth, the original, more stringent version of § 11, popularly known as the “death sentence” provision, was bitterly opposed and the “ABC” clauses exception with Clause A of which we now deal (supra, n. 1) was adopted as a considered compromise between quite different House and Senate versions. See Ritchie, Integration of Public Utility Holding Companies 16-19, 151 (1954). The ABC clauses represent part of the price openly paid for enactment, and there is no basis in these events for a grudging interpretation.

Far more weight is given by the Court’s opinion to the Act’s supposed hostility toward common control of gas and electric utility systems with its danger of stifled competition. First of all, this hostility appears to be an illusion. The House and Senate Committees in identical language expressly stated that common ownership of competing forms of energy was “a field which is essentially a question of State policy”; the present § 8, 15 U. S. C. § 79h (1964 ed.), was enacted to support this approach by using federal power to limit common ownership only where it is contrary to state law. See S. Rep. No. 621, 74th Cong., 1st Sess., 29-30; H. R. Rep. No. 1318, 74th Cong., 1st Sess., 14-15. In its decision in this very case the SEC stated: “We do not take the view that the Act expresses a federal policy against combined gas and electric operations as such.” Holding Company Act Release No. 15035, p. 15. This was apparently so clear at the time the Act passed that in an early and now-repudiated decision the SEC went so far as to hold that gas and electric companies could be combined in the same single integrated public utility system. American Water Works & Elec. Co., 2 S. E. C. 972 (1937).

Furthermore, a constricted reading of the “substantial economies” provision is a quite unsuitable way of responding to the dangers in common ownership of competing types of utilities. The provision is equally intended to govern common control of two or more gas systems or two or more electric systems and, at least in the abstract, the Court’s reading will hinder those arrangements as well though its rationale is irrelevant to them. If the SEC is prepared to show that freeing a gas system from control by an electric system will improve earnings by some amount, then this may be a legitimate offset to the losses that can be shown, and there is leeway for rough calculations and for estimates based on studying past separations. See Ritchie, Integration of Public Utility Holding Companies 143-147 (1954). But to dispense with proof and disregard the basic test of “substantial economies” is to undo Congress’ own careful compromise of the various conflicting policy interests.

There remains to be answered only the Court’s claim that its reading of the statute is “supported by consistent administrative practice” (ante, p. 182, n. 12). Analysis of the SEC decisions shows that the Court is mistaken. The first important construction of “substantial economies” came in North American Co., 11 S. E. C. 194, decided in 1942 only seven years after the Act took effect. Rejecting the assertion that any saving beyond a wholly nominal one would do, the SEC stated: “The normal and usual meaning of the word ‘substantial’ is a meaning connoting ‘important.’ And we think that this normal and usual meaning is compelled here.” Id., at 209. At least four subsequent decisions cite North American and adopt its “importance” test, a natural reading of the Act rather than the unusual and specialized one adopted today. Cities Serv. Power & Light Co., 14 S. E. C. 28, 37 (1943); Middle West Corp., 15 S. E. C. 309, 319 (1944); Cities Serv. Co., 15 S. E. C. 962, 984 (1944); American Gas & Elec. Co., 21 S. E. C. 575, 597 (1945). Also during this first decade of the Act’s enforcement two decisions, including one just cited, said that inability to operate independently was “one of the guides which (among others) Congress intended to be used . . . .” Cities Serv. Power & Light Co., 14 S. E. C. 28, 62 (1943); Commonwealth & Southern Corp., 26 S. E. C. 464, 489 (1947). In one other case the SEC stated the loss must be one which would “seriously impair . . . effective operations.” Engineers Pub. Serv. Co., 12 S. E. C. 41, 61 (1942).

The majority opinion says that the respondent “concedes” that the Commission has since 1948 articulated its present test, and three SEC decisions are then cited (ante, p. 182, n. 12). But with the Engineers case just cited as a possible addition, these are the only three decisions until the present one to state the Court’s test out of the 15 or more decisions applying § 11 (b)(1), taking the ones already mentioned with those that established no test. Furthermore, the respondent asserts that the three SEC decisions stating its present test involved a very small percentage of the assets it has ordered divested, and even in those three cases it is not clear that the test was determinative. Brief, pp. 47-48. In sum, whether or not the SEC’s early decisions may be said actually to refute the test now urged, certainly there is no consistent administrative practice lending it any real weight. Before leaving precedent, it should also be noted that the First and Fifth Circuits have squarely rejected the SEC’s present interpretation and that the Second Circuit has approved its “importance” gloss, while only the District of Columbia Circuit has upheld the present reading.

