author: Mr. Justice Brennan Mb. Justice Stewart,

text:
    UNITED STATES v. SECKINGER, trading as M. O. SECKINGER CO.
    No. 395.
    Argued January 14, 1970
    Decided March 9, 1970

      James van R. Springer argued the cause for the United States. On the brief were Solicitor General Griswold, Assistant Attorney General Ruckelshaus, Peter L. Strauss, and Robert V. Zener.

      John G. Kennedy argued the cause for respondent. With him on the brief was Frank S. Cheatham, Jr.

   Mr. Justice Brennan

delivered the opinion of the Court.

This case concerns the construction of a provision common to fixed-price government construction contracts that states that the private contractor “shall be responsible for all damages to persons or property that occur as a result of his fault or negligence . . . .” The Court of Appeals for the Fifth Circuit held that the provision could not be construed to allow the Government to recover from the contractor damages suffered by the Government on account of its own negligence. 408 F. 2d 146 (1969). We granted certiorari because of the large amount of litigation that this contract clause has produced and because of the divergent results that the lower courts have reached in construing the same or similar provisions. 396 U. S. 815 (1969). We reverse.

I

The United States had entered into a contract with the Seckinger Company for the performance of certain plumbing work at a United States Marine base in South Carolina. While working on this project, one of Seck-inger’s employees was directed by his foreman to assist a fellow employee on a particular section of pipe that had been partially constructed above a street. About four or five feet above the place where the employee was working, there was an electric wire that carried 2,400 volts of electricity. The employee accidentally came into contact with the wire, was thrown to the ground 18 feet below, and was seriously injured.

The injured employee recovered benefits under South Carolina's workmen's compensation law, S. C. Code Ann. §§ 72-1 to 72-504 (1962), and then commenced a suit in the Eastern District of South Carolina against the United States under the Federal Tort Claims Act, 28 U. S. C. §§ 2671-2680, on the theory that his injuries had been sustained as the proximate result of the Government’s negligence. The United States, relying on the contract clause, moved to implead Seckinger as a third-party defendant. This motion was denied on the ground that the addition of Seckinger would “unnecessarily and improperly complicate the issues.”

On the merits, the South Carolina District Court found that the United States had customarily de-ener-gized its electric wires whenever Seckinger employees were required to work dangerously near them. The court therefore held that the United States had been grossly negligent in failing to de-energize the wire in this particular case. Alternatively, the Government was held to have been negligent in failing to advise Seckinger’s employees that the electric wire had not been de-energized. Concluding also that the employee had in no way contributed to his injury, the District Judge ordered that he recover a judgment against the United States in the amount of $45,000 plus costs. No appeal was taken from this judgment of the District Court.

Thereafter, the United States proceeded to the District Court for the Southern District of Georgia and commenced the instant suit against Seckinger. The complaint alleged that Seckinger’s negligence was solely responsible for its employee’s injuries and that therefore the United States should be fully indemnified for the judgment which it had satisfied. In a second count, the Government alleged that Seckinger, having undertaken to perform its contract with the United States, was obligated “to perform the work properly and safely and to provide workmanlike service in the performance of said work.”

The District Court granted Seckinger’s motion to dismiss the complaint on the alternative grounds, first, that the suit was barred by the prior litigation in South Carolina and, second, that the contractual language was not sufficiently broad to permit the Government to recover indemnification for its own negligence. The Court of Appeals rejected the first ground of decision, but sustained the holding that any recovery on the contract was foreclosed to the United States because its negligence had contributed substantially to the injury. The Court of Appeals held that, under the “majority rule,” an indemnitee cannot recover for his own negligence in the absence of a contractual provision which unmistakably authorizes this result. Since the contract here did not unequivocally command that the Government be indemnified for its own negligence, and because the injuries in question were thought to have been caused by the “active direct negligence” of the Government with no more than a “slight dereliction” on the part of Seck-inger, no recovery whatsoever on the contract would be permitted to the United States.

In the Government's view, this construction of the clause renders it a nullity, for the United States can never be held liable in tort under the Tort Claims Act or otherwise in the absence, of negligence on the part of its agents. Thus, so the argument goes, the contractual provision in question can have meaning only in a context in which both the United States and the contractor are jointly negligent. In that circumstance, the contractor would be obligated to sustain the full burden of ultimate liability for the injuries produced. Alternatively, the Government suggests that it is entitled to indemnity on a comparative basis to the extent that the negligence of Seckinger contributed to its employee’s injuries.

II

In the posture in which this case reaches us, the historical background of the clause and evidence concerning the actual intention of these particular parties with respect to that provision are sparsely presented. We do know that the clause was required in government fixed-price construction contracts as early as 1938. This fact merely precipitates confusion, however, because it was not until the passage of the Tort Claims Act in 1946, §§ 401-424, 60 Stat. 842, as amended, 28 U. S. C. §§ 2671-2680, that the United States permitted recovery in tort against itself for the negligent acts of its agents. Viewed in the pre-Tort Claims Act context, the purpose of the clause is totally unclear except, perhaps, as an exercise in caution on the part of the government draftsmen, or, conceivably, as an attempt to insulate government agents from liability in their private capacities if their negligence arguably combined with that of the contractor to produce a given injury.

In American Stevedores, Inc. v. Porello, 330 U. S. 446 (1947), we had before us a contractual provision that was similar to that involved here. There we noted that the clause was susceptible of several different constructions, 330 U. S., at 457-458, and remanded the case to the District Court to ascertain the intention of the parties with respect to the clause. It does not appear that a similar course of action would be fruitful in the instant case. In Porello there were clear indications from the parties that further evidentiary proceedings in the District Court would shed light on the actual intention of the parties. Here, by contrast, there is not only no representation that further proceedings would aid in clarifying the intentions of the parties, but there is at least tacit agreement that the background of the clause has been explored as thoroughly as possible. In these circumstances, we have no alternative but to proceed directly to the contractual construction problem.

Ill

Preliminarily, we agree with the Court of Appeals that federal law controls the interpretation of the contract. See United States v. County of Allegheny, 322 U. S. 174, 183 (1944); Clearfield Trust Co. v. United States, 318 U. S. 363 (1943). This conclusion results from the fact that the contract was entered into pursuant to authority conferred by federal statute and, ultimately, by the Constitution.

In fashioning a federal rule we are, of course, guided by the general principles that have evolved concerning the interpretation of contractual provisions such as that involved here. Among these principles is the general maxim that a contract should be construed most strongly against the drafter, which in this case was the United States. The Government seeks to circumvent this principle by arguing that it is inapplicable unless there is ambiguity in the contractual provisions in dispute and there exists an alternative interpretation that is, “under all the circumstances, a reasonable and practical one.” Gelco Builders & Burjay Const. Co. v. United States, 177 Ct. Cl. 1025, 1035, 369 F. 2d 992, 999-1000 (1966). The Government itself, however, has proffered two mutually inconsistent interpretations of the contract clause. To be sure, one of them is pressed with considerably more enthusiasm than the other. The Government, nevertheless, must be taken implicitly to have conceded (a) that the clause is not without ambiguity and (b) that there is an alternative construction of the clause that is both “reasonable and practical.” Even in the Government’s view of the matter, therefore, there is necessarily room for the construction-against-drafter principle to operate.

More specifically, we agree with the Court of Appeals that a contractual provision should not be construed to permit an indemnitee to recover for his own negligence unless the court is firmly convinced that such an interpretation reflects the intention of the parties. This principle, though variously articulated, is accepted with virtual unanimity among American jurisdictions. The traditional reluctance of courts to cast the burden of negligent actions upon those who were not actually at fault is particularly applicable to a situation in which there is a vast disparity in bargaining power and economic resources between the parties, such as exists between the United States and particular government contractors. See United States v. Haskin, 395 F. 2d 503, 508 (C. A. 10th Cir. 1968).

In short, if the United States expects to shift the ultimate responsibility for its negligence to its various contractors, the mutual intention of the parties to this effect should appear with clarity from the face of the contract. We can hardly say that this intention is manifested by the formulation incorporated into the present contract. By its terms Seckinger is clearly liable for its negligence, but the contractual language cannot readily be stretched to encompass the Government’s negligence as well.

