text:
    BOARD OF PUBLIC WORKS OF MARYLAND et al. v. HORACE MANN LEAGUE OF THE UNITED STATES OF AMERICA, INC., et al.
    No. 473.
    Decided November 14, 1966.

      Thomas B. Finan, former Attorney General of Maryland, for' the Board of Public Works of Maryland, and William L. Marbury for Saint Joseph College et al., petitioners in No. 473.

      Leo Pfeffer for appellants in No. 590.

      Robert C. Murphy, Attorney General of Maryland, and Edward L. Blanton, Jr., Assistant Attorney General, for the Board of Public Works of Maryland, and Parsons Newman for Hood College, appellees in No. 590.

      John Holt Myers for the Association of American Colleges, as amicus curiae, in support of the petition in No. 473.

      Together with No. 590, Horace Mann League of the United States of America, Inc., et al. v. Board of Public Works of Maryland et al., on appeal from the same court.

   Per Curiam.

The petition for a writ of certiorari in No. 473 is denied. The motion to dismiss in No. 590 is granted and the appeal is dismissed.

Mr. Justice Harlan and Mr. Justice Stewart are of the opinion that in No. 473 certiorari should be granted and the case set for plenary consideration, and that in No. 590 probable jurisdiction should be noted and the case set down for oral argument.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    HALL v. MISSISSIPPI.
    No. 672,
    Misc.
    Decided November 14, 1966.
   Per Curiam.

The appeal is dismissed.

The Chief Justice, Mr. Justice Harlan, and Mr. Justice White are of the opinion that the appeal should be dismissed for want of jurisdiction.

Mr. Justice Douglas and Mr. Justice Fortas are of the opinion that probable jurisdiction should be noted.


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

text:
    BANK OF MARIN v. ENGLAND, TRUSTEE IN BANKRUPTCY.
    No. 63.
    Argued October 20, 1966.
    Decided November 21, 1966.

      Edgar B. Washburn argued the cause for petitioner. With him on the briefs were Carlos R. Freitas and Bryan R. McCarthy.

      Thomas B. Donovan argued the cause for respondent. With him on the brief was John Walton Dinkelspiel.

      John P. Austin filed a brief for the California Bankers Association, as amicus curiae, urging reversal.
   Mr. Justice Douglas

delivered the opinion of the Court.

The question presented by this case is whether a bank which honored checks of a depositor drawn before its bankruptcy but presented for payment after it had filed -a voluntary petition in bankruptcy, is liable to the trustee for the amount of the checks paid where the bank had no knowledge or notice of the proceeding. The trustee applied to the referee for a turnover order requiring petitioner bank to pay to the trustee the amount of the checks and in the alternative asking the same relief against the payee. The referee determined that petitioner and the payee were jointly liable to the trustee. The District Court affirmed. Only petitioner appealed and the Court of Appeals affirmed the District Court. 352 F. 2d 186. We granted certiorari because of the importance of the question presented. Cf. Rosenthal v. Guaranty Bank & Trust Co., 139 F. Supp. 730; Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306.

I.

We were advised on oral argument that the joint judgment rendered against petitioner, the bank, and the payee of the checks was paid in full by the payee and that at present respondent’s sole financial interest in this litigation is protection against imposition of costs under our Rule 57. It is therefore suggested that the case is moot. We do not agree. Whatever might be the result if costs alone were involved (cf. Heitmuller v. Stokes, 256 U. S. 359, 362) this case should not be dismissed. We are advised that the payee has paid the joint judgment and has filed with the bankruptcy court and served on petitioner a demand for contribution from it respecting sums paid in satisfaction of the judgment. Thus petitioner is still subject to a suit because of the original judgment as to its liability. We would, therefore, strain the concepts of mootness if we required petitioner to start all over again when the payee sues it for contribution.

rH hH

Section 70a of the Bankruptcy Act, 52 Stat. 879, 11 IT. S. C. § 110 (a), provides that a trustee in bankruptcy is vested “by operation of law” with the title of the bankrupt as of the date of the filing of the petition to described kinds of property “including rights of action.” § 70a (5). But we do not agree with the Court of Appeals that the bankrupt’s checking accounts are instantly frozen in the absence of knowledge or notice of the bankruptcy on the part of the drawee. The trustee succeeds only to such rights as the bankrupt possessed; and the trustee is subject to all claims and defenses which might have been asserted against the bankrupt but for the fifing of the petition. See Zartman v. First National Bank, 216 U. S. 134, 138. The relationship of bank and depositor is that of debtor and creditor, founded upon contract. The bank has the right and duty under that contract to honor checks of its depositor properly drawn and presented (Allen v. Bank of America, 58 Cal. App. 2d 124, 127, 136 P. 2d 345, 347; Weaver v. Bank of America, 59 Cal. 2d 428, 431, 380 P. 2d 644, 647; and see Anderson National Bank v. Luckett, 321 U. S. 233), absent a revocation that gives the bank notice prior to the time the checks are accepted or paid by the bank. See Hiroshima v. Bank of Italy, 78 Cal. App. 362, 369, 248 P. 947, 950. The Court of Appeals held that the bankruptcy of a drawer operates without more as a revocation of the drawee’s authority. 352 F. 2d, at 191. But that doctrine is a harsh one that runs against the grain of our decisions requiring notice before a person is deprived of property (Mullane v. Central Hanover Bank & Trust Co., supra, at 314-318; Walker v. City of Hutchinson, 352 U. S. 112; Schroeder v. City of New York, 371 U. S. 208), a principle that has been recognized and applied in proceedings under the Bankruptcy Act. New York v. New York, N. H. & H. R. Co., 344 U. S. 293, 296-297. The kind of notice required is one “reasonably calculated, under all the circumstances, to apprise the interested parties of the pendency of the action.” Mullane v. Central Hanover Bank & Trust Co., supra, at 314. We cannot say that the act of filing a voluntary petition in bankruptcy per se is reasonably calculated to put the bank on notice. Absent revocation by the drawer or his trustee or absent knowledge or notice of the bankruptcy by the bank, the contract between the bank and the drawer remains unaffected by the bankruptcy and the right and duty of the bank to pay duly presented checks remain as before. In such circumstances the trustee acquires no rights in the checking account greater than the bankrupt himself.

Section 70d (5), 52 Stat. 882, 11 U. S. C. § 110 (d)(5), provides, with exceptions not relevant here, that “no transfer by or in behalf of the bankrupt after the date of bankruptcy shall be valid against the trustee.” And in case of a voluntary petition (with exceptions not material here) the filing operates as an adjudication. § 18f, 73 Stat. 109, 11 U. S. C. § 41 (f). It is therefore argued with force that payment by the drawee of a drawer bankrupt’s checks after the date of that filing is a “transfer” within the meaning of § 70d (5). Yet we do not read these statutory words with the ease of a computer. There is an overriding consideration that equitable principles govern the exercise of bankruptcy jurisdiction. Section 2a, 52 Stat. 842, 11 U. S. C. § 11 (a); Pepper v. Litton, 308 U. S. 295, 304-305; Securities & Exchange Commission v. U. S. Realty & Imp. Co., 310 U. S. 434, 455. We have said enough to indicate why it would be inequitable to hold liable a drawee who pays checks of the bankrupt duly drawn but presented after bankruptcy, where no actual revocation of its authority has been made and it has no notice or knowledge of the bankruptcy. The force of §§ 70d (5) and 18f can be maintained by imposing liability on the payee of the checks where he has received a voidable preference or other voidable transfer. The payee is a creditor of the bankrupt, and to make him reimburse the trustee is only to deprive him of preferential treatment and to restore him to the category of a general creditor. To permit the trustee under these circumstances to obtain recovery only against the party that benefited from the transaction is to do equity.