To conclude, I think it should be noted that the Court’s departure from the statute is not just an abstract legal error but does immediate, tangible harm in a most practical sense. The annual losses which respondent has forecast for its gas system because of separation exceed $1,000,000, a figure the SEC has questioned in part but not yet properly considered. The respondent’s analysis also shows annual losses of $800,000 for the electrical system, although the SEC deems irrelevant losses to the primary system and the Court of Appeals did not reach this issue. The heavy losses in this case will presumably be borne by investors and consumers if the figures are accurate and separation occurs; it is noteworthy that the Massachusetts Department of Public Utilities appeared at the hearings in this case to oppose divestiture. The SEC has wide latitude in deciding how to gauge and compute “substantial economies” and it has used that freedom in the past. What the Commission has no right to do, however, is to substitute to the detriment of business interests and the public alike a quite different standard for the one enacted by Congress. Neither does this Court have that right. I would affirm the Court of Appeals’ well considered decision.

       49 Stat. 812, 15 U. S. C. §79e (1964 ed.).

       NEES, the electric companies, and the gas companies are all parties respondent and are hereafter referred to as respondent.

       49 Stat. 820, 15 U. S. C. § 79k (1964 ed.).

       49 Stat. 810, 15 U. S. C. § 79b (a) (29) (A) (1964 ed.). An “integrated public-utility system” as applied to electric utility companies is defined by § 2 (a) (29) (A) as “a system consisting of oiie or more units of generating plants and/or transmission lines and/or distributing facilities, whose utility assets, whether owned by one or more electric utility companies, are physically interconnected or capable of physical interconnection and which under normal conditions may be economically operated as a single interconnected and coordinated system confined in its operations to a single area or region, in one or more States, not so large as to impair (considering the state of the art and the area or region affected) the advantages of localized management, efficient operation, and the effectiveness of regulation.”

       49 Stat. 810, 15 U. S. C. § 79b (a) (29) (B) (1964 ed.). An "integrated public-utility system” as applied to gas utility companies is defined by § 2 (a) (29) (B) as “a system consisting of one or more gas utility companies which are so located and related that substantial economies may be effectuated by being operated as a single coordinated system confined in its operations to a single area or region, in one or more States, not so large as to impair (considering the state of the art and the area or region affected) the advantages of localized management, efficient operation, and the effectiveness of regulation.”

       49 Stat. 820, 15 U. S. C. § 79k (b)(1) (1964 ed.).

       The Commission has long held that a single “integrated public-utility system” cannot include both gas and electric properties. See Columbia Gas & Electric Corp., 8 S. E. C. 443, 462-463; The United Gas Improvement Co., 9 S. E. C. 52, 77-83; Philadelphia Co., 28 S. E. C. 35, 44. Respondent does not contest this aspect of the Commission’s reading of the Act.

        North American Co. v. SEC, 327 U. S. 686, 704, n. 14; S. Rep. No. 621, 74th Cong., 1st Sess., 11.

        North American Co. v. SEC, supra, at 696-697.

       S. 2796, § 11 (b), 74th Cong., 1st Sess. And see S. Rep. No. 621, 74th Cong., 1st Sess., 32.

       S. 2796, §11 (b), as passed by the House of Representatives, and sent to the Senate on July 9, 1935. And see H. R. Rep. No. 1318, 74th Cong., 1st Sess., 17.

       Respondent concedes that the Commission has, since 1948, “articulated” a test “like the present test.” See Philadelphia Co., 28 S. E. C. 35, 46-47, 53-74; General Public Utilities Corp., 32 S. E. C. 807, 814-815, 826-827, 831; Middle South Utilities, Inc., 35 S. E. C. 1, 11-13. Respondent contends, however, that previous decisions of the Commission applied a less restrictive standard of “substantial economies.” The Commission disagrees, urging that while there was “some variation in choice of words,” it has maintained a basically consistent position and that any semantic differences are due largely to “the varying contentions with which the Commission was dealing.” The cases referred to are North American Co., 11 S. E. C. 194, 208-213; Engineers Public Service Co., 12 S. E. C. 41; Cities Service Power & Light Co., 14 S. E. C. 28, 37; Middle West Corp., 15 S. E. C. 309, 319; Cities Service Co., 15 S. E. C. 962, 984; American Gas & Electric Co., 21 S. E. C. 575, 596-597. We do not read those eases as being inconsistent with the Commission’s position since 1948. In each of these cases the Commission found no showing of “substantial economies" under whatever test might be applied; thus it was not there compelled to go further. There are, to be sure, a few cases in which the Commission permitted retention of small additional systems on the ground that the requirements of §11 (b)(1) were met; in these, however, the Commission did not articulate any standard. See, e. g., Federal Light & Traction Co., 15 S. E. C. 675, 683; Republic Service Corp., 23 S. E. C. 436, 451. But cf. North American Co., 11 S. E. C. 194, 243-244.
      We cannot say that these early decisions show any clear inconsistency with the standard which the Commission today applies, and has applied since 1948. Under these circumstances, we feel justified in regarding the Commission’s reading of the statute as supported by consistent administrative practice.

       Section 1 (b) provides “. . . [I]t is hereby declared that the national public interest, the interest of investors in the securities of holding companies and their subsidiary companies and affiliates, and the interest of consumers of electric energy and natural and manufactured gas, are or may be adversely affected ... (2) when subsidiary public-utility companies are subjected to excessive charges for services, construction work, equipment, and materials, or .enter into transactions in which evils result from an absence of arm’s-length bargaining or from restraint of free and independent competition; . . .” (Italics supplied.)