On the other hand, we must not fail to accord appropriate consideration to Seckinger’s clear liability under the contract for “all damages” that resulted from its “fault or negligence.” (Emphasis added.) The view adopted by the Court of Appeals, and now urged by Seckinger, would drain this clause of any significant meaning or protection for the Government, and, indeed, would tend to insulate Seckinger from potential liability in any circumstance in which any negligence is also attributable to the United States. Whatever may have been the actual intention of the parties with respect to the meaning of the clause, it is extremely difficult to believe that they sought to utilize this contractual provision to reduce Seckinger’s potential liability under common law or statutory rules of contribution or indemnity. Yet, that is arguably the result if the clause is interpreted to mean that Seckinger’s liability is limited to situations in which it, as opposed to the United States, is the sole negligent party.

Furthermore, in this latter situation, it is perfectly clear that, both before and after the passage of the Tort Claims Act, the United States could not, in any event, be charged with liability in the absence of negligence on its part. In short, the construction of the clause adopted by the Court of Appeals tends to narrow Seckinger’s potential liability and, also, limits its application to circumstances in which no doubt concerning Seckinger’s sole liability existed. In the process, considerable violence is done to the plain language of the contract that Seckinger be responsible for all damages resulting from its negligence.

A synthesis of all of the foregoing considerations leads to the conclusion that the most reasonable construction of the clause is the alternative suggestion of the Government, that is, that liability be premised on the basis of comparative negligence. In the first place, this interpretation is consistent with the plain language of the clause, for Seckinger will be required to indemnify the United States to the full extent that its negligence, if any, contributed to the injuries to the employee.

Secondly, the principle that indemnification for the indemnitee’s own negligence must be clearly and unequivocally indicated as the intention of the parties is preserved intact. In no event will Seckinger be required to indemnify the United States to the extent that the injuries were attributable to the negligence, if any, of the United States. In short, Seckinger will be responsible for the damages caused by its negligence; similarly, responsibility will fall upon the United States to the extent that it was negligent.

Finally, our interpretation adheres to the principle that, as between two reasonable and practical constructions of an ambiguous contractual provision, such as the two proffered by the Government, the provision should be construed less favorably to that party which selected the contractual language. This principle is appropriately accorded considerable emphasis in this case because of the Government’s vast economic resources and stronger bargaining position in contract negotiations.

For these reasons, we reverse the judgment of the Court of Appeals and remand this case to the District Court for further proceedings consistent with this opinion.

Reversed and remanded.

Mb. Justice Marshall took no part in the consideration or decision of this case.

Mb. Justice Stewart,

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

dissenting.

The standard form that the Government uses for its fixed-price construction contracts has long contained a single sentence saying that the contractor “shall be responsible for all damages to persons or property that occur as a result of his fault or negligence in connection with the prosecution of the work.” For more than 30 years it has evidently been understood that these words mean what they rather clearly say — that the contractor cannot hold the Government for losses he incurs resulting from his own negligence. The provision, in short, is what the Court of Appeals called “a simple responsibility clause.” 408 F. 2d 146, 148. But today this innocuous boilerplate language is turned inside out. For the Court says that the provision really is a promise by the contractor to reimburse the Government for losses it incurs resulting from its negligence.

To be sure, the Court does not go quite so far as to hold that this obscure clause operates as a complete liability insurance policy. But the Court does hold that the clause requires the contractor to indemnify the Government “to the full extent that its negligence, if any, contributed to the injuries to the employee.” The magnitude of the burden the Court imposes is well illustrated by the circumstances of this case. Here an employee of the contractor was injured in the scope of his employment on plumbing work that the contractor was performing at the Paris Island Marine Depot in South Carolina. The employee recovered from the contractor the benefits to which he was entitled under the state workmen’s compensation law. The employee then sued the Government under the Federal Tort Claims Act, claiming that his injuries had actually been caused by the Government’s negligence. The Federal District Court agreed, finding that the negligence of the United States was the “sole cause” of the employee’s injuries and awarding him $45,000 in damages. The Court today says that the United States can now recover an indeterminate portion of this $45,000 from the contractor, because the contractor has agreed to “indemnify the United States . . . .”

Despite intimations in the Court’s opinion to the contrary, we do not deal here with “common law or statutory rules of contribution or indemnity.” The only question the Court decides is the meaning of the words of a clause in a government contract. I think the meaning attributed to that clause today is as unconscionable as it is inaccurate.

The clause first appeared in government contracts at least eight years before the enactment of the Federal Tort Claims Act in 1946. Before the passage of that Act the United States could not be sued in tort for personal injuries. Thus there was absolutely no reason for the Government to secure for itself a right to recovery over against an alleged joint tortfeasor. Yet we are asked to believe that the drafter of this clause was so prescient as to foresee the day of government tort liability nearly a decade in the future, and so ingenious as to smuggle a provision into a standard contract form that would, when that day arrived, allow the Government to shift its liability onto the backs of its contractors. This theory is nothing short of incredible.

In drafting its construction contracts the United States certainly has both the power and the resources to write contracts providing expressly that it will pass off onto its contractors, either in whole or in part, liability it incurs for damages caused by its own judicially determined negligence. The Government could require its contractors to hold it harmless without regard to fault on their part, or it could establish a proration of liability arising from the joint negligence of the parties. But the contractual provision before us does neither. It no more says that the contractor shall reimburse the Government for his share of joint negligence than that he shall be a liability insurer for the Government's sole negligence.

The Court nonetheless manages to discover that the clause amounts to a contribution agreement, relying for its conclusion upon cases involving, not the simple responsibility clause before us, but express indemnification agreements with “hold harmless” clauses. This result is said to be desirable because it ensures a fair distribution of loss between those jointly responsible for the damage. But when Seekinger entered into this contract, it had every reason to expect that its liability for injuries to its employees would be limited to what is imposed by the South Carolina compensation law. That law relieved it of responsibility in tort in exchange for its guarantee that its employees would recover without regard to fault. Presumably its bid on the government project reflected its reasonable expectation that this would be the extent of its liability on account of employee accidents. Now the Court heaps an unforeseen federal contractual burden atop the requirement the State has already imposed.

If the Government wants to impose additional liabilities upon those with whom it contracts to do its work, I would require it to do so openly, so that every bidder may clearly know the extent of his potential liability. Even in the domain of private contract law, the author of a standard-form agreement is required to state its terms with clarity and candor. Surely no less is required of the United States of America when it does business with its citizens.

Mr. Justice Holmes once said that “[m] en must turn square corners when they deal with the Government.” I had always supposed this was a two-way street. The Government knows how to write an indemnification or contribution clause when that is what it wants. It has not written one here.

I would affirm the judgment.

       In the petition for certiorari, the Solicitor General advised that there are presently pending 200 government suits involving the same or similar clauses.

       Compare, e. g., Fisher v. United States, 299 F. Supp. 1 (D. C. E. D. Pa. 1969), and United States v. Accrocco, 297 F. Supp. 966 (D. C. D. C. 1969), with, e. g., the decision of the Court of Appeals in the instant case.

       The third-party complaint was therefore dismissed “with leave to . . . the United States ... to take such further action at an appropriate time.” The order was not appealed, and we imply no view concerning the propriety of the District Court’s action.

       The District Court concluded, inter alia, that the negligence of the United States was the “sole cause” of the employee’s injuries. We do not pause to consider what effect, if any, under all the circumstances of this case, the South Carolina judgment could properly have in the instant case. The effect of the prior judgment was not raised below except as a defense contention that it constituted an absolute bar to the instant proceedings.

       Specifically, the United States alleged that Seckinger was negligent in that it (1) failed to request that the power distribution line be de-energized; (2) failed to request that the wires at the place where the accident occurred be insulated; (3) failed to provide safety insulation on the wires; (4) permitted, and in fact directed, the subsequently injured employee to work in close proximity to the wires; and (5) failed to prevent the employee from proceeding in a manner that was dangerous and that caused him to be injured.

       The Court of Appeals held that the Government’s suit was not barred by principles of res judicata because the South Carolina District Court expressfy left open the option of the United States to pursue its claim against Seckinger at a later time. We agree with this conclusion of the Court of Appeals.

       In the present state of the record, we neither accept nor reject this characterization of the relative degrees of fault of Seckinger and the United States.

       The Government, therefore, does not take issue with those authorities that exhibit reluctance to permit a negligent indemnitee to recover from a faultless indemnitor unless this intention appeared with particular clarity from the contract. See, e. g., Associated Engineers, Inc. v. Job, 370 F. 2d 633, 651 (C. A. 8th Cir. 1966), cert. denied sub nom. Troy Cannon Const. Co. v. Job, 389 U. S. 823 (1967).