Reversed.

Mr. Justice Harlan,

dissenting.

The Court, in its haste to alleviate an indisputable inequity to the bank, disregards, in my opinion, both the proper principles of statutory construction and the most permanent interests of bankruptcy administration. I must dissent.

The Act itself is unambiguous. Section 70a vests title to the bankrupt's property in the trustee “as of the date of the filing of the petition.” 52 Stat. 879, 11 U. S. C. § 110 (a). Section 70d nonetheless sustains bona fide transfers of the property made after filing and “before adjudication or before a receiver takes possession . . . whichever first occurs. . . .” 52 Stat. 881, 11 U. S. C. § 110 (d). Transactions excluded from the shelter of § 70d are, so far as pertinent, within § 70d (5), which provides that “no [such] transfer by or in behalf of the bankrupt . . . shall be valid against the trustee . . . 52 Stat. 882, 11 U. S. C. § 110 (d)(5). The adjudication of voluntary petitions results by operation of law from filing. § 18f, 73 Stat. 109, 11 U. S. C. § 41(f).

In the situation before us, the remaining issue is accordingly whether this transfer occurred before or after September 26, the day on which Seafoods filed its petition in bankruptcy and was perforce adjudicated bankrupt. I do not understand petitioner to contend, or the Court to suggest that this occurred at a time other than presentment of the checks, October 2. Given the law of California, by which a check is not a pro tanto transfer of the drawer’s rights until presentment, I cannot see that another moment is possible. California Civil Code § 3265e; California Commercial Code § 3409. In sum, I find it unavoidable that the Act’s plain words hold the bank liable to the trustee for the value of its payment on Seafoods’ behalf.

1 do not suggest that this Court should confine its attention to the unadorned terms of the Bankruptcy Act. Nonetheless, where Congress has pointed so unmistakably in one direction, prudence and simple propriety surely require that we examine carefully the impulses which beckon us to another. The Court explains its resolution of this case by two apparently alternative contentions. I am unpersuaded that either permits us to circumvent the Act’s demands.

The Court first intimates, without expressly deciding, that the bank is shielded by its contractual right to a seasonable revocation of its duty to honor checks drawn upon it. The Court vouches for this the doctrine that a trustee in bankruptcy takes rights no wider or more complete than his bankrupt had. It is doubtless true that a trustee is not a bona fide purchaser or encum-brancer, and that he ordinarily assumes the bankrupt’s property subject to existing claims, liens, and equities. Hewit v. Berlin Machine Works, 194 U. S. 296. Unfortunately, these maxims scarcely suffice to decide this case. They are interstitial rules, valid no further than the Act’s positive requirements permit. First National Bank v. Staake, 202 U. S. 141. 4 Collier, Bankruptcy Tf 70.04, at 954.2. The Act in several respects clothes the trustee in powers denied to his bankrupt: A trustee may thus avoid, although his bankrupt may not, transactions deemed fraudulent under the Act, liens obtained and preferential transfers completed within four months of bankruptcy, and statutory liens within the prohibition of § 67c (2). 4 Collier, Bankruptcy ¶[ 70.04, at 957.

The Court does not assert that this transfer is protected by § 70d. I understand it instead to concede that, equitable considerations aside, the bank’s payment is invalid against the trustee. I must conclude that the Court has reasoned that a contractual defense retained against the bankrupt suffices to preclude use of a power expressly conferred upon the trustee. If this is the Court’s meaning, it has traversed both logic and authority, and has emasculated the powers given to trustees under the Act.

The Court’s principal contention seems to be that equitable considerations oblige it to release the bank from liability. Its premise plainly is that equity is here a solvent to which we may appropriately resort; I am unable to accept that premise. This is not a case in which the statute is imprecise. Nor is it a case in which the legislature’s intentions have been misshapen by the statute’s words; even a cursory examination of the history of § 70 will evidence that its terms faithfully reflect Congress’ purposes.

The Act of 1898 vested title to the bankrupt’s property in the trustee at adjudication, but contained nothing to prevent its dissipation in the interval after filing. The courts were therefore left free to devise protective rules to reconcile the competing interests of the estate and of those who dealt with the bankrupt in this period. The fulcrum of those rules was the proposition that a “petition [in bankruptcy] is a caveat to all the world, and in effect an attachment and injunction.” Mueller v. Nugent, 184 U. S. 1, 14. The courts softened its severity by a series of exceptions, either employing or distinguishing it as equity or convenience suggested. The result, as a principal draftsman of the Chandler Act reforms described it, was that “no consistent theory of protected transactions has been developed,” and the situation was “conducive to confusion and uncertainty, with potentialities for argument, ‘bluffing,’ litigation, expense and delay.” The law consisted essentially of “nebulous vagaries.”

The Chandler Act stemmed chiefly from a sustained investigation of these and other problems by the National Bankruptcy Conference. Its members were the Act’s principal draftsmen. The revisions they made to § 70 entirely restructured the basis both of the trustee’s title and of the protection given to transactions which occur after filing. Their purpose, as one of them explained to the Chandler subcommittee, was to provide “a clear statutory basis” to the issues of title and protected transactions, in “lieu of a crazy quilt of contradictory judicial statements.” The effect of their revisions was to define “the full extent to which bona fide transactions with the bankrupt, after bankruptcy, will be protected.”

Adjudication and receivership were plainly expected to mark the perimeters of this protection. Various factors determined this choice. First, none of the several exceptions to Mueller v. Nugent reached transactions which occurred after adjudication. More important, once the draftsmen had elected to vest title in the trustee from filing, they were chiefly anxious to shield debtors from the consequences of unwarranted involuntary petitions. They feared that such a petition might ruin a debtor by inducing others to avoid dealings with him. Section 70d was expected to immunize bona fide transactions after filing, and thus to encourage dealings with the solvent debtor. There is no need for such protection after adjudication. Finally, adjudication and receivership signal the beginning of bankruptcy administration, and they are therefore both appropriate moments at which to forbid all further meddling with the estate.

It is equally plain that the protection offered by § 70d must have been intended principally for involuntary proceedings. There are several indications of this. Most important, the hazard to which the section was chiefly directed, the consequences of an unwarranted petition upon a debtor’s credit, is entirely absent from voluntary proceedings. Thus, the discussion of this problem before the Chandler subcommittee was explicitly confined to involuntary petitions. Further, the protection offered by § 63b, which closely supplements § 70d, extends only to involuntary proceedings. Finally, the draftsmen must surely have known that the adjudication of voluntary petitions ordinarily followed quickly and routinely after filing. It was certainly not unknown for adjudication to occur on the day of filing. The draftsmen could only have intended that any protection given in voluntary proceedings by § 70d be fleeting and minimal.