       See S. Rep. No. 621, 74th Cong., 1st Sess., 29; Report of National Power Policy Committee, H. R. Doe. No. 137, 74th Cong., 1st Sess., 10 (Appendix to S. Rep. No. 621, 74th Cong., 1st Sess.).
      Congress was well aware of the anti-competitive potential of corporate structures through which control of gas and electric utility companies rests under the umbrella of a single holding company. That a holding company so situated might retard expansion of the gas utility company in favor of the electric utility company was expressly discussed in the Senate Hearings on an earlier version of the Act. See Hearings before the Senate Committee on Interstate Commerce on S. 1725, 74th Cong., 1st Sess., 783.
      Congress made specific provision in §8 of the Act to prohibit a registered holding company from acquiring an interest in both an electric and a gas utility serving the same territory in a State which prohibits common control, without first obtaining permission from the appropriate state regulatory agency. While § 8 reflects the concern of Congress with this aspect of competition (see S. Rep. No. 621, supra, at 29-30; Report of National Power Policy Committee, supra, at 10), there is no warrant for concluding that §8 was the exclusive legislative effort relating to the problem. The history of the Act reflects the presence of a sophisticated statutory scheme. To some extent, local policy was expected to govern, with § 8 serving to prevent circumvention of that policy by use of the "extra-State device of a holding company.” S. Rep. No. 621, supra, at 29-30. At the same time, § 11 was expected to assist in imposing restrictions with regard to the combination of gas and electricity in one system. . Discussing the interplay between § 8 and § 11, the Senate Committee noted that § 8 only applied to future acquisitions: “The committee felt that while the policy upon which this section was based was essential in the formulation of any Federal legislation on utility holding companies, it did not think that the section should make it unlawful to retain {up to the time that section 11 may require divestment) interests in businesses in which the companies were lawfully engaged on the date of the enactment of the title.” Id., at 7. (Italics supplied.)

       By fostering competition between gas and electric utility companies, the Act promotes what has been described as “variegated competition.” Hearings before the Subcommittee on Antitrust and Monopoly of the Senate Committee on the Judiciary, 89th Cong., 1st Sess., pt. 2, 840 (1965) (statement of Dr. Samuel M. Loescher). “But since the distribution of electricity, following geographical divorcements, was to remain a natural monopoly in every region, the only kind of competition to be enhanced was that of ‘variegated competition.’ ” Ibid.

       See, e. g., Hearings before House Committee on Interstate and Foreign Commerce on H. R. 5423, 74th Cong., 1st Sess., 1249, 1402-1403, 1530-1531, 2257-2277; Hearings before Senate Committee on Interstate Commerce on S. 1725, 74th Cong., 1st Sess., 65. It was only the loss of “substantial economies” that Congress thought would justify an exception from the separation rule of § 11.

       49 Stat. 820, 15 U. S. C. § 79k (b) (1). This subsection provides that a holding company shall be limited to “a single integrated public-utility system,” provided that the Commission shall permit control of additional systems if:
      “(A) Each of such additional systems cannot be operated as an independent system without the loss of substantial economies which can be secured by the retention of control by such holding company of such system;
      “(B) All of such additional systems are located in one State, or in adjoining States, or in a contiguous foreign country; and
      “(C) The continued combination of such systems under the control of such holding company is not so large (considering the state of the art and the area or region affected) as to impair the advantages of localized management, efficient operation, or the effectiveness of regulation.”

       I say “seems” to hold both because two statements in the opinion (ante, pp. 179, 184-185) emphasize a supposed offsetting economic saving to be found in divestiture and because the SEC has stated the test in this case in varying terms.

       This could in fact have been accomplished simply by chopping off the last half of the present, controlling clause {supra, n. 1), leaving the condition to read “[e]ach of such additional systems cannot be operated as an independent system” and omitting wholly the qualifying language which begins “without the loss of substantial economies.”

       “It . . . [is] wrong to deny the natural meaning of language its proper primacy; like Cardozo’s ‘Method of Philosophy,,’ it ‘is the heir presumptive. A pretender to the title will have to fight his way.’ ” Friendly, Mr. Justice Frankfurter and the Reading of Statutes, in Felix Frankfurter: The Judge 40 (1964).

       One other legislative comment on the provision favors the Commission, 79 Cong. Rec. 14165-14166 (remarks of Mr. Cooper), but the Court of Appeals properly disregarded it as an opponent’s attempt to blacken the Act, cf. Labor Board v. Fruit Packers, 377 U. S. 58, 66, and the SEC no longer relies upon it in its brief.