       In context, the clause in question appears as follows:
      “11. PERMITS AND RESPONSIBILITY FOR WORK, ETC.
      “The Contractor shall, without additional expense to the Government, obtain all licenses and permits required for the prosecution of the work. He shall be responsible for all damages to persons or property that occur as a result of his fault or negligence in connection with the prosecution of the work. He shall also be responsible for all materials delivered and work performed until completion and final acceptance, except for any completed unit thereof which theretofore may have been finally accepted.”

       See, e. g., 41 CFR §§ 11.1, 11.3, 12.23, Art. 10 (1938).

       The objective of the remand was frustrated when no additional evidence was presented to the District Court. That court merely adhered to the construction of the contract that had been adopted by the Court of Appeals, 153 F. 2d 605 (C. A. 2d Cir. 1946), namely, that the United States was entitled to full indemnity from a steve-doring contractor although both the United States and the contractor were found to have been negligent. Porello v. United States, 94 F. Supp. 952 (D. C. S. D. N. Y. 1950).

       “The validity and construction of contracts through which the United States is exercising its constitutional functions, their consequences on the rights and obligations of the parties, the titles or liens which they create or permit, all present questions of federal law not controlled by the law of any State.” 322 U. S., at 183.

       Congress has provided extensive arrangements for the procurement, management, and disposal of government property. See generally 40 U. S. C. §§ 471-535 (1964 ed. and Supp. IV). As part of this statutory scheme, the Administrator of General Services is authorized to issue regulations necessary to perform his various managerial functions. 40 U. S. C. § 486 (e). Pursuant to this authority, various form contracts, one of which includes the provision that is the subject of this suit, have been promulgated for official use. 41 CFR §§ 1-16.401 to 1-16.404, 1-16.901-23A, Art. 12 (1969). See generally State Bar of California, Committee on Continuing Education of the Bar, Government Contracts Practice § 13.93 (1964).

       See, e. g., Sternberger v. United States, 185 Ct. Cl. 528, 543, 401 F. 2d 1012, 1021 (1968); Sun Shipbuilding & Drydock Co. v. United States, 183 Ct. Cl. 358, 372, 393 F. 2d 807, 816 (1968); Jones v. United States, 304 F. Supp. 94, 103 (D. C. S. D. N. Y. 1969).

       A number of courts take the view, frequently in a context in which the indemnitee was solely or principally responsible for the damages, that there can be indemnification for the indemnitee’s negligence only if this intention is explicitly stated in the contract. See, e. g., Freed v. Great A. & P. Tea Co., 401 F. 2d 266 (C. A. 6th Cir. 1968) (intention of parties must be “clear and unambiguous” necessitating a clause such as “including damage from indemnitee’s own negligence”); Brogdon v. Southern R. Co., 384 F. 2d 220 (C. A. 6th Cir. 1967) (same); City of Beaumont v. Graham, 441 S. W. 2d 829 (Tex. 1969) (indemnitor’s promise to indemnify for his negligent acts does not extend to indemnification for indemnitee’s negligence); Young v. Anaconda American Brass Co., 43 Wis. 2d 36, 168 N. W. 2d 112 (1969) (indemnitor not liable for such portion of total liability attributable to act of indemnitee unless indemnity contract by express provision and strict construction so provides); cases collected in Annot., 175 A. L. R. 8, 29-38 (1948).
      Other cases do not require that indemnification for the indemnitee’s negligence be specifically or expressly stated in the contract if this intention otherwise appears with clarity. See, e. g., Auto Owners Mut. Ins. Co. v. Northern Ind. Pub. Serv. Co., 414 F. 2d 192 (C. A. 7th Cir. 1969); Eastern Gas & Fuel Associates v. Midwest-Raleigh, Inc.. 374 F. 2d 451 (C. A. 4th Cir. 1967); Unitec Corp. v. Beatty Safway Scaffold Co., 358 F. 2d 470 (C. A. 9th Cir. 1966); Batson-Cook Co. v. Industrial Steel Erectors, 257 F. 2d 410 (C. A. 5th Cir. 1958).

         Several earlier eases declared clauses that purported to indemnify for the indemnitee’s negligence void as contrary to public policy. See, e. g., Sternaman v. Metropolitan Life Ins. Co., 170 N. Y. 13, 62 N. E. 763 (1902); Johnson’s Administratrix v. Richmond & D. R. Co., 86 Va. 975, 11 S. E. 829 (1890). See also Bisso v. Inland Waterways Corp., 349 U. S. 85 (1955); Otis Elevator Co. v. Maryland Cos. Co., 95 Colo. 99, 33 P. 2d 974 (1934).

       An example of an indemnification clause that makes specific reference to the effect of the negligence of the indemnitee is the following recommendation of the American Institute of Architects:
      "4.18. INDEMNIFICATION
      “4.18.1. The Contractor shall indemnify and hold harmless the Owner and the Architect and their agents and employees from and against all claims, damages, losses and expenses including attorneys’ fees arising out of or resulting from the performance of the Work, provided that any such claim, damage, loss or expense (a) is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) including the loss of use resulting therefrom, and (b) is caused in whole or in part by any negligent act or omission of the Contractor, any Subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by a party indemnified hereunder." AIA Document A 201, Sept. 1967.
      We specifically decline to hold that a clause that is intended to encompass indemnification for the indemnitee’s negligence must include an “indemnify and hold harmless” clause or that it must explicitly state that indemnification extends to injuries occasioned by the indemnitee’s negligence. Thus, contrary to the view apparently adopted in the dissenting opinion, we assign no talismanic significance to the absence of a “hold harmless” clause. Our approach is, in this respect, consistent with American Stevedores, Inc. v. Porello, 330 U. S., at 457-458. Contract interpretation is largely an individualized process, with the conclusion in a particular case turning on the particular language used against the background of other indicia of the parties’ intention. Consequently, we hold only that, in this case, the clause that provides that Seckinger will be responsible for all damages resulting from its negligence is insufficiently broad to encompass responsibility for injuries resulting from the negligence of the Government. And, of course, the Government is entitled to no recovery unless it establishes that Seckinger was negligent. Thus the dissenting opinion mischaracterizes the scope of our holding when it states that Seckinger must “reimburse the Government for losses it incurs resulting from its negligence.”

       See, e. g., United States v. Haskin, 395 F. 2d 503 (C. A. 10th Cir. 1968); Brogdon v. Southern R. Co., 384 F. 2d 220 (C. A. 6th Cir. 1967); Shamrock Towing Co. v. City of New York, 16 F. 2d 199 (C. A. 2d Cir. 1926); Williams v. Midland Constructors, 221 F. Supp. 400 (D. C. E. D. Ark. 1963); City of Beaumont v. Graham, 441 S. W. 2d 829 (Tex. 1969); Young v. Anaconda American Brass Co., 43 Wis. 2d 36, 168 N. W. 2d 112 (1969).

       An employer’s liability for injuries suffered by his employees to which his negligence partially contributed varies from jurisdiction to jurisdiction. In the absence of workmen's compensation statutes, the employer and the third-party tortfeasor would be jointly and severally liable, under traditional principles, for the injuries produced. In a majority of jurisdictions, contribution or indemnity is available either by statute or common law, as a device for the redistribution of the burden among the joint tortfeasors. See generally W. Prosser, Law of Torts §§ 47, 48 (3d ed. 1964). In 1956, when Seckinger’s employee was injured, South Carolina law was unclear in this respect, apparently permitting contribution or indemnity under some circumstances. See generally Comment, Indemnity Among Joint Tort-Feasors — As Affected by the Federal Employers Liability Act, 17 S. C. L. Rev. 423 (1965).
      Workmen’s compensation provisions, now enacted in all States, have considerable effect on the employer’s potential liability to the third-party tortfeasor. However, these statutes vary greatly in the categories of employers and employees to which they apply, see generally, A. Reede, Adequacy of Workmen’s Compensation (1947), and even today about two-thirds of the statutes provide that coverage is voluntary as to both employers and employees. 2 A. Larson, The Law of Workmen’s Compensation § 67.10 (1969).
      When a workmen’s compensation plan does cover particular employers and employees, a third-party suit against an employer who was also negligent is barred by the majority rule, although recovery is not infrequently permitted on implied or quasi-contractual theories. See, e. g., Associated Engineers, Inc. v. Job, 370 F. 2d 633, 651 (C. A. 8th Cir. 1966); 2 A. Larson, supra, §§ 76.00-76.53. Whether such a suit is permitted under South Carolina law apparently has not been authoritatively determined. See generally Burns v. Carolina Power & Light Co., 88 F. Supp. 769 (D. C. E. D. S. C. 1950).