In short, § 70 was tailored to provide carefully measured protection to bona fide transfers. It was intended to preclude further confusion and uncertainty. There is every indication that its terms faithfully reflect its purposes.

I fully sympathize with the discomfort of the bank’s position, but I cannot escape the impact of what Congress has done. The Court has not found § 70 constitutionally impermissible. It has simply measured the statute by the standard of its own conscience, and concluded that equity requires a result which the statute forbids. I had thought it well settled that equity may supplement, but may never supersede, the Act. 1 Collier, Bankruptcy ¶ 2.09, at 171-172. The Act’s language is neither imprecise nor infelicitous; I can therefore see no room for the interposition of equity.

More important, the Court today permits the dilution of the Chandler amendments to § 70. The Court’s disposition of this case may be taken to suggest that whenever equity is thought strongly to demand relief from the strictures of the Act, further exceptions may be appropriately created to the statutory scheme. I fear that the Court may have set in motion once more the protracted process which before 1938 resulted in “confusion and uncertainty,” “litigation, expense and delay.” If so, the Chandler amendments will have had no more permanent result than to wipe the judicial slate momentarily clean.

I would affirm the judgment of the Court of Appeals.

Mr. Justice Fortas.

I would vacate the judgment. I believe that we do not have before us a case or controversy between the parties of record.

Respondent, the trustee in bankruptcy, has no substantial stake in the outcome of this litigation and is not an adversary in the usual sense. On February 24, 1964, the referee in bankruptcy ruled that both the petitioner bank and the payee on the bankrupt's checks were liable to the trustee. On May 19, 1964, the payee paid the trustee in full and has not been a party to this litigation since that time. Having received full payment, the trustee has no interest in the litigation except professional curiosity as to the question of law — and he so apprised the District Court, the Court of Appeals, and this Court. See Brief for Respondent, p. 2. See also Petition for Certiorari, p. 4. Nevertheless, the bank, also eager for an answer to this intriguing legal problem and facing a claim from the payee for contribution, continued the litigation against the trustee, and the trustee obligingly went along. The respondent trustee’s only financial interest is admittedly confined to the question of court costs, incurred as a volunteer.

There are two reasons of substance why the Court should not, in this case, decide the important statutory question presented. First, this is not an adversary proceeding, and has not been one since respondent received full payment in 1964. It is basic to our adversary system to insist that the courts have the benefit of the contentions of opposing parties who have a material, and not merely an abstract, interest in the conflict. Adverse parties — adverse in reality and not merely in positions taken — are absolutely necessary. See, e. g., Muskrat v. United States, 219 U. S. 346, 361-363 (1911); California v. San Pablo & Tulare R. Co., 149 U. S. 308, 313-314 (1893); South Spring Gold Co. v. Amador Gold Co., 145 U. S. 300, 301-302 (1892). Cf. Aetna Life Ins. Co. v. Haworth, 300 U. S. 227, 240-242 (1937) (Hughes, C. J.); Fairchild v. Hughes, 258 U. S. 126, 129-130 (1922) (Brandeis, J.).

Second, this is a peculiar case in which to depart from the settled rule. The effect of the decision today is to strip the payee of its asserted right to contribution, although the payee is not before this Court, and was not before the Court of Appeals or the District Court. The question of the relative rights and obligations of the payee and the bank ought to be resolved in litigation in which both participate. Cf. Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 314 (1950). The impact of today’s decision upon a party not present confirms the wisdom of the rule “that when there is no actual controversy, involving real and substantial rights, between the parties to the record, the case will be dismissed.” Little v. Bowers, 134 U. S. 547, 557. See also Lord v. Veazie, 8 How. 251, 255.

I would vacate the judgment below and remand with direction to dismiss. See Mechling Barge Lines v. United States, 368 U. S. 324, 329-330 (1961); United States v. Munsingwear, 340 U. S. 36, 39-41 (1950).

       Like the Court, I believe that this case is not moot. In addition to what has been said by the majority, compare Fishgold v. Sullivan Drydock & Repair Corp., 328 U. S. 275, and Aeronautical Industrial Dist. Lodge v. Campbell, 337 U. S. 521.

       It is true that the negotiability proviso to § 70d (5) has once been held to protect a bank in analogous circumstances. Rosenthal v. Guaranty Bank & Trust Co., 139 F. Supp. 730. The proviso’s legislative history throws little light on its intended scope. It appears inapplicable here. First, presentment is not strictly a negotiation. Second and more important, other constructions are more consonant with the balance of § 70d. Cf. 70 Harv. L. Rev. 548, 550. 4 Collier, Bankruptcy ¶ 70.68, at 1502, n. 3 (14th ed. 1964). I do not understand the Court to rely upon the proviso.

       This Court had held that despite the cleavage at adjudication, the trustee took the title as it was at filing. Everett v. Judson, 228 U. S. 474. The situation is summarized in McLaughlin, Aspects of the Chandler Bill to Amend the Bankruptcy Act, 4 U. Chi. L. Rev. 369, 383.

       McLaughlin, Amendment of the Bankruptcy Act (pts. 1 & 2), 40 Harv. L. Rev. 341, 583, at 615. The same conclusions are reached by Weinstein, The Bankruptcy Law of 1938, at 161.

       4 Collier, Bankruptcy ¶ 70.66, at 1495.

       A brief history of the Conference’s work may be found in McLaughlin, 4 U. Chi. L. Rev., at 375.

       Hearing before the House Committee on the Judiciary on H. R. 6439, 75th Cong., 1st Sess., 212. Professor McLaughlin quoted from his article in 40 Harv. L. Rev. 341. He subsequently acknowledged that § 70 would permit an area in which the courts could continue to balance the competing interests of the parties. Ibid. In light of the importance attached to adjudication as a line of cleavage, and the comparative insignificance intended for § 70d in voluntary proceedings, see infra, I do not believe that this acknowledgment can be taken to reach this case.

       4 Collier, Bankruptcy ¶ 70.67, at 1500.

       4 Collier, Bankruptcy ¶ 70.66, at 1498. In the one apparent exception, Jones v. Springer, 226 U. S. 148, a dredge had been placed in the hands of a receiver under an attachment levied before filing. The Court concluded that this sufficed to avoid the ordinary limitations imposed by adjudication.

       Hearing before the House Committee on the Judiciary on H. R. 6439, 75tfi Cong., 1st Sess., 211. Professor McLaughlin described this to the subcommittee as “the next most pressing problem.” He concluded that “[w]e have put in a provision [70d] to cover that [the problem of unwarranted petitions].” His explanation to the subcommittee of §70d was based entirely on this problem. There is of course evidence that the draftsmen also expected to alleviate unfairness which § 70a might otherwise produce. See Analysis of H. R. 12889, House Committee on the Judiciary, 74th Cong., 2d Sess., 230 (Comm. Print 1936).