       The statement was quoted as cumulative, minor evidence on another matter in 1941, the SEC admitting that it “may not strictly be considered part of the legislative history” but saying it deserved “some consideration.” Engineers Pub. Serv. Co., 9 S. E. C. 764, 782-783. In 1942, it was quoted as bearing on the present question but its test was not adopted. North American Co., 11 S. E. C. 194, 209. The following year the statement was thought to reveal “one” of the various criteria to be used along with others. Cities Serv. Power & Light Co., 14 S. E. C. 28, 62.

       For its “decidedly the exception” characterization, the Court cites (ante, p. 180, n. 9) North American Co. v. SEC, 327 U. S. 686. That decision imparted no such gloss to the ABC clauses but gave a most cursorv summarv in passing on the constitutionality of §11 (b)(1).

       The Court’s opinion (ante, p. 184, n. 14) quotes from p. 7 of the above-cited Senate report, borrowing from it language that suggests § 11 was forwarding the same policy as § 8. What the Court overlooks is that this discussion was directed to an earlier and very different version of § 8, in which it also embodied other restrictions on holding company ownership having nothing to do with common control of gas and electricity but closely related to § ll’s policy of federally imposed simplification. A reading of the Court’s quotation in context along with the relevant version of S. 2796, 74th Cong., 1st Sess., §§ 8, 11 (as reported on May 13, 1935), will quickly show that its reliance is misplaced. The majority’s other citations in the same footnote are also infirm. The first two citations are statements on behalf of the rule that is now § 8, which allows the States to decide the issue. The remaining citation to the Senate Hearings does indeed reveal one Senator’s general concern with common ownership’s impact on competition; the respondent states it is “the only such reference in the entire Senate hearing.” Brief, p. 37, n. 45.

       It should again be remembered also that the present provision is not the only legislative safeguard. Even to obtain ownership over two systems, a holding company must, along with proving “substantial economies,” show that there is geographical unity and that the combination is not so large as to impair “the advantages of localized management, efficient operation, or the effectiveness of regulation” {supra, n. 1). Section 8 {supra, p. 190) acts as a further restraint in some cases. Other sections of the Act regulate transactions between utility companies and require disclosure of reports and maintenance of accounting data and other records. §§ 12(f), 13(a), 14, 15, 15 U. S. C. §§791 (f), 79m (a), 79n, 79o (1964 ed.).

       The Fifth Circuit case is Louisiana Pub. Serv. Comm’n v. SEC, 235 F. 2d 167. It was reversed here on jurisdictional grounds, 353 U. S. 368, which does not of course impair its statement on the merits. The Second Circuit decision is North American Co. v. SEC, 133 F. 2d 148, aff’d on constitutional questions, 327 U. S. 686. The District of Columbia decision is Philadelphia Co. v. SEC, 85 U. S. App. D. C. 327, 177 F. 2d 720; that court thought it was following its earlier two-to-one decision in Engineers Pub. Serv. Co. v. SEC, 78 U. S. App. D. C. 199, 138 F. 2d 936, cert. granted, 322 U. S. 723, vacated as moot, 332 U. S. 788, but Engineers is ambiguous.

       Among examples — and I do not mean to approve or disapprove the ones I cite — are SEC rulings that as noted it will not consider losses to the principal system, General Pub. Utils. Corp., 32 S. E. C. 807, 838-839 (1951); that it will not consider tax losses as a very significant factor, Cities Serv. Co., 15 S. E. C. 962, 985 (1944); that it will give only limited weight to capital costs of divestiture, Eastern Utils. Associates, 31 S. E. C. 329, 349 (1950); and that it will offset predicted gains resulting from separation against the losses, North American Co., 18 S. E. C. 611 (1945).


author: Mr. Justice Douglas

text:
    ASHTON v. KENTUCKY.
    No. 619.
    Argued April 28, 1966.
    Decided May 16, 1966.

      Ephraim London argued the cause for petitioner. With him on the brief were Dan Jack Combs and Melvin L. Wulf.

      John B. Browning, Assistant Attorney General of Kentucky, argued the cause for respondent. With him on the brief was Robert Matthews, Attorney General.
   Mr. Justice Douglas

delivered the opinion of the Court.

Petitioner was sentenced to six months in prison and fined $3,000 for printing a pamphlet found to be prohibited by the common law of criminal libel in Kentucky. The Kentucky Court of Appeals, with three judges dissenting, affirmed petitioner’s conviction. 405 S. W. 2d 562. We granted certiorari (382 U. S. 971) and reverse.

Petitioner went to Hazard, Kentucky, in 1963, where a bitter labor dispute raged, to appeal for food, clothing and aid for unemployed miners. The challenged pamphlet, which had a limited circulation, stated concerning Sam L. Luttrell, Chief of Police of Hazard:

“Six weeks ago I witnessed a plot to kill the one pro-strike city policeman on the Hazard Force. Three of the other cops were after him while he was on night-duty. It took 5 pickets guarding him all night long to keep him from getting killed, but they could not prevent him from being fired, which he was three weeks ago. Another note on the City Police: The Chief of the force, Bud Luttrell, has a job on the side of guarding an operator’s home for $100 a week. Its against the law for a peace officer to take private jobs.”