       A number of courts have reached comparable results. See, e. g., Brogdon v. Southern R. Co., 384 F. 2d 220 (C. A. 6th Cir. 1967); Williams v. Midland Constructors, 221 F. Supp. 400 (D. C. E. D. Ark. 1963); C & L Rural Elec. Coop. Corp. v. Kincaid, 221 Ark. 450, 256 S. W. 2d 337 (1953), after remand, 227 Ark. 321, 299 S. W. 2d 67 (1957); Young v. Anaconda American Brass Co., 43 Wis. 2d 36, 168 N. W. 2d 112 (1969). See also United States v. Raskin, 395 F. 2d 503 (C. A. 10th Cir. 1968); Shamrock Towing Co. v. City of New York, 16 F. 2d 199 (C. A. 2d Cir. 1926).

         While it is true that the interpretation adopted by the Court of Appeals is even less favorable to the Government than that which we adopt, we have concluded, for reasons previously stated, that the Court of Appeals' view would drain the clause of any significant meaning and is decidedly contrary to its plain language.
      A 1941 letter from the Comptroller General, 21 Comp. Gen. 149, relied upon in dissent, sheds no light whatever on the problem of contract construction before us. There the Comptroller General, in commenting upon a question that he said was “of first impression” suggested that, under some circumstances, a contractor under a cost-plus-fixed-fee contract may seek reimbursement from the Government, as an element of his actual costs, for damages that he sustained by reason of his negligence. Since the contract clause in question was introduced long before the 1941 letter, it obviously was not responsive to any issues raised by the Comptroller. Moreover, we deal in this case with a fixed-price construction contract, a type of contract with which the Comptroller General was in no way concerned. Thus, no support is provided for the facile assumption of the dissent that, merely because a cost-plus contractor may arguably seek reimbursement for additional costs produced by his own negligence, it follows that a contractor committed to complete a project for a fixed price also may seek reimbursement because of damage caused by his own negligent acts.
      We agree with the dissenting opinion that the contract clause does mean exactly what it says. What it says is that Seckinger shall be “responsible for all damages” arising from its negligence, that is, that the burden of Seckinger’s negligence may not be shifted to the United States. To be sure, the clause bars any attempt by Seckinger to obtain reimbursement from the Government for Seck-inger’s negligence. But an interpretation that limited the operation of the clause to this narrow situation would constitute an impermissible frustration of the contractual scheme, for such a construction would shift the burden of Seckinger’s negligence to the United States through the medium of a recovery against the Government by the injured employee. The contractual objective — that liability for the contractor’s negligence not be shifted to the United States — can be achieved in cases of concurrent negligence when there has been a prior recovery against the Government only by resort to the comparative negligence analysis that we have adopted, which requires Seckinger to indemnify the Government, but only to the extent that the Government was called upon, in the first instance, to respond in damages as a result of Seckinger’s negligence. 22

       Because we have taken the view that the rights and liabilities of Seckinger and the United States inter se are governed by contract, we need not reach the Government’s alternative theory, rejected by the Court of Appeals, that Seckinger breached an implied warranty of workmanlike service.

       This sentence is contained in a paragraph entitled “Permits and Responsibility for Work, etc.” See ante, at 208 n. 9.

       I have found no previous reported decision construing this clause as the Court construes it today.

       It will not do to say, as the Court says today, that this construction of the clause makes its purpose “totally unclear” or “would drain this clause of any significant meaning or protection for the Government . . . .” For without such a clause, there would surely be room for the contractor to claim reimbursement from the Government for unforeseen increased costs incurred on account of his negligence, particularly where the Government was jointly negligent. With respect to contracts not containing such a clause — cost-plus contracts, for example — the Comptroller General advised the Secretary of War almost 30 years ago that the Government may, indeed, be liable to the contractor under such circumstances. See 21 Comp. Gen. 149, 156-157 (1941).

       Under the law of South Carolina — which determines the Government’s liability in tort to the injured employee, 28 U. S. C. § 1346 (b); Richards v. United States, 369 U. S. 1 — the general rule is that there is no right to contribution among joint tortfeasors. Atlantic Coast Line R. Co. v. Whetstone, 243 S. C. 61, 68-70, 132 S. E. 2d 172, 175-176. Moreover, since the injured employee has accepted his award against Seckinger under the state workmen’s compensation statute, he cannot hold Seckinger in tort. S. C. Code Ann. §§ 72-121, 72-123 (1962); Adams v. Davison-Paxon Co., 230 S. C. 532, 545, 96 S. E. 2d 566, 572-573. So Seckinger can hardly be cast in the role of a tortfeasor in any event.

       The Court’s conclusion that the Court of Appeals’ construction of the clause might "reduce Seckinger’s potential liability under common law or statutory rules of contribution or indemnity” seems wholly incorrect. The contractor’s agreement not to seek reimbursement or contribution from the Government would have no bearing upon the question whether local "common law or statutory rules of contribution and indemnity” give the Government any right to recover from the contractor.

       These cases are cited in the Court’s opinion, ante, at 215 n. 207

       Under South Carolina law Seekinger has been subrogated to ite injured employee’s claim against the United States to the extent of its own compensation payment. S. C. Code Ann. § 72-124 (1962). But the Court today subjects Seekinger to the incremental risk of liability in contribution, in a yet-to-be-determined proportion, for the employee’s added recovery in his tort suit against the Government.

         E. g., Chrysler Corp. v. Hanover Ins. Co., 350 F. 2d 652, 655; Riess v. Murchison, 329 F. 2d 635, 642; Restatement of Contracts § 235 (e); 3 A. Corbin on Contracts § 559 (1960).

        Sternberger v. United States, 185 Ct. Cl. 528, 543, 401 F. 2d 1012, 1021; Jones v. United States, 304 F. Supp. 94, 101.

        Rock Island, A. & L. R. Co. v. United States, 254 U. S. 141, 143.


source: Caselaw Access Project

author: Per Curiam. Me. Chief Justice Burger,

license: Public Domain

text:
    TAGGART et al. v. WEINACKER’S, INC.
    No. 74.
    Argued January 12, 1970
    Decided March 9, 1970

      Bernard Dunau argued the cause for petitioners. With him on the briefs were Carl L. Taylor, Otto E. Simon, and James C. Wood.

      Shayle P. Fox argued the cause for respondent. With him on the brief were Lawrence M. Cohen and Alan Raywid.

    Briefs of amici curiae urging reversal were filed by Solicitor General Griswold, Arnold Ordman, Dominick L. Manoli, Norton J. Come, and Linda Sher for the National Labor Relations Board, and by J. Albert Woll, Laurence Gold, and Thomas E. Harris for the American Federation of Labor and Congress of Industrial Organizations.

      Brice I. Bishop and Phil B. Hammond filed a brief for the American Retail Foundation as amicus curiae urging affirmance.

      Allen B. Gresham filed a brief for the Homart Development Co. as amicus curiae.

   Per Curiam.

The complaint in this case was filed January 21, 1965, and the state court issued a temporary injunction on January 22, 1965. After hearing, the state court on April 1, 1965, denied petitioners’ motion to dissolve the temporary injunction and continued it in effect. On April 9, 1965, an appeal was taken to the Supreme Court of Alabama. Over three years later, on September 19, 1968, that court entered a judgment of affirmance. The petition for certiorari was filed here on March 28, 1969, and granted on October 13, 1969. 396 U. S. 813.

At the time the appeal was taken to the Supreme Court of Alabama, respondent operated a retail grocery and drug business on the premises that petitioners picketed. Late in 1966, while the appeal was pending in the Supreme Court of Alabama, respondent ceased to operate the grocery and drug business, leasing part of the space to Delchamps, Inc., for a retail grocery store, and part to Walgreen’s, Inc., for a retail drug store. Respondent continues to own the land and the building at the site and maintains an office in the building. The injunction enjoins petitioners from “trespassing upon the property of the complainant and from further interfering with the complainant’s property and right of ingress and egress to the complainant’s property and place of business, until the further orders of this Court.”

While the changed circumstances do not necessarily make the controversy moot, they are such that, if known at the time the petition for a writ of certiorari was acted upon, we would not have granted it. For such small embers of controversy that may remain do not present the threat of grave state-federal conflict that we need sit to resolve.