       MacLachlan, Handbook of the Law of Bankruptcy 346.

       Hearing before the House Committee on the Judiciary on H. R. 6439, 75th Cong., 1st Sess., 211.

       52 Stat. 873, 11 U. S. C. § 103(b). Section 63b provides that “In the interval after the filing of an involuntary petition and before the appointment of a receiver or the adjudication, whichever first occurs, a claim arising in favor of a creditor by reason of property transferred or services rendered by the creditor to the bankrupt for the benefit of the estate shall be provable to the extent of the value of such property or services.”

       MacLachlan, Handbook of the Law of Bankruptcy 40.

       See, e. g., New York County National Bank v. Massey, 192 U. S. 138.

       Further, the 1959 amendments to § 18, by which adjudication results by operation of law from filing, were adopted upon the recommendation of the Judicial Conference and its Committee on Bankruptcy Administration. Annual Report of the Proceedings of the Judicial Conference, 1958, p. 28. The bill received the endorsement of the National Bankruptcy Conference. H. R. Rep. No. 241, 86th Cong., 1st Sess., 2. It therefore seems quite improbable that the 1959 amendments could have inadvertently excluded voluntary proceedings from the scope of § 70d.

       Judge Soper’s reasoning in Lake v. New York Life Insurance Co., 218 F. 2d 394, 399, seems entirely persuasive: “Whether the line which has been drawn is the best possible solution of the problem is not for the courts to say. The line has in fact been drawn by competent authority and it is no longer necessary for the courts to make the attempt, which has not been conspicuously successful in the past, to decide cases on the facts as they arise See also Kohn v. Myers, 266 F. 2d 353.

       I cannot in any event accept petitioner’s contention that these provisions have denied it due process. In exercise of its express constitutional authority over bankruptcy, Art. I, § 8, Congress has attached great importance to swift and efficient administration; to this purpose it devised a statutory scheme by which it balanced the competing rights of the interested parties. Congress’ purposes are permissible, and the scheme it has adopted is reasonably calculated to achieve those purposes. In this context I cannot say that the Constitution requires that all whose rights may be reached by bankruptcy proceedings must first have actual notice of them. Cf. Hanover National Bank v. Mouses, 186 U. S. 181.

       An unbroken line of eases establishes the rule that controversy as to costs alone does not salvage an otherwise moot case. See, e. g., Walling v. Reuter Co., 321 U. S. 671, 677 (1944); United States v. Anchor Coal Co., 279 U. S. 812 (1929); Alejandrino v. Quezon, 271 U. S. 528, 533-536 (1926); Brownlow v. Schwartz, 261 U. S. 216 (1923); Heitmuller v. Stokes, 256 U. S. 359, 362-363 (1921); Robertson & Kirkham, Jurisdiction of the Supreme Court of the United States § 274 (Wolfson & Kurland ed.); 6 Moore, Federal Practice ¶ 54.70 [5], at 1311 {2d ed. 1965).

       Upon vacation of the judgment below, the bank would be free to relitigate with the payee the question of its own liability, since the bank was in no respect responsible for the manner in which this case became a nonadversary proceeding. See United States v. Munsingwear, 340 U. S. 36, 39-40 & n. 1 (1950).


text:
    BADGLEY et al. v. HARE, SECRETARY OF STATE OF MICHIGAN, et al.
    No. 505.
    Decided November 21, 1966.

      William T. Gossett for appellants.

      Frank J. Kelley, Attorney General of Michigan, Robert A. Derengoski, Solicitor General, and Curtis G. Beck, Assistant Attorney General, for Hare; Theodore Sachs for Scholle et al., appellees.
   Per Curiam.

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


text:
    BOYDEN v. CALIFORNIA.
    No. 271,
    Misc.
    Decided November 21, 1966.
    Appellant pro se.

      Thomas C. Lynch, Attorney General of California, William E. James, Assistant Attorney General, and Jack K. Weber, Deputy Attorney 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:
    BATTAGLIA et al., dba PRODUCE TRANSPORT DISPATCH v. UNITED STATES et al.
    No. 564.
    Decided November 21, 1966.

      Earle V. White for appellants.

      Solicitor General Marshall, Assistant Attorney General Turner, Howard E. Shapiro, Robert Ginnane and Betty Jo Christian for the United States et al. Randall B. Kester, John F. Weisser, Jr., James W. Nisbet, J. D. Feeney and Ed White for railroad appellees.
   Per Curiam.

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

Mr. Justice Harlan is of the opinion that probable jurisdiction should be noted and the case set for oral argument.


author: Mr. Chief Justice Warren

text:
    BOND et al. v. FLOYD et al.
    No. 87.
    Argued November 10, 1966.
    Decided December 5, 1966.

      Howard Moore, Jr., and Leonard B. Boudin argued the cause for appellants. With them on the briefs was Victor Rabinowitz.

      Arthur K. Bolton, Attorney General of Georgia, argued the cause for appellees. With him on the brief were William L. Harper and Alfred L. Evans, Jr., Assistant Attorneys General, and Paul L. Hanes, Deputy Assistant Attorney General.
    Briefs of amici curiae, urging reversal, were filed by Robert L. Carter for the National Association for the Advancement of Colored People; Melvin L. Wulf and

      Charles Morgan, Jr., for the American Civil Liberties Union et al.; and by Joseph B. Robison for the American Jewish Congress.
   Mr. Chief Justice Warren

delivered the opinion of the Court.

The question presented in this case is whether the Georgia House of Representatives may constitutionally exclude appellant Bond, a duly elected Representative, from membership because of his statements, and statements to which he subscribed, criticizing the policy of the Federal Government in Vietnam and the operation of the Selective Service laws. An understanding of the circumstances of the litigation requires a complete presentation of the events and statements which led to this appeal.

Bond, a Negro, was elected on June 16, 1965, as the Representative to the Georgia House of Representatives from the 136th House District. Of the District’s 6,500 voters, approximately 6,000 are Negroes. Bond defeated his opponent, Malcolm Dean, Dean of Men at Atlanta University, also a Negro, by a vote of 2,320 to 487.