It said concerning Charles E. Combs, the Sheriff:

“The High Sheriff has hired 72 deputies at one time, more than ever before in history; most of them hired because they wanted to carry guns. He, Sheriff Combs, is also a mine operator — in a recent Court decision he was fined $5,000 for intentionally blinding a boy with tear-gas and beating him while he was locked in a jail cell with his hands cuffed. The boy lost the sight of one eye completely and is nearly blind in the other. Before the trial Sheriff Combs offered the boy $75,000 to keep it out of court, but he refused. Then for a few thousand dollars Combs probably bought off the jury. The case is being appealed by the boy to a higher court — he wants $200,000. Combs is now indicted for the murder of a man — voluntary manslaughter. Yet he is still the law in this county and has the support of the rich man because he will fight the pickets and the strike. The same is true of the State Police. They escort the scabs into the mines and hold the pickets at gunpoint.”

And it said respecting Mrs. W. P. Nolan, co-owner of the Hazard Herald:

“The town newspaper, the Hazard Herald, has hollered that 'the commies have come to the mountains of Kentucky’ and are leading the strike. The Herald was the recipient of over $14,000 cash and several truckloads of food and clothing which were sent as the result of a CBS-TV show just before Christmas. The story was on the strike and aid was supposed to be sent to the pickets in care of the Hazard Herald, however the editor, Mrs. W. P. Nolan, is vehemently against labor — she has said that she would rather give the incoming aid to the merchants in town than to the miners. Apparently that is what she has done, for only $1100 of the money has come to the pickets, and none of the food and clothes. They are now either still under lock and key, or have been given out to the scabs and others still.”

The indictment charged “the offense of criminal libel” committed “by publishing a false and malicious publication which tends to degrade or injure” the three named persons. The trial court charged that “criminal libel is defined as any writing calculated to create disturbances of the peace, corrupt the public morals, or lead to any act, which, when done, is indictable.”

The court also charged that malice is “an essential element of this offense” and falsity as well.

The Court of Appeals in affirming the judgment of conviction adopted a different definition of the offense of criminal libel from that given the jury by the trial court. It ruled that the element of breach of the peace was no longer a constitutional basis for imposing criminal liability. It held that the common-law crime of criminal libel in Kentucky is “the publication of a defamatory statement about another which is false, with malice.”

We indicated in Shuttlesworth v. Birmingham, 382 U. S. 87, that where an accused is tried and convicted under a broad construction of an Act which would make it unconstitutional, the conviction cannot be sustained on appeal by a limiting construction which eliminates the unconstitutional features of the Act, as the trial took place under the unconstitutional construction of the Act. We think that principle applies here. Petitioner was tried and convicted according to the trial court’s understanding of Kentucky law, which defined the offense as “any writing calculated to create disturbances of the peace . . . .”

We agree with the dissenters in the Court of Appeals who stated that: “. . . since the English common law of criminal libel is inconsistent with constitutional provisions, and since no Kentucky case has redefined the crime in understandable terms, and since the law must be made on a case to case basis, the elements of the crime are so indefinite and uncertain that it should not be enforced as a penal offense in Kentucky.”

The case is close to Cantwell v. Connecticut, 310 U. S. 296, involving a conviction of the common-law crime of inciting a breach of the peace. The accused was charged with having played in the hearing of Catholics in a public place a phonograph record attacking their religion and church. In reversing we said: “The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts but acts and words likely to produce violence in others. . . . Here we have a situation analogous to a conviction under a statute sweeping in a great variety of conduct under a general and indefinite characterization, and leaving to the executive and judicial branches too wide a discretion in its application.” Id., at 308.

In Terminiello v. Chicago, 337 U. S. 1, we held unconstitutional an ordinance which as construed punished an utterance as a breach of the peace “if it stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance.” Id., at 3. We set aside the conviction, saying:

“The vitality of civil and political institutions in our society depends on free discussion. As Chief Justice Hughes wrote in De Jonge v. Oregon, 299 U. S. 353, 365, it is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected. The right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes.
“Accordingly a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.” Id., at 4.

Convictions for “breach of the peace” where the offense was imprecisely defined were similarly reversed in Edwards v. South Carolina, 372 U. S. 229, 236-238, and Cox v. Louisiana, 379 U. S. 536, 551-552. These decisions recognize that to make an offense of conduct which is “calculated to create disturbances of the peace” leaves wide open the standard of responsibility. It involves calculations as to the boiling point of a particular person or a particular group, not an appraisal of the nature of the comments per se. This kind of criminal libel “makes a man a criminal simply because his neighbors have no self-control and cannot refrain from violence.” Chafee, Free Speech in the United States 151 (1954).