In this connection one other circumstance should be noted. The Alabama Supreme Court found that this picketing “obstructed customers using the entrances to the store.” Petitioners complain (a) that no evidentiary hearing to resolve that factual question was ever held; (b) that it rests solely on conclusory affidavits; (c) that that is a fundamentally infirm procedure for handling facts in the area of the First Amendment; and (d) that if there were obstruction the remedy is enjoining the obstruction, not picketing generally. Yet this phase of the case is overshadowed by the special facts of the case as they were finally clarified on oral argument. The picketing started on the public sidewalks around respondent’s premises which are removed from respondent’s store by a parking lot; but it soon was transferred to a sidewalk owned and maintained by respondent, a sidewalk from 4 feet to 5.5 feet wide and adjacent to the door of the store where the picketing took place. Even if under Food Employees v. Logan Valley Plaza, 391 U. S. 308, the union had a First Amendment right to picket on the property involved in this case, a matter that we need not decide, in final analysis we would come down to whether, in light of the physical circumstances of this narrow sidewalk at the store entrance, the following ruling in Logan Valley, 391 U. S., at 320-321, is applicable:

“[T]he exercise of First Amendment rights may be regulated where such exercise will unduly interfere with the normal use of the public property by other members of the public with an equal right of access to it.”

While the finding of obstruction was based on affidavits filed by respondent, petitioners, though they had the right under Alabama procedure to do so, Ala. Code, Tit. 7, § 1055 (1958), filed no counter-affidavits prior to issuance of the temporary injunction. Nor did they, as was their right under Tit. 7, § 1061, of the Alabama Code, submit any such affidavits on the hearing to dissolve the injunction. They did, however, deny in their motion to dissolve that they were “obstructing customers from leaving or entering” respondent's place of business. But the only evidence before the Alabama courts on the issue of obstruction was in respondent’s affidavits. That issue was critical, in light of the physical circumstances concerning the narrow sidewalk in front of the door where the picketing took place. Petitioners, however, chose to rest on jurisdictional grounds.

In light of the obscure record, the physical circumstances of this narrow sidewalk, and the finding of the Alabama courts on obstruction of customers, coupled with the fact that only a bare remnant of the original controversy remains, we conclude that the writ should be dismissed as improvidently granted.

Mr. Justice Black and Mr. Justice Harlan would hold under San Diego Building Trades Council v. Garmon, 359 U. S. 236, that the State’s jurisdiction, in the case is pre-empted by the National Labor Relations Board’s primary jurisdiction over labor disputes.

[For separate memorandum of Me. Justice Harlan, see post, p. 229.]

Me. Chief Justice Burger,

concurring.

I am in accord with the Court’s action in dismissing this petition as having been improvidently granted. As the opinion of the Court indicates, “the obscure record” and “the fact that only a bare remnant of the original controversy remains” cast serious doubt on whether we have enough before us to pass on the claim of the union that it had a First Amendment right to picket on the private premises of the employer.

The obscure record and the atrophied controversy now remaining have little if any impact — I think none — on the issue of whether the State’s jurisdiction over this matter is “pre-empted” by the National Labor Relations Board’s primary jurisdiction over labor disputes. In my view any contention that the States are pre-empted in these circumstances is without merit. The protection of private property, whether a home, factory, or store, through trespass laws is historically a concern of state law. Congress has never undertaken to alter this allocation of power, and has provided no remedy to an employer within the National Labor Relations Act (NLRA) to prevent an illegal trespass on his premises. Rather, it has acted against the backdrop of the general application of state trespass laws to provide certain protections to employees through § 7 of the NLRA, 61 Stat. 140, 29 U. S. C. § 157. A holding that the States were precluded from acting would remove the backdrop of state law that provided the basis of congressional action but would leave intact the narrower restraint present in federal law through § 7 and would thereby artificially create a no-law area.

Nothing in San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959), would warrant this Court to declare state-law trespass remedies to be ineffective and thus to remit a person to his own self-help resources if he desires redress for illegal trespassory picketing. Garmon left to the States the power to regulate any matter of “peripheral concern” to the NLRA or that conduct that touches interests “deeply rooted in local feeling and responsibility.” (359 U. S., at 243, 244.) Few concepts are more “deeply rooted” than the power of a State to protect the rights of its citizens. Linn v. United Plant Guard Workers, Local 114, 383 U. S. 53 (1966), applied the Garmon exceptions to allow state jurisdiction over malicious libel in union organizational literature, recognizing that if the States were precluded from acting, there would be an absence of any legal remedy. The Court there observed that:

“The fact that the Board has no authority to grant effective relief aggravates the State’s concern since the refusal to redress an otherwise actionable wrong creates disrespect for the law and encourages the victim to take matters into his own hands.” 383 U. S., at 64 n. 6.

A holding that Congress pre-empted this entire area is as inappropriate here as it was in Linn, and for precisely the same reasons. Cf. International Longshoremen’s Local 1416 v. Ariadne Shipping Co., ante, p. 201 (White, J., concurring).

Separate memorandum of Mb. Justice Hablan.

I am prompted by the concurring opinion of The Chief Justice in this case, and by the concurring opinion of Mb. Justice White (joined by The Chief Justice and Mb. Justice Stewabt) in International Longshoremen’s Local 1416 v. Ariadne Shipping Co., ante, p. 201, decided today, to amplify, with the following observations, my vote to grant certiorari and reverse the state judgment in the present case.

I would have thought this an easy case after San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959), wherein the Court concluded, in the broadest terms, that conduct that is either “arguably protected” or “arguably prohibited” under the federal labor laws is not subject to regulation by the States. In such cases the Court held that federal law and federal remedies apply to the exclusion of any state rules, and that whether federal law does apply is to be decided in the first instance by the National Labor Relations Board in accordance with the policy of “primary jurisdiction” established by the National Labor Relations Act. It was concluded that the Board’s jurisdiction was pre-emptive notwithstanding the fact that access to the Board was barred by its refusal to exercise jurisdiction because of failure to meet the dollar-amount requirements.

The picketing in the case before us occurred, as found by the Alabama trial court, in the context of a labor dispute, and ultimately took place on private sidewalks maintained by respondent in front of entrances to its building. The trial court also found that there was no violence or threat of violence. Thus, notwithstanding my differences with the Garmon majority, see my concurring opinion, 359 U. S., at 249, as to whether States are pre-empted from regulating arguably “unprotected” activities, id., at 253, I would reverse the decision below since the picketing in this case falls well within the range of what could be considered to be protected under the Act.

While I recognize The Chief Justice’s and Mr. Justice White’s concern over the hiatus created when the Board does not or cannot assert its jurisdiction, see the concurring opinion of The Chief Justice, ante, p. 227, and the concurring opinion of Mr. Justice White in International Longshoremen’s Local 1416 v. Ariadne Shipping Co., ante, p. 201; see also Broomfield, Preemptive Federal Jurisdiction Over Concerted Trespassory Union Activity, 83 Harv. L. Rev. 552 (1970), that consideration is foreclosed, correctly in my view, by Garmon. Congress in the National Labor Relations Act erected a comprehensive regulatory structure and made the Board its chief superintendent in order to assure uniformity of application by an experienced agency. Where conduct is “arguably protected,” diversity of decisions by state courts would subvert the uniformity Congress envisioned for the federal regulatory program. In the absence of any further expression from Congress I would stand by Garmon and foreclose state action with respect to “arguably protected activities," until the Board has acted, even if wrongs may occasionally go partially or wholly unredressed.

Nothing in Linn v. United Plant Guard Workers, Local 114, 383 U. S. 53 (1966), is to the contrary. The allusion there to the exacerbating effect of the vacuum created by the Board’s inability to “redress” an “otherwise actionable wrong” was made in the context of an implicit holding that “malicious libel,” even though published during a labor campaign, was not “arguably protected” by the Act and the determination that it was a “merely peripheral concern of the Labor Management Relations Act.” 383 U. S., at 61. Linn is far removed from the present case. Cf. International Association of Machinists v. Gonzales, 356 U. S. 617 (1958).

       Section 1055 provides:
      “Upon the hearing of the application for injunction, the sworn answer of the defendant may be considered as well as the bill, and both sides may introduce affidavits of themselves or other witnesses; and upon consideration, the judge must determine whether the injunction be granted or refused.”