On January 6, 1966, the Student Nonviolent Coordinating Committee, a civil rights organization of which Bond was then the Communications Director, issued the following statement on American policy in Vietnam and its relation to the work of civil rights organizations in this country:

“The Student Nonviolent Coordinating Committee has a right and a responsibility to dissent with United States foreign policy on an issue when it sees fit. The Student Nonviolent Coordinating Committee now states its opposition to United States’ involvement in Viet Nam on these grounds:
“We believe the United States, government has been deceptive in its claims of concern for freedom of the Vietnamese people, just as the government has been deceptive in claiming concern for the freedom of colored people in such other countries as the Dominican Republic, the Congo, South Africa, Rhodesia and in the United States itself.
“We, the Student Nonviolent Coordinating Committee, have been involved in the black people’s struggle for liberation and self-determination in this country for the past five years. Our work, particularly in the South, has taught us that the United States government has never guaranteed the freedom of oppressed citizens, and is not yet truly determined to end the rule of terror and oppression within its own borders.
“We ourselves have often been victims of violence and confinement executed by United States government officials. We recall the numerous persons who have been murdered in the South because of their efforts to secure their civil and human rights, and whose murderers have been allowed to escape penalty for their crimes.
“The murder of Samuel Young in Tuskegee, Ala., is no different than the murder of peasants in Viet Nam, for both Young and the Vietnamese sought, and are seeking, to secure the rights guaranteed them by law. In each case the United States government bears a great part of the responsibility for these deaths.
“Samuel Young was murdered because United States law is not being enforced. Vietnamese are murdered because the United States is pursuing an aggressive policy in violation of international law. The United States is no respecter of persons or law when such persons or laws run counter to its needs and desires.
“We recall the indifference, suspicion and outright hostility with which our reports of violence have been met in the past by government officials.
“We know that for the most part, elections in this country, in the North as well as the South, are not free. We have seen that the 1965 Voting Rights Act and the 1964 Civil Rights Act have not yet been implemented with full federal power and sincerity.
“We question, then, the ability and even the desire of the United States government to guarantee free elections abroad. We maintain that our country’s cry of 'preserve freedom in the world’ is a hypocritical mask behind which it squashes liberation movements which are not bound, and refuse to be bound, by the expediencies of United States cold war policies.
“We are in sympathy with, and support, the men in this country who are unwilling to respond to a military draft which would compel them to contribute their lives to United States aggression in Viet Nam in the name of the 'freedom’ we find so false in this country.
“We recoil with horror at the inconsistency of a supposedly ‘free’ society where responsibility to freedom is equated with the responsibility to lend oneself to military aggression. We take note of the fact that 16 per cent of the draftees from this country are Negroes called on to stifle the liberation of Viet Nam, to preserve a ‘democracy’ which does not exist for them at home.
“We ask, where is the draft for the freedom fight in the United States?
“We therefore encourage those Americans who prefer to use their energy in building democratic forms within this country. We believe that work in the civil rights movement and with other human relations organizations is a valid alternative to the draft. We urge all Americans to seek this alternative, knowing full well that it may cost their lives— as painfully as in Viet Nam.”

On the same day that this statement was issued, Bond was interviewed by telephone by a reporter from a local radio station, and, although Bond had not participated in drafting the statement, he endorsed the statement in these words:

“Why, I endorse it, first, because I like to think of myself as a pacifist and one who opposes that war and any other war and eager and anxious to encourage people not to participate in it for any reason that they choose; and secondly, I agree with this statement because of the reason set forth in it— because I think it is sorta hypocritical for us to maintain that we are fighting for liberty in other places and we are not guaranteeing liberty to citizens inside the continental United States.
“Well, I think that the fact that the United States Government fights a war in Viet Nam, I don’t think that I as a second class citizen of the United States have a requirement to support that war. I think my responsibility is to oppose things that I think are wrong if they are in Viet Nam or New York, or Chicago, or Atlanta, or wherever.”

When the interviewer suggested that our involvement in Vietnam was because “if we do not stop Communism there that it is just a question of where will we stop it next,” Bond replied:

“Oh, no, I’m not taking a stand against stopping World Communism, and I’m not taking a stand in favor of the Viet Cong. What I’m saying that is, first, that I don’t believe in that war. That particular war. I’m against all war. I’m against that war in particular, and I don’t think people ought to participate in it. Because I’m against war, I’m against the draft. I think that other countries in the World get along without a draft — England is one — and I don’t see why we couldn’t, too.
“. . . I’m not about to justify that war, because it’s stopping International Communism, or whatever — you know, I just happen to have a basic disagreement with wars for whatever reason they are fought— . . . [F] ought to stop International Communism, to promote International Communism, or for whatever reason. I oppose the Viet Cong fighting in Viet Nam as much as I oppose the United States fighting in Viet Nam. I happen to five in the United States. If I lived in North Viet Nam I might not have the same sort of freedom of expression, but it happens that I live here — not there.”

The interviewer also asked Bond if he felt he could take the oath of office required by the Georgia Constitution, and Bond responded that he saw nothing inconsistent between his statements and the oath. Bond was also asked whether he would adhere to his statements if war were declared on North Vietnam and if his statements might become treasonous. He replied that he did not know “if I’m strong enough to place myself in a position where I’d be guilty of treason.”

Before January 10, 1966, when the Georgia House of Representatives was scheduled to convene, petitions challenging Bond’s right to be seated were filed by 75 House members. These petitions charged that Bond’s statements gave aid and comfort to the enemies of the United States and Georgia, violated the Selective Service laws, and tended to bring discredit and disrespect on the House. The petitions further contended that Bond’s endorsement of the SNCC statement “is totally and completely repugnant to and inconsistent with the mandatory oath prescribed by the Constitution of Georgia for a Member of the House of Representatives to take before taking his seat.” For the same reasons, the petitions asserted that Bond could not take an oath to support the Constitution of the United States. When Bond appeared at the House on January 10 to be sworn in, the clerk refused to administer the oath to him until the issues raised in the challenge petitions had been decided.

Bond filed a response to the challenge petitions in which he stated his willingness to take the oath and argued that he was not unable to do so in good faith. He further argued that the challenge against his seating had been filed to deprive him of his First Amendment rights, and that the challenge was racially motivated. A special committee was appointed to report on the challenge, and a hearing was held to determine exactly what Bond had said and the intentions with which he had said it.

At this hearing, the only testimony given against Bond was that which he himself gave the committee. Both, the opponents Bond had defeated in becoming the Representative of the 136th District testified to his good character and to his loyalty to the United States. A recording of the interview which Bond had given to the reporter after the SNCC statement was played, and Bond was called to the stand for cross-examination. He there admitted his statements and elaborated his views. He stated that he concurred in the SNCC statement “without reservation,” and, when asked if he admired the courage of persons who burn their draft cards, responded:

“I admire people who take an action, and I admire people who feel strongly enough about their convictions to take an action like that knowing the consequences that they will face, and that was my original statement when asked that question.
“I have never suggested or counseled or advocated that any one other person burn their draft card. In fact, I have mine in my pocket and will produce it if you wish. I do not advocate that people should break laws. What I simply try to say was that I admired the courage of someone who could act on his convictions knowing that he faces pretty stiff consequences.”

Tapes of an interview Bond had given the press after the clerk had refused to give him the oath were also heard by the special committee. In this interview, Bond stated:

“I stand before you today charged with ehtering into public discussion on matters of National interest. I hesitate to offer explanations for my actions or deeds where no charge has been levied against me other than the charge that I have chosen to speak my mind and no explanation is called for, for no member of this House, has ever, to my knowledge, been called upon to explain his public statements for public postures as a prerequisite to admission to that Body. I therefore, offer to my constituents a statement of my views. I have not counselled burning draft cards, nor have I burned mine. I have suggested that congressionally outlined alternatives to military service be extended to building democracy at home. The posture of my life for the past five years has been calculated to give Negroes the ability to participate in formulation of public policies. The fact of my election to public office does not lessen my duty or desire to express my opinions even when they differ from those held by others. As to the current controversy because of convictions that I have arrived at through examination of my conscience I have decided I personally cannot participate in war.
“I stand here with intentions to take an oath— that oath they just took in there — that will dispel any doubts about my convictions or loyalty.”