Here, as in the cases discussed above, we deal with First Amendment rights. Vague laws in any area suffer a constitutional infirmity. When First Amendment rights are involved, we look even more closely lest, under the guise of regulating conduct that is reachable by the police power, freedom of speech or of the press suffer. We said in Cantwell v. Connecticut, supra, that such a law must be “narrowly drawn to prevent the supposed evil,” 310 U. S., at 307, and that a conviction for an utterance “based on a common law concept of the most general and undefined nature,” id., at 308, could not stand.

All the infirmities of the conviction of the common-law crime of breach of the peace as defined by Connecticut judges are present in this conviction of the common-law crime of criminal libel as defined by Kentucky judges.

Reversed.

Mr. Justice Harlan concurs in the result.

        International Harvester Co. v. Kentucky, 234 U. S. 216; Collins v. Kentucky, 234 U. S. 634; United States v. Cohen Grocery Co., 255 U. S. 81; Connally v. General Construction Co., 269 U. S. 385; Cline v. Frink Dairy Co., 274 U. S. 445; Smith v. Cahoon, 283 U. S. 553; Champlin Refining Co. v. Commission, 286 U. S. 210; Lanzetta v. New Jersey, 306 U. S. 451; Wright v. Georgia, 373 U. S. 284; Giaccio v. Pennsylvania, 382 U. S. 399. Cf. Scull v. Virginia, 359 U. S. 344; Raley v. Ohio, 360 U. S. 423.

        Stromberg v. California, 283 U. S. 359; Herndon v. Lowry, 301 U. S. 242; Thornhill v. Alabama, 310 U. S. 88; Winters v. New York, 333 U. S. 507; Smith v. California, 361 U. S. 147; Cramp v. Board of Public Instruction, 368 U. S. 278; NAACP v. Button, 371 U. S. 415; Baggett v. Bullitt, 377 U. S. 360; Dombrowski v. Pfister, 380 U. S. 479.


author: Mr. Justice Harlan

text:
    PURE OIL CO. v. SUAREZ.
    No. 692.
    Argued April 19, 1966.
    Decided May 16, 1966.

      Eberhard P. Deutsch argued the cause for petitioner. With him on the briefs was René H. Himel, Jr.

      Arthur Roth argued the cause for respondent. With him on the brief were S. Eldridge Sampliner and Charlotte J. Roth.

   Mr. Justice Harlan

delivered the opinion of the Court.

Respondent Suarez is a seaman who was employed on the S. S. Pure Oil, owned and operated by petitioner, Pure Oil Company. Suarez brought this action against the company in the United States District Court for the Southern District of Florida to recover damages for personal injuries allegedly suffered in the course of his employment. He sued in negligence under the Jones Act, 41 Stat. 1007, 46 U. S. C. § 688 (1964 ed.), and alternatively on the theory that the vessel was unsea-worthy. The Pure Oil Company moved to transfer the case to the Northern District of Illinois on the ground that venue was improper in Florida. The District Court denied the motion, certifying the question of venue for interlocutory appeal to the Court of Appeals under 28 U. S. C. § 1292 (b) (1964 ed.). That court affirmed the ruling of the District Court, 346 F. 2d 890. Certiorari was granted, 382 U. S. 972, in order to determine whether the decision below is inconsistent with this Court’s decision in Fourco Glass Co. v. Transmirra Prods. Corp., 353 U. S. 222, and to resolve a conflict among the circuits on that score. We do not find the Fourco case controlling, and affirm the judgment of the Court of Appeals.

The Jones Act, which ultimately governs the venue issue before us, contains the following provision:

“Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.” 46 U. S. C. § 688.

Preliminarily it should be noted that although this provision is framed in jurisdictional terms, the Court has held that it refers only to venue, Panama R. Co. v. Johnson, 264 U. S. 375. It is conceded that as enacted and originally interpreted the statute would not authorize Florida venue in this instance, for corporate residence traditionally meant place of incorporation, in this case Ohio, and Pure Oil’s principal office is in Illinois. The Court of Appeals held, however, that residence had been redefined by the expanded general venue statute, 28 U. S. C. § 1391 (c) (1964 ed.), passed in 1948. That statute provides:

“A corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes.” (Emphasis added.)

If this definition of residence is applicable to the Jones Act venue provision, it is conceded that the action was properly brought in Florida, where Pure Oil has transacted a substantial amount of business. We hold that this definition does so apply and that venue in Florida was proper.

The effect of § 1391 (c) was to broaden the general venue requirements in actions against corporations by providing a forum in any judicial district in which the corporate defendant “is doing business.” See Moore, Commentary on the Judicial Code 193-194 (1949); 1 Barron & Holtzoff, Federal Practice and Procedure § 80, at 386 (Wright rev. 1960). It seems manifest that this change was made in order to bring venue law in tune with modern concepts of corporate operations. The question here involves the reach of these changes. The redefinition of corporate residence clearly touches the general diversity and federal-question venue provisions of §§1391 (a) and (b). Although there is no elucidation from statutory history as to the intended effect of § 1391 (c) on special venue provisions, the liberalizing purpose underlying its enactment and the generality of its language support the view that it applies to all venue statutes using residence as a criterion, at least in the absence of contrary restrictive indications in any such statute.