       Section 1061 provides:
      "Upon the hearing of motion to dissolve an injunction, the court may consider the sworn bill and answer, whether the answer contains denials of the allegations of the bill or independent defensive matter, and also such affidavits as any party may introduce.”

      See People v. Goduto, 21 Ill. 2d 605, 608-609, 174 N. E. 2d 385, 387, cert. denied, 368 U. S. 927 (1961); Hood v. Stafford, 213 Tenn. 684, 694-695, 378 S. W. 2d 766, 771 (1964); Moreland Corp. v. Retail Store Employees, Local 444, 16 Wis. 2d 499, 503, 114 N. W. 2d 876, 878 (1962); Broomfield, Preemptive Federal Jurisdiction Over Concerted Trespassory Union Activity, 83 Harv. L. Rev. 552, 555, 562-568 (1970).


author: Per Curiam. Mr. Chief Justice Burger,

text:
    NORTHCROSS et al. v. BOARD OF EDUCATION OF THE MEMPHIS, TENNESSEE, CITY SCHOOLS et al.
    No. 1136.
    Decided March 9, 1970

      Jack Greenberg and James M. Nabrit III for petitioners.

      Jack Petree for respondents.
   Per Curiam.

In 1966 the District Court for the Western District of Tennessee approved a plan of respondent Board of Education for the desegregation of the Memphis school system. In July 1968 petitioners made a motion that the court order the Board to adopt a new plan prepared with the assistance of the Title IV Center of the University of Tennessee. The Center is funded by the Department of Health, Education, and Welfare. The 1966 plan permitted unrestricted free transfers, and petitioners desired a plan without such a provision, and one that would also provide among other things for complete faculty desegregation. The District Court denied the motion as filed but on May 15, 1969, in an unreported opinion, directed respondent Board to file a revised plan which would incorporate the existing plan (as respondent proposed during the hearing to supplement it), and which also would contain a modified transfer provision, a provision for the appointment of a Director of Desegregation charged with responsibility to devise ways and means “of assisting the Board in its affirmative duty to convert to a unitary sj^stem in which racial discrimination will be eliminated root and branch,” and provision for faculty desegregation. The court also directed that, prior to January 1, 1970, the Board file a map of proposed revised zone boundary lines and enrollment figures by race within the revised zones to enable the court then to “reconsider the adequacy of the transfer plan.” The District Court expressly found that such further steps were necessary because, although the respondent Board “has acted in good faith,” “the existing and proposed [supplemental] plans do not have real prospects for dismantling the state-imposed dual system at the ‘earliest practicable date.' ”

Petitioners appealed to the Court of Appeals for the Sixth Circuit. In June 1969 they filed a Motion for Summary Reversal and on November 3, 1969, after this Court’s decision in Alexander v. Holmes County Board of Education, 396 U. S. 19 (1969), a motion to require adoption of a unitary system now. Both motions were denied on December 19, 1969, and the case was remanded to the District Court; the Court of Appeals stated that action on its part would be premature “until the United States District Court has had submitted to it the ordered plan, and has had opportunity to consider and act upon it.”

Petitioners thereupon filed in the Court of Appeals a motion for injunction pending certiorari which, in reliance upon Alexander v. Holmes County Board, sought an injunction requiring respondent Board “to prepare and file on or before January 5, 1970, in addition to the adjusted zone lines it is presently required to file, a plan for the operation of the City of Memphis public schools as a unitary system during the current 1969-70 school year.” The motion was denied on January 12, 1970, on the ground that Alexander v. Holmes County Board was inapplicable to the case because “[the Court of Appeals is] satisfied that the respondent Board of Education of Memphis is not now operating a ‘dual school system’ and has, subject to complying with the present commands of the District Judge, converted its pre-Brown dual system into a unitary system ‘within which no person is to be effectively excluded because of race or color.’ ”

Petitioners, on January 30, 1970, filed in this Court a petition for certiorari and a motion for injunction pending certiorari “requiring the preparation, with the assistance of H. E. W. or the H. E. W.-funded University of Tennessee Title IV Center, of a plan of complete pupil and faculty integration affecting all phases of the operations of the Memphis public school system, for implementation during the 1969-70 school year in conformity with . . . Alexander v. Holmes County Bd. . . .”

The petition for certiorari is granted. We hold that the Court of Appeals erred in the following respects:

1. Since the findings of the District Court — that the state-imposed dual system had not been dismantled under the 1966 plan and that that plan and the Board’s proposed supplemental plan did “not have real prospects for dismantling [it] ... at the ‘earliest practicable date’ ” — are supported by substantial evidence, the Court of Appeals erred in substituting its own finding that respondent Board “is not now operating a ‘dual school system’. . . .”

2. Since it appears that neither the revised plan of desegregation filed on June 9, 1969, nor the revised school zones and updated enrollment figures which were ordered to be filed on or before January 1, 1970, were properly before the Court of Appeals for review, it was premature for the Court of Appeals to rule that the Board “has, subject to complying with the present commands of the District Judge, converted its pre-Brown dual system into a unitary system ‘within which no person is to be effectively excluded because of race or color.’ ”

3. In holding that Alexander v. Holmes County Board is inapplicable to this case.

The Court of Appeals’ order of remand of December 19, 1969, is affirmed, but with direction that the District Court proceed promptly to consider the issues before it and to decide the case consistently with Alexander v. Holmes County Board. The order of the Court of Appeals of January 12, 1970, denying injunctive relief is affirmed. The motion for injunction pending cer-tiorari filed in this Court is denied.

The judgment herein shall issue forthwith.

It is so ordered.

Mr. Justice Marshall took no part in the consideration or decision of this case.

Mr. Chief Justice Burger,

concurring in the result. Save for one factor, I would grant the petition and set the case for expedited argument at a special sitting, if necessary. The factor which is a barrier to taking this step now in this particular case is that one Justice would not be able to participate, thus limiting the Court to seven justices. I would do this on the basis that the time has come to clear up what seems to be a confusion, genuine or simulated, concerning this Court’s prior mandates. By the time of No. 944, Carter v. West Feliciana Parish School Board, 396 U. S. 290 (1970), Mr. Justice Stewart and I indicated we preferred not to reach a decision without first hearing oral argument.

These school cases present widely varying factors: some records reveal plans for desegregating schools, others have no plans or only partial plans; some records reflect rezoning of school districts, others do not; some use traditional bus transportation such as began with consolidated schools where such transportation was imperative, others use school bus transportation for a different purpose and unrelated to the availability of a school as to which such transportation is not required.

The suggestion that the Court has not defined a unitary school system is not supportable. In Alexander v. Holmes County Board of Education, 396 U. S. 19 (1969), we stated, albeit perhaps too cryptically, that a unitary system was one ‘‘within which no person is to be effectively excluded from any school because of race or color.” From what is now before us in this case it is not clear what issues might be raised or developed on argument. As soon as possible, however, we ought to resolve some of the basic practical problems when they are appropriately presented including whether, as a constitutional matter, any particular racial balance must be achieved in the schools; to what extent school districts and zones may or must be altered as a constitutional matter; and to what extent transportation may or must be provided to achieve the ends sought by prior holdings of the Court. Other related issues may emerge.

However, for the reasons stated, namely that the Court is already disabled by one vacancy of long standing and further disabled in the particular case, I join in the result reached by the Court.


author: Per Curiam. Mr. Justice Harlan, Me. Justice Douglas,

text:
    COLE, BOSTON STATE HOSPITAL SUPERINTENDENT, et al. v. RICHARDSON

      No. 679.

    Decided March 16, 1970

      Robert H. Quinn, Attorney General of Massachusetts, Mark L. Cohen, Assistant Attorney General, and Gregor I. McGregor, Deputy Assistant Attorney General, for appellants in No. 679. Messrs. Quinn, Cohen, McGregor, and Walter H. Mayo III, Assistant Attorney General, for appellees in No. 774.

      Ernest Winsor and John F. Cogan, Jr., for appellee in No. 679 and appellant in No. 774.

      Together with No. 774, Richardson v. Cole, Boston State Hospital Superintendent, et al., also on appeal from the same court.

   Per Curiam.

The judgment is vacated and the cases are remanded to the United States District Court for the District of Massachusetts to determine whether these cases have become moot.

Mr. Justice Harlan,

with whom The Chief Justice joins,

concurring in the result.