The special committee gave general approval in its report to the specific charges in the challenge petitions that Bond’s endorsement of the SNCC statement and his supplementary remarks showed that he “does not and will not” support the Constitutions of the United States and of Georgia, that he “adheres to the enemies of the . . . State of Georgia” contrary to the State Constitution, that he gives aid and comfort to the enemies of the United States, that his statements violated the Universal Military Training and Service Act, § 12, 62 Stat. 622, 50 U. S. C. App. § 462, and that his statements “are reprehensible and are such as tend to bring discredit to and disrespect of the House.” On the same day the House adopted the committee report without findings and without further elaborating Bond’s lack of qualifications, and resolved by a vote of 184 to 12 that “Bond shall not be allowed to take the oath of office as a member of the House of Representatives and that Representative-Elect Julian Bond shall not be seated as a member of the House of Representatives.”

Bond then instituted an action in the District Court for the Northern District of Georgia for injunctive relief and a declaratory judgment that the House action was unauthorized by the Georgia Constitution and violated Bond’s rights under the First Amendment. A three-judge District Court was convened under 28 U. S. C. § 2281. All three members of the District Court held that the court had jurisdiction to decide the constitutionality of the House action because Bond had asserted substantial First Amendment rights. On the merits, however, the court was divided.

Judges Bell and Morgan, writing for the majority of the court, addressed themselves first to the question of whether the Georgia House had power under state law to disqualify Bond based on its conclusion that he could not sincerely take the oath of office. They reasoned that separation-of-powers principles gave the Legislature power to insist on qualifications in addition to those specified in the State Constitution. The majority pointed out that nothing in the Georgia Constitution limits the qualifications of the legislators to those expressed in the constitution.

Having concluded that the action of the Georgia House was authorized by state law, the court considered whether Bond’s disqualification violated his constitutional right of freedom of speech. It reasoned that the decisions of this Court involving particular state political offices supported an attitude of restraint in which the principles of separation of powers and federalism should be balanced against the alleged deprivation of individual constitutional rights. On this basis, the majority below fashioned the test to be applied in this case as being whether the refusal to seat Bond violated procedural or what it termed substantive due process. The court held that the hearing which had been given Bond by the House satisfied procedural due process. As for what it termed the question of substantive due process, the majority concluded that there was a rational eviden-tiary basis for the ruling of the House. It reasoned that Bond's right to dissent as a private citizen was limited by his decision to seek membership in the Georgia House. Moreover, the majority concluded, the SNCC statement and Bond's related remarks went beyond criticism of national policy and provided a rational basis for a conclusion that the speaker could not in good faith take an oath to support the State and Federal Constitutions:

“A citizen would not violate his oath by objecting to or criticizing this policy or even by calling it deceptive and false as the statement did.
“But the statement does not stop with this. It is a call to action based on race; a call alien to the concept of the pluralistic society which makes this nation. It aligns the organization with ‘. . . colored people in such other countries as the Dominican Republic, the Congo, South Africa, Rhodesia . . . .’ It refers to its involvement in the black people’s struggle for liberation and self-determination . . . .' It states that ‘Vietnamese are murdered because the United States is pursuing an aggressive policy in violation of international law.’ It alleges that Negroes, referring to American servicemen, are called on to stifle the liberation of Viet Nam.
“The call to action, and this is what we find to be a rational basis for the decision which denied Mr. Bond his seat, is that language which states that SNCC supports those men in this country who are unwilling to respond to a military draft.”

Chief Judge Tuttle dissented. He reasoned that the question of the power of the Georgia House under the State Constitution to disqualify a Representative under these circumstances had never been decided by the state courts, and that federal courts should construe state law, if possible, so as to avoid unnecessary federal constitutional issues. Since Bond satisfied all the stated qualifications in the State Constitution, Chief Judge Tuttle concluded that his disqualification was beyond the power of the House as a matter of state constitutional law.

Bond appealed directly to this Court from the decision of the District Court under 28 U. S. C. § 1253. While this appeal was pending, the Governor of Georgia called a special election to fill the vacancy caused by Bond’s exclusion. Bond entered this election and won overwhelmingly. The House was in recess, but the Rules Committee held a hearing in which Bond declined to recant his earlier statements. Consequently, he was again prevented from taking the oath of office, and the seat has remained vacant. Bond again sought the seat from the 136th District in the regular 1966 election, and he won the Democratic primary in September 1966, and won an overwhelming majority in the election of November 8, 1966.

The Georgia Constitution sets out a number of specific provisions dealing with the qualifications and eligibility of state legislators. These provide that Representatives shall be citizens of the United States, at least 21 years of age, citizens of Georgia for two years, and residents for one year of the counties from which elected. The Georgia Constitution further provides that no one convicted of treason against the State, or of any crime of moral turpitude, or of a number of other enumerated crimes may hold any office in the State. Idiots and insane persons are barred from office, and no one holding any state or federal office is eligible for a seat in either house. The State Constitution also provides:

“Election, returns, etc.; disorderly conduct.— Each House shall be the judge of the election, returns, and qualifications of its members and shall have power to punish them for disorderly behavior, or misconduct, by censure, fine, imprisonment, or expulsion; but no member shall be expelled, except by a vote of two-thirds of the House to which he belongs.”

These constitute the only stated qualifications for membership in the Georgia Legislature and the State concedes that Bond meets all of them. The Georgia Constitution also requires Representatives to take an oath stated in the Constitution:

“Oath of members. — Each senator and Representative, before taking his seat, shall take the following oath, or affirmation, to-wit: T will support the Constitution of this State and of the United States, and on all questions and measures which may come before me, I will so conduct myself, as will, in my judgment, be most conducive to the interests and prosperity of this State.’ ”

The State points out in its brief that the latter part of this oath, involving the admonition to act in the best interests of the State, was not the standard by which Bond was judged.

The State does not claim that Bond refused to take the oath to support the Federal Constitution, a requirement imposed on state legislators by Art. VI, cl. 3, of the United States Constitution:

“The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Tests shall ever be required as a Qualification to any Office or public Trust under the United States.”

Instead, it argues that the oath provisions of the State and Federal Constitutions constitute an additional qualification. Because under state law the legislature has exclusive jurisdiction to determine whether an elected Representative meets the enumerated qualifications, it is argued that the legislature has power to look beyond the plain meaning of the oath provisions which merely require that the oaths be taken. This additional power is said to extend to determining whether a given Representative may take the oath with sincerity. The State does not claim that it should be completely free of judicial review whenever it disqualifies an elected Representative; it admits that, if a State Legislature excluded a legislator on racial or other clearly unconstitutional grounds, the federal (or state) judiciary would be justified in testing the exclusion by federal constitutional standards. But the State argues that there can be no doubt as to the constitutionality of the qualification involved in this case because it is one imposed on the State Legislatures by Article VI of the United States Constitution. Moreover, the State contends that no decision of this Court suggests that a State may not ensure the loyalty of its public servants by making the taking of an oath a qualification of office. Thus the State argues that there should be no judicial review of the legislature’s power to judge whether a prospective member may conscientiously take the oath required by the State and Federal Constitutions.