This view of § 1391 (c) is basically consistent with the purposes and language of the Jones Act, whose thrust was not primarily directed at venue, but rather at giving seamen substantive rights and a federal forum for their vindication. In so doing, it provided a more generous choice of forum than would have been available at that time under the general venue statute. Compare Act of March 3, 1911, c. 231, §§ 50, 51, 36 Stat. 1101. Though one aspect of the special venue provision was phrased in terms of “residence,” which as applied to a corporate employer was then generally understood to mean the place of incorporation, see In re Keasbey & Mattison Co., 160 U. S. 221, 229, the statute also permitted suit in the district where the principal office of the employer was located. See p. 203, supra. Moreover, there is nothing in the legislative history of this provision of the Jones Act to indicate that its framers meant to use “residence” as anything more than a referent to more general doctrines of venue rules, which might alter in the future.

The sole authority that might be thought to stand in the way of reading the Jones Act to embrace the residence definition of § 1391 (c) is Fourco Glass Co. v. Transmirra Prods. Corp., 353 U. S. 222. A consideration of the setting in which that decision was made reveals that it must be taken as limited to the particular question of statutory construction presented there. Fourco concerned the interrelation of § 1391 (c) and the special venue provision governing patent infringement suits, 28 U. S. C. § 1400 (b) (1964 ed.). The Court held that the new definition of residence in § 1391 (c) was not carried over into §1400 (b). This holding, however, was based on factors inapplicable to the case before us today.

First, the patent venue section at issue in Fourco was itself revised in 1948 in the same Act that contained § 1391 (c). Fourco did not directly concern itself with the scope of § 1391 (c). Rather, the Court inquired into the evidence revealing congressional purpose with respect to changes in § 1400 (b), and concluded that Congress wished it to remain in substance precisely as it had been before the revision. This legislative background of § 1400 (b) is of no relevance of course to a determination of the effect of § 1391 (c) on the Jones Act, for the latter’s venue provision was not re-enacted contemporaneously with § 1391 (c). Thus, there is nothing to show a congressional purpose negativing the more natural reading of the two venue sections together.

Second, the decision in Fourco relied heavily on the revisers’ purpose to maintain § 1400 (b) as it had been interpreted in Stonite Prods. Co. v. Melvin Lloyd Co., 315 U. S. 561. In Stonite this Court recognized that there were particular reasons why Congress had passed the predecessor of § 1400 (b). Confusion had been engendered by judicial decisions holding that patent in-fringers could be sued wherever they might be found, even though a newly enacted general venue statute of 1887 provided more limited venue. See 315 U. S., at 563-565. The patent infringement venue statute was enacted in 1897, 29 Stat. 695, specifically to narrow venue in such suits. This Court in Fourco, after determining that the 1948 revision of § 1400 (b) was meant to introduce no substantive change in the provision, was merely following the purpose and letter of the original enactment.

The Jones Act venue provision presents quite a different history. As a minor provision in a major substantive enactment, no particular attention was directed to its terms; indeed, the venue provision was first presented in the report of the House-Senate Conference Committee, see H. R. Rep. No. 1107, 66th Cong., 2d Sess., 19-20 (1920), and was apparently never discussed in committee reports or on the floor of either House. Thus, it is unlikely that the Congress meant to infuse the concept of corporate residence with any special meaning that should remain impervious to changes in standards effected by more general venue statutes. Moreover, it can be said with reasonable certainty that the provision was intended to liberalize venue, see supra, p. 205, unlike the patent infringement rule which was meant to constrict it. We conclude that here, in contrast to the situation dealt with in Fourco, the basic intent of the Congress is best furthered by carrying the broader residence definition of § 1391 (c) into the Jones Act.

Affirmed.

       Compare the Third Circuit’s decision in Leith v. Oil Transport Co., 321 F. 2d 591, with the Fourth Circuit’s decision in Fanning v. United Fruit Co., 355 F. 2d 147, which followed the Fifth Circuit’s decision in the present case.

       The Court of Appeals stated that the Jones Act venue provision must be met if, as here, an action is based on both unseaworthiness and the Jones Act, 346 F. 2d, at 891. Because of our disposition of the case we find no occasion to pass upon this issue, which was not raised in this Court.

       As the Court of Appeals stated in Transmirra Prods. Corp. v. Fourco Glass Co., 233 F. 2d 885, 887, “The rationale of this sharp break with ancient formulae is quite obviously a response to a general conviction that it was ‘intolerable if the traditional concepts of “residence” and “presence” kept a corporation from being sued wherever it was creating liabilities.’ ” Although this Court reversed in Fourco, supra, for reasons discussed later (infra, pp. 206-207), the validity of this general observation was in no way questioned.