The present appeals are from a single action commenced in the Federal District Court for the District of Massachusetts by Mrs. Richardson, challenging the validity of Mass. Gen. Laws Ann., c. 264, § 14 (1959). That law requires all public employees to subscribe to a loyalty oath which reads as follows:

“I do solemnly swear (or affirm) that I will uphold and defend the Constitution of the United States of America and the Constitution of the Commonwealth of Massachusetts and that I will oppose the overthrow of the government of the United States of America or of this Commonwealth by force, violence or by any illegal or unconstitutional method.”

Mrs. Richardson sought declaratory and injunctive relief against enforcement of the oath as a bar to her resuming employment with Boston State Hospital, and also sought damages for pay withheld by reason of her having refused to subscribe to the oath.

The District Court granted the requested declaratory and injunctive relief, but stated in its opinion, “We cannot grant her [Mrs. Richardson’s] request for back pay.” Accordingly, the formal judgment contained no allusion to the back-pay request.

Dr. Cole, the hospital superintendent, and another official in No. 679 appeal from the award of declaratory and injunctive relief. Mrs. Richardson has cross-appealed from the denial of back pay and by way of response to the appeal moved for summary affirmance and suggested, in the alternative, that the appeal is moot since the particular job she held has been “discontinued.” In reply, Dr. Cole has submitted an affidavit asserting that “[ejmployment consonant with [Mrs. Richardson’s] abilities and qualifications has been and is periodically available should she. wish to apply for such employment.”

I fail to understand today’s wholly unexplained and extraordinary disposition of remanding to the lower court to determine if these cases are moot. Since appellants in No. 679 have not disputed Mrs. Richardson’s specific statement that the job she held is no longer in existence, there may be some question as to whether a controversy continues to exist in that case, although I would have thought this question one to be resolved by this Court, without the necessity of a remand. Certainly, however, there can be no question that a live controversy exists over the damages question.

I am, however, content to acquiesce in the Court’s action because of the manifest triviality of the impact of the oath under challenge, a factor that may, I suspect, underlie today’s unusual disposition.

Whether or not one considers that the District Court erred in what perforce amounts to an exercise in semantics, I would suppose that the vagueness contentions in this instance can, depending on how one defines his terms, be characterized as at least colorable — for, as the opinion below aptly points out, almost any word or phrase may be rendered vague and ambiguous by dissection with a semantic scalpel. I do not, however, consider it a provident use of the time of this Court to coach what amounts to little more than verbal calisthenics. Cf. S. Chase, The Tyranny of Words (1969); W. Empson, Seven Types of Ambiguity (1955). This kind of semantic inquiry, however interesting, should not occupy the time of federal courts unless fundamental rights turn on the outcome.

I think it can be fairly said that subscribing to the instant oath subjected Mrs. Richardson to no more than an amenity. No First Amendment considerations, in my view, are at all involved in these eases. This oath does not impinge on conscience or belief, except to the extent that oath taking as such may offend particular individuals. I also think it safe to say that the signing of this oath triggered no serious possibility of prosecution for either perjury or failure to perform the obligations of .the oath. Indeed, I consider it most unfortunate that our past decisions in this field can be construed even to require solemn convocation of three federal judges to deal with a matter of such practical inconsequence.

Me. Justice Douglas,

dissenting.

The plaintiff Richardson brought this action before a three-judge District Court to declare unconstitutional a Massachusetts loyalty oath statute, to enjoin her superiors at the Boston State Hospital from prohibiting her from discharging her duties at the hospital, and to recover back pay. The District Court entered its opinion, granting the declaratory and injunctive relief but denying the claim for back pay, on June 26, 1969. 300 F. Supp. 1321. Appellants in No. 679 filed a notice of appeal from the grant of injunctive and declaratory relief in the District Court on July 30, 1969, and docketed a timely appeal in this Court on September 29,1969. Notice of appeal from the denial of back pay was filed in No. 774 in the District Court on August 25, 1969, and a timely appeal was docketed in this Court on October 24, 1969.

On October 25, 1969, appellee in No. 679 filed a motion to affirm or dismiss on the grounds of mootness: “At the time this case was heard and argued in the district court the appellee's job at Boston State Hospital was still in existence, but at or before the time the appellants filed their present appeal such job had been discontinued.”

In reply, appellants in No. 679 deny that the case is moot and in support thereof submit an affidavit of Dr. Cole, Superintendent of the Boston State Hospital, which states:

“1. At all times subsequent to the decision of the United States District Court in the above-entitled case on June 26, 1969 it has been, and at the present time is, open for the appellee Lucretia Peteros Richardson to apply for employment at Boston State Hospital and enjoy full consideration pursuant to the terms of the decision of the District Court;
“2. Employment consonant with her abilities and qualifications has been and is periodically available should she wish to apply for such employment;
“3. The project for which the appellee was hired is still on-going at Boston State Hospital.”

I do not see how one can even arguably maintain that the cases are moot.

The question tendered is an important one. The state oath struck down by the District Court on the grounds of vagueness reads as follows:

“I do solemnly swear (or affirm) that I will uphold and defend the Constitution of the United States of America and the Constitution of the Commonwealth of Massachusetts and that I will oppose the overthrow of the government of the United States of America or of this Commonwealth by force, violence or by any illegal or unconstitutional method.” Mass. Gen. Laws Ann., c. 264, § 14 (1959).

The District Court said:

“A Violation' of section 14, which presumably means a failure to ‘live up’ to the oath, since its phraseology is in the future tense, is a felony.” 300 E. Supp., at 1322.

The unanimous opinion of the District Court holding the oath unconstitutional is earnestly challenged by appellants in No. 679, who maintain that the invalidation of the oath is an unwarranted federal invasion of the State’s domain.

I would note probable jurisdiction on both appeals and put the cases down for oral argument.

      It appears from Mrs. Richardson’s jurisdictional statement in No. 774 that she stipulated in the District Court that after her formal termination of employment on November 25, 1968, for refusing to take the oath, she “volunteered to work full-time at Boston State Hospital ... to continue her research project.”


author: Per Curiam.

text:
    MARTIN-TRIGONA v. STATE BOARD OF LAW EXAMINERS OF ILLINOIS
    No. 1360,
    Misc.
    Decided March 16, 1970
   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. OGLE
    No. 737.
    Decided March 16, 1970

      Solicitor General Griswold, Assistant Attorney General Wilson, Beatrice Rosenberg, and Mervyn Hamburg for the United States.
   Per Curiam.

The judgment of the United States District Court for the Southern District of Indiana dismissing Count 1 of the indictment under 26 U. S. C. § 4742 (a) is reversed and the case is remanded to that court for trial on that count. Minor v. United States, 396 U. S. 87. The judgment of the same court dismissing Count 2 of the indictment under 26 U. S. C. §4744 (a)(1) is affirmed.


text:
    HAMILTON et al. v. McKEITHEN, GOVERNOR OF LOUISIANA
    No. 1046.
    Decided March 16, 1970

      C. Alvin Tyler for appellants.

      Jack P. F. Gremillion, Attorney General of Louisiana, and Sam H. Jones for appellee and intervenors below.
   Per Curiam.

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


text:
    TRYON v. IOWA
    No. 1090.
    Decided March 16, 1970

      Donald E. O’Brien for appellant.

      Richard C. Turner, Attorney General of Iowa, and David A. Elderkin and Michael J. Laughlin, Assistant Attorneys General, for appellee.
   Per Curiam.

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


text:
    BRATCHER v. LAIRD, SECRETARY OF DEFENSE, et al.
    No. 1391,
    Misc.
    Decided March 16, 1970

      Solicitor General Griswold for respondents.
   Per Curiam.

The motion for leave to proceed in forma pauperis is granted.

Upon consideration of the suggestion of the Solicitor General and upon an examination of the entire record, the petition for a writ of certiorari is granted, the judgment of the United States Court of Appeals for the Ninth Circuit is vacated, and the case is remanded to that court in order that it may consider whether it wishes to adhere to its decision in light of the contrary position now adopted by respondents. If it decides not to adhere to its former ruling, the Court of Appeals may then determine whether it would be appropriate to remand the case to the District Court.


text:
    NORTHERN FREIGHT LINES, INC., et al. v. UNITED STATES et al.
    No. 1100.
    Decided March 16, 1970

      Guy H. Postell, David A. Sutherlund, David Axelrod, Roland Rice, John S. Fessenden, Richard R. Sigmon, Peter T. Beardsley, R. Edwin Brady, Albert B. Rosen-baum, Donald E. Cross, Bryce Rea, Jr., Eugene T. Lvipfert, and William O. Turney for appellants.