We are not persuaded by the State’s attempt to distinguish, for purposes of our jurisdiction, between an exclusion alleged to be on racial grounds and one alleged to violate the First Amendment. The basis for the argued distinction is that, in this case, Bond’s disqualification was grounded on a constitutional standard — the requirement of taking an oath to support the Constitution. But Bond’s contention is that this standard was utilized to infringe his First Amendment rights, and we cannot distinguish, for purposes of our assumption of jurisdiction, between a disqualification under an unconstitutional standard and a disqualification which, although under color of a proper standard, is alleged to violate the First Amendment.

We conclude as did the entire court below that this Court has jurisdiction to review the question of whether the action of the Georgia House of Representatives deprived Bond of federal constitutional rights, and we now move to the central question posed in the case — whether Bond’s disqualification because of his statements violated the free speech provisions of the First Amendment as applied to the States through the Fourteenth Amendment.

The State argues that the exclusion does not violate the First Amendment because the State has a right, under Article VI of the United States Constitution, to insist on loyalty to the Constitution as a condition of office. A legislator of course can be required to swear to support the Constitution of the United States as a condition of holding office, but that is not the issue in this case, as the record is uncontradicted that Bond has repeatedly expressed his willingness to swear to the oaths provided for in the State and Federal Constitutions. Nor is this a case where a legislator swears to an oath pro forma while declaring or manifesting his disagreement with or indifference to the oath. Thus, we do not quarrel with the State’s contention that the oath provisions of the United States and Georgia Constitutions do not violate the First Amendment. But this requirement does not authorize a majority of state legislators to test the sincerity with which another duly elected legislator can swear to uphold the Constitution. Such a power could be utilized to restrict the right of legislators to dissent from national or state policy or that of a majority of their colleagues under the guise of judging their loyalty to the Constitution. Certainly there can be no question but that the First Amendment protects expressions in opposition to national foreign policy in Vietnam and to the Selective Service system. The State does not contend otherwise. But it argues that Bond went beyond expressions of opposition, and counseled violations of the Selective Service laws, and that advocating violation of federal law demonstrates a lack of support for the Constitution. The State declines to argue that Bond’s statements would violate any law if made by a private citizen, but it does argue that even though such a citizen might be protected by his First Amendment rights, the State may nonetheless apply a stricter standard to its legislators. We do not agree.

Bond could not have been constitutionally convicted under 50 U. S. C. App. §462 (a), which punishes any person who “counsels, aids, or abets another to refuse or evade registration.” Bond’s statements were at worst unclear on the question of the means to be adopted to avoid the draft. While the SNCC statement said “We are in sympathy with, and support, the men in this country who are unwilling to respond to a military draft,” this statement alone cannot be interpreted as a call to unlawful refusal to be drafted. Moreover, Bond’s supplementary statements tend to resolve the opaqueness in favor of legal alternatives to the draft, and there is no evidence to the contrary. On the day the statement was issued, Bond explained that he endorsed it “because I like to think of myself as a pacifist and one who opposes that war and any other- war and eager and anxious to encourage people not to participate in it for any reason that they choose.” In the same interview, Bond stated categorically that he did not oppose the Vietnam policy because he favored the Communists; that he was a loyal American citizen and supported the Constitution of the United States. He further stated “I oppose the Viet Cong fighting in Viet Nam as much as I oppose the United States fighting in Viet Nam.” At the hearing before the Special Committee of the Georgia House, when asked his position on persons who burned their draft cards, Bond replied that he admired the courage of persons who “feel strongly enough about their convictions to take an action like that knowing the consequences that they will face.” When pressed as to whether his admiration was based on the violation of federal law, Bond stated:

“I have never suggested or counseled or advocated that any one other person burn their draft card. In fact, I have mine in my pocket and will produce it if you wish. I do not advocate that people should break laws. What I simply try to say was that I admired the courage of someone who could act on his convictions knowing that he faces pretty stiff consequences.”

Certainly this clarification does not demonstrate any incitement to violation of law. No useful purpose would be served by discussing the many decisions of this Court which establish that Bond could not have been convicted for these statements consistently with the First Amendment. See, e. g., Wood v. Georgia, 370 U. S. 375 (1962); Yates v. United States, 354 U. S. 298 (1957); Terminiello v. Chicago, 337 U. S. 1 (1949). Nor does the fact that the District Court found the SNCC statement to have racial overtones constitute a reason for holding it outside the protection of the First Amendment. In fact the State concedes that there is no issue of race in the case.

The State attempts to circumvent the protection the First Amendment would afford to these statements if made by a private citizen by arguing that a State is constitutionally justified in exacting a higher standard of loyalty from its legislators than from its citizens. Of course, a State may constitutionally require an oath to support the Constitution from its legislators which it does not require of its private citizens. But this difference in treatment does not support the exclusion of Bond, for while the State has an interest in requiring its legislators to swear to a belief in constitutional processes of government, surely the oath gives it no interest in limiting its legislators’ capacity to discuss their views of local or national policy. The manifest function of the First Amendment in a representative government requires that legislators be given the widest latitude to express their views on issues of policy. The central commitment of the First Amendment, as summarized in the opinion of the Court in New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964), is that “debate on public issues should be uninhibited, robust, and wide-open." We think the rationale of the New York Times case disposes of the claim that Bond’s statements fell outside the range of constitutional protection. Just as erroneous statements must be protected to give freedom of expression the breathing space it needs to survive, so statements criticizing public policy and the implementation of it must be similarly protected. The State argues that the New York Times principle should not be extended to statements by a legislator because the policy of encouraging free debate about governmental operations only applies to the citizen-critic of his government. We find no support for this distinction in the New York Times case or in any other decision of this Court. The interest of the public in hearing all sides of a public issue is hardly advanced by extending more protection to citizen-critics than to legislators. Legislators have an obligation to take positions on controversial political questions so that their constituents can be fully informed by them, and be better able to assess their qualifications for office; also so they may be represented in governmental debates by the person they have elected to represent them. We therefore hold that the disqualification of Bond from membership in the Georgia House because of his statements violated Bond’s right of free expression under the First Amendment. Because of our disposition of the ease on First Amendment grounds, we need not decide the other issues advanced by Bond and the amici.

The judgment of the District Court is

Reversed.

       The opinion of the District Court is reported at 251 F. Supp. 333 (1966).

        Id., at 344.

        Id., at 345.

       A question was raised in oral argument as to whether this case might not be moot since the session of the House which excluded Bond was no longer in existence. The State has not pressed this argument, and it could not do so, because the State has stipulated that if Bond succeeds on this appeal he will receive back salary for the term from which he was excluded.

       Georgia Const., Art. 3, § 6 (§2-1801, Ga. Code Ann.).

       Georgia Const., Art. 2, § 2 (§2-801, Ga. Code Ann.).

        Ibid.

       Georgia Const., Art. 3, § 4 (§2-1606, Ga. Code Ann.)9

       Georgia Const., Art. 3, § 7 (§2-1901, Ga. Code Ann.).

       Georgia Const., Art. 3, §4 (§2-1605, Ga. Code Ann.).

       See Gomillion v. Lightfoot, 364 U. S. 339 (1960), in which the Court stated: “When a State exercises power wholly within the domain of state interest, it is insulated from federal judicial review. But such insulation is not carried over when state power is used as an instrument for circumventing a federally protected right.” 364 U. S., at 347.

       The pertinent provisions of §462 (a) are as follows:
      “[A]ny person who shall knowingly make, or be a party to the making, of any false statement or certificate regarding or bearing upon a classification or in support of any request for a particular classification, for service under the provisions of this title ... , or rules, regulations, or directions made pursuant thereto, or who otherwise evades or refuses registration or service in the armed forces or any of the requirements of this title ... , or who knowingly counsels, aids, or abets another to refuse or evade registration or service in the armed forces or any of the requirements of this title ... , or of said rules, regulations, or directions, ... or any person or persons who shall knowingly hinder or interfere or attempt to do so in any way, by force or violence or otherwise, with the administration of this title ... or the rules or regulations made pursuant thereto, or who conspires to commit any one or more of such offenses, shall, upon conviction in any district court of the United States of competent jurisdiction, be punished by imprisonment for not more than five years or a fine of not more than $10,000, or by both such fine and imprisonment . . . .”

       Madison and Hamilton anticipated the oppressive effect on freedom of expression which would result if the legislature could utilize its power of judging qualifications to pass judgment on a legislator’s political views. At the Constitutional Convention of 1787, Madison opposed a proposal to give to Congress power to establish qualifications in general. Warren, The Making of the Constitution 420-422 (1937). The Journal of the Federal Convention of 1787 states:
      “Mr. Madison was opposed to the Section as vesting an improper & dangerous power in the Legislature. The qualifications of electors and elected were fundamental articles in a Republican Govt, and ought to be fixed by the Constitution. If the Legislature could regulate those of either, it can by degrees subvert the Constitution. . . . Qualifications founded on artificial distinctions may be devised, by the stronger in order to keep out partizans of a weaker faction.
      “Mr. Madison observed that the British Parliamt. possessed the power of regulating the qualifications both of the electors, and the elected; and the abuse they had made of it was a lesson worthy of our attention. They had made the changes in both cases subservient to their own views, or to the views of political or Religious parties.” 2 Farrand, The Records of the Federal Convention of 1787, pp. 249-250 (Aug. *10, 1787).
      Hamilton agreed with Madison that:
      “The qualifications of the persons who may choose or be chosen . . . are defined and fixed in the constitution; and are unalterable by the legislature.” The Federalist, No. 60, p. 409 (Cooke ed. 1961).

       Bond argues that the action of the Georgia House was not authorized by state law, that if the State Constitution allows this exclusion it does so pursuant to an oath which is unconstitutionally vague, that the exclusion was based on statements protected by the First Amendment, and that the exclusion is a bill of attainder and an ex -post jacto law. In addition, amicus briefs filed in support of appellant Bond add the arguments that the decision not to seat him was inextricably involved with race prejudice and that it violated the guarantee of a republican form of government clause.
      Similarly, we need not pass on the standing of two of Bond's constituents who joined in the suit below. The majority below dismissed the complaint as to these two constituents because they lacked a sufficiently direct interest in the controversy as would give them standing. The majority noted that it was appropriate to dismiss the case as to Bond’s constituents because Bond’s complaint would resolve every issue necessary to a decision in the case. We express no opinion on the question of whether Bond’s constituents can claim that concrete adverseness which would be necessary to give them standing.


author: Mr. Justice Black

text:
    UNITED STATES v. ACME PROCESS EQUIPMENT CO.
    No. 86.
    Argued November 9, 1966.
    Decided December 5, 1966.

      Solicitor General Marshall argued the cause for the United States. With him on the brief were Assistant Attorney General Douglas, Richard A. Posner, David L. Rose and Robert V. Zener.

      Jack Rephan argued the cause for respondent. With him on the brief were Raymond R. Dickey and Bernard Gordon.

   Mr. Justice Black

delivered the opinion of the Court.

The respondent, Acme Process Equipment Company, brought this action against the United States in the Court of Claims to recover damages for breach of a contract under which Acme undertook through itself and subcontractors to manufacture 2,751 75-mm. recoilless rifles for about $337 per rifle. Among other defenses, the United States alleged that it had rightfully canceled its contract with Acme because three of Acme's principal employees had accepted compensation for awarding subcontracts in violation of the Anti-Kickback Act set out in part below. The Court of Claims found, as facts, that the kickbacks had been paid as alleged and that this was the ground on which the United States had canceled the prime contract with Acme, but construed the Act as not authorizing the cancellation. 171 Ct. Cl. 324, 347 F. 2d 509. We hold that it does.

I.

In October 1952, Acme hired Harry Tucker, Jr., and his associate, James Norris, for the purpose of establishing and managing a new division of the company to handle government contracts. Norris was made general manager of production with authority to submit bids, sign government contracts, and award subcontracts. Tucker was placed in charge of sales, government contracts, and expediting subcontract operations. Prior to this time Tucker had entered into a contract with All Metals Industries, Inc., under which he was to receive a commission for all sales to customers, including Acme, procured by him. Tucker’s employment contract with Acme specifically stated that he represented and would continue to represent firms in other lines of business, but Acme did not consult with any of his other clients at the time Tucker was hired.

Late in October, Tucker advised his superiors at Acme of the proposed Army contract for rifles, and at Tucker’s suggestion, Acme submitted a bid of $337 per rifle. Since Acme’s bid was the lowest, the Army began negotiations with Acme culminating in the award of the contract in January 1953. The negotiations were handled by Tucker and Norris for Acme. Since it was contemplated that the project would be largely subcontracted, leaving to Acme only the final finishing and assembly of components, the Army expressed a keen interest in Acme’s proposed subcontractors. Not only did it review Acme’s subcontracting plans and require Acme to notify it of changes in those plans during the final stages of negotiation, but the contract eventually awarded required government approval of all subcontracts in excess of $25,000. All Metals, because its proposed subcontract amounted to one-third of the amount of the prime contract, actually participated in the negotiations between Acme and the Army.

During this period of negotiation two other developments took place. Tucker obtained agreements from two other potential subcontractors to pay him commissions on any orders he could procure from Acme. Army contracting officers warned Acme’s president, Joshua Epstein, that Tucker was suspected of having engaged in contingent-fee arrangements with other government contractors.

Finally, Acme was awarded the prime contract. Although the price was fixed at $337 per rifle, the contract contained a price redetermination clause under which, after 30% of the rifles were delivered, the parties could