       Section 688 was enacted as § 33 of the Merchant Marine Act, 1920, 41 Stat. 1007. The Act was primarily concerned with the creation and maintenance of a national merchant marine fleet. The substantive part of § 33, dealing with seamen’s relief, was introduced in the Senate as an amendment to the House bill, and was passed without discussion. 59 Cong. Rec. 7044 (1920). The venue provision was added by the House-Senate Conference Committee, see H. R. Rep. No. 1107, 66th Cong., 2d Sess., 19-20 (1920).

       We do not think these conclusions are vitiated by the fact that application of the wider residence definition of § 1391 (c) to the Jones Act makes the alternative “principal office” venue provision of the latter statute superfluous as regards corporate employers. That provision continues to serve its original purpose when the defendant employer is not a corporation. Nor does the § 1391 (c) provision come into conflict with “principal office,” unless that provision is deemed to have been restrictive in its origins, a proposition for which no support can be found.

       It reads: “Any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.”


author: Per Curiam.

text:
    BARRIOS et al. v. FLORIDA.
    No. 722.
    Decided May 16, 1966.

      Leonard B. Boudin, Victor Rabinowitz, Tobias Simon and Michael B. Standard for appellants.

      Earl Faircloth, Attorney General of Florida, and Edward D. Coioart, Assistant Attorney General, for appellee.

      Solicitor General Marshall filed a memorandum for the United States, as amicus curiae.

   Per Curiam.

The appeal is dismissed.

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


text:
    WINTERS v. WASHINGTON.
    No. 1143.
    Decided May 16, 1966.

      George R. Mosier for appellant.
   Per Curiam.

The appeal is dismissed for want of a substantial federal question.


text:
    SIMMONS et al. v. SEELATSEE, CHAIRMAN OF THE YAKIMA TRIBAL COUNCIL, et al.
    No. 1112.
    Decided May 16, 1966.

      L. Frederick Paul for appellants.

      James B. Hovis for appellees Seelatsee et al. Solicitor General Marshall, Assistant Attorney General Weisl and Roger P. Marquis for the United States.
   Per Curiam.

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


text:
    IZZO v. EYMAN, WARDEN.
    No. 869,
    Misc.
    Decided May 16, 1966.
    Petitioner pro se.

      Darrell F. Smith, Attorney General of Arizona, and James S. Tegart, 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 of the Supreme Court of Arizona is reversed. Jackson v. Denno, 378 U. S. 368.


text:
    TOOMBS et al. v. FORTSON, SECRETARY OF STATE OF GEORGIA, et al.
    No. 1205.
    Decided May 16, 1966.

      Francis Shackelford, Edward S. White, Emmet J. Bondumnt II, Israel Katz and Hamilton Lokey for appellants.

      Arthur K. Bolton, Attorney General of Georgia, and E. Freeman Leverett, Assistant Attorney General, for appellees.
   Per Curiam.

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


text:
    SELMAN v. PHILLIPS et al.
    No. 854,
    Misc.
    Decided May 16, 1966.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment of the Supreme Court of Alaska is vacated and the case is remanded to that court for further consideration in light of Armstrong v. Manzo, 380 U. S. 545.


text:
    HANSON et al. v. CHESAPEAKE & OHIO RAILWAY COMPANY.
    No. 1170.
    Decided May 16, 1966.

      Robert O. Ellis, Jr., for petitioners.

      William, C. Beatty and Amos A. Bolen for respondent.
   Per Curiam.

The petition for a writ of certiorari is granted. The judgment of the United States Court of Appeals for the Fourth Circuit is vacated and the case is remanded to that court for further consideration in light of Gunther v. San Diego & A. E. R. Co., 382 U. S. 257.


text:
    HASPEL v. STATE BOARD OF EDUCATION et al.
    No. 1352,
    Misc.
    Decided May 16, 1966.
   Per Curiam.

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


text:
    UNITED STATES v. FISHER.
    No. 700.
    Decided May 16, 1966.

      Solicitor General Marshall, Assistant Attorney General Vinson, Beatrice Rosenberg and Ronald L. Gainer for the United States.

      Joseph H. Stamler for appellee.
   Per Curiam.

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

Mr. Justice Harlan would set the case for argument, postponing consideration of jurisdiction to the hearing of the case on the merits.


text:
    ILLINOIS ex rel. MUSSO, MADISON COUNTY TREASURER v. CHICAGO, BURLINGTON & QUINCY RAILROAD CO. et al.
    No. 1046.
    Decided May 16, 1966.

      Burton C. Bernard for appellant.

      Hugh J. Dobbs, John F. Schlafly, Louis F. Gillespie, Gordon Burroughs, Eldon Martin, Jordan Jay Hillman and Robert L. Broderick for appellees.
    Briefs of amici curiae, in support of appellant, were filed by Simon L. Friedman and William M. G'iffin for the Illinois Association of School Boards et al., and by William M. Giffin for Sangamon County, Illinois.
   Per Curiam.

The motion of the Illinois Association of School Boards et al., for leave to file a brief, as amici curiae, is granted.

The motion of Sangamon County, Illinois, for leave to file a brief, as amicus curiae, is granted.

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