      Solicitor General Griswold, Assistant Attorney General McLaren, Howard E. Shapiro, Robert W. Ginnane, Fritz R. Kahn, and Raymond M. Zimmet for the United States et al., John E. Robson and Arthur M. Wisehart for Railway Express Agency, Inc., and John J. C. Martin for Drug & Toilet Preparation Traffic Conference et al., appellees.
   Per Curiam.

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


text:
    CITY OF NEW YORK v. UNITED STATES et al.
    No. 1121.
    Decided March 16, 1970

      J. Lee Rankin, Norman Redlich, John R. Thompson, and David I. Shapiro for appellant in No. 1121. Benjamin F. Schwartz and Herbert A. Karzen for appellants in No. 1122.

      Solicitor General Griswold, Assistant Attorney General McLaren, Howard E. Shapiro, and Bernard M. Hollander for the United States in both cases. Carl J. Schuck, Wayne H. Knight, Fred D. Fagg III, Philip K. Verleger, Allyn 0. Kreps, Julian 0. Von Kalinowski, Lloyd N. Cutler, Howard P. Willens, James S. Campbell, Ross L. Malone, and Marcus Mattson for Automobile Manufacturers Assn., Inc., et al., appellees in both cases.
    Briefs of amici curiae in No. 1121 were filed by Jerry S. Cohen, Harold E. Kohn, Aaron M. Fine, and William T. Coleman, Jr., for the City of Baltimore et al. ; by John H. Larson for the County of Los Angeles et al. ; and by David Berger and Herbert B. Newberg for the County of Lackawanna et al.

      Together with No. 1122, Grossman et al. v. Automobile Manufacturers Assn., Inc., et al., also on appeal from the same court.

   Per Curiam.

In No. 1121 the motion to affirm is granted and the judgment is affirmed.

In No. 1122 the motion to dismiss is granted and the appeal is dismissed for want of jurisdiction.


author: Mr. Justice Douglas

text:
    UNITED STATES v. VAN LEEUWEN
    No. 403.
    Argued February 25, 1970
    Decided March 23, 1970

      Solicitor General Griswold argued the cause for the United States. With him on the brief were Assistant Attorney General Wilson, Joseph J. Connolly, Beatrice Rosenberg, and Sidney M. Glazer.

      Craig G. Davis, by appointment of the Court, 396 U. S. 952, argued the cause and filed a brief for respondent.
   Mr. Justice Douglas

delivered the opinion of the Court.

Respondent, at about 1:30 p. m. on Thursday, March 28, 1968, mailed two 12-pound packages at the post office in Mt. Vernon, Washington, a town some 60 miles from the Canadian border. One package was addressed to a post office box in Van Nuys, California, and the other to a post office box in Nashville, Tennessee. Respondent declared they contained coins. Each package was to be sent airmail registered and each was insured for $10,000, a type of mailing that the parties agree was first class, making them not subject to discretionary inspection.

When the postal clerk told a policeman who happened to be present that he was suspicious of the packages, the policeman at once noticed that the return address on the packages was a vacant housing area of a nearby junior college, and that the license plates of respondent’s car were British Columbia. The policeman called the Canadian police, who called customs in Seattle. At 3 o’clock that afternoon customs called Van Nuys and learned that the addressee of one package was under investigation in Van Nuys for trafficking in illegal coins. Due to the time differential, Seattle customs was unable to reach Nashville until the following morning, March 29, when Seattle was advised that the second addressee was also being investigated for the same crime. A customs official in Seattle thereupon filed an affidavit for a search warrant for both packages with a United States commissioner, who issued the search warrant at 4 p. m., and it was executed in Mt. Vernon at 6:30 p. m., 2% hours later. Thereupon the packages were opened, inspected, resealed, and promptly sent on their way.

Other evidence showed that respondent had brought the two packages in from Canada without declaring them. He was tried for illegally importing gold coins in violation of 18 U. S. C. § 545 and found guilty and sentenced and fined. On appeal, the Court of Appeals reversed, holding that the coins were improperly admitted in evidence because a timely warrant had not been obtained. 414 F. 2d 758. The case is here on a petition for a writ of certiorari, 396 U. S. 885. We reverse.

It has long been held that first-class mail such as letters and sealed packages subject to letter postage— as distinguished from newspapers, magazines, pamphlets, and other printed matter — is free from inspection by-postal authorities, except in the manner provided by the Fourth Amendment. As stated in Ex parte Jackson, 96 U. S. 727, 733, decided in 1878:

“Letters and sealed packages of this kind in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles. The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be. Whilst in the mail, they can only be opened and examined under like warrant, issued upon similar oath or affirmation, particularly describing the thing to be seized, as is required when papers are subjected to search in one’s own household. No law of Congress can place in the hands of officials connected with the postal service any authority to invade the secrecy of letters and such sealed packages in the mail; and all regulations adopted as to mail matter of this kind must be in subordination to the great principle embodied in the fourth amendment of the Constitution.”

The course of events since 1878 has underlined the relevance and importance of the Post Office to our constitutional rights. Mr. Justice Holmes in Milwaukee Pub. Co. v. Burleson, 255 U. S. 407, 437 (dissenting opinion), said that “the use of the mails is almost as much a part of free speech as the right to use our tongues.” We have emphasized over and over again that while Congress may classify the mail and fix the charges for its carriage, it may not set up regimes of censorship over it, Hannegan v. Esquire, Inc., 327 U. S. 146, or encumber its flow by setting “administrative officials astride the flow of mail to inspect it, appraise it, write the addressee about it, and await a response before dispatching the mail” to him. Lamont v. Postmaster General, 381 U. S. 301, 306. Yet even first-class mail is not beyond the reach of all inspection; and the sole question here is whether the conditions for its detention and inspection had been satisfied. We think they had been.

The nature and weight of the packages, the fictitious return address, and the British Columbia license plates of respondent who made the mailings in this border town certainly justified detention, without a warrant, while an investigation was made. The “protective search for weapons” of a suspect which the Court approved in Terry v. Ohio, 392 U. S. 1, 20-27, even when probable cause for an arrest did not exist, went further than we need go here. The only thing done here on the basis of suspicion was detention of the packages. There was at that point no possible invasion of the right “to be secure” in the “persons, houses, papers, and effects” protected by the Fourth Amendment against “unreasonable searches and seizures.” Theoretically — and it is theory only that respondent has on his side — detention of mail could at some point become an unreasonable seizure of “papers” or “effects” within the meaning of the Fourth Amendment. Detention for 1% hours — from 1:30 p. m. to 3 p. m. — for an investigation certainly was not excessive; and at the end of that time probable cause existed for believing that the California package was part of an illicit project. A warrant could have been obtained that day for the one package; yet the mystery of the other package remained unsolved and federal officials in Tennessee could not be reached because of the time differential. The next morning they were reached and it was learned that the second package was also probably part of an illicit project. By 4 p. m. — or 26% hours after the mailing in Mt. Vernon — a search warrant was obtained in Seattle and at 6:30 p. m., or 29 hours after the mailing, the search warrant reached Mt. Vernon, a speedy transmission considering the rush-hour time of day and the congested highway.

No interest protected by the Fourth Amendment was invaded by forwarding the packages the following day rather than the day when they were deposited. The significant Fourth Amendment interest was in the privacy of this first-class mail; and that privacy was not disturbed or invaded until the approval of the magistrate was obtained.

The rule of our decisions certainly is not that first-class mail can be detained 29 hours after mailing in order to obtain the search warrant needed for its inspection. We only hold that on the facts of this case— the nature of the mailings, their suspicious character, the fact that there were two packages going to separate destinations, the unavoidable delay in contacting the more distant of the two destinations, the distance between Mt. Vernon and Seattle — a 29-hour delay between the mailings and the service of the warrant cannot be said to be “unreasonable” within the meaning of the Fourth Amendment. Detention for this limited time was, indeed, the prudent act rather than letting the packages enter the mails and then, in case the initial suspicions were confirmed, trying to locate them en route and enlisting the help of distant federal officials in serving the warrant.

Reversed.

       39 CFR §131.2 describes “first class” mail as “matter closed against postal inspection,” which follows the definition in 39 U. S. C. §4251 (a).

       The question as to the right of the addressee to stop deliveries is a separate and distinct one. See No. 399, Rowan v. Post Office, post, p. 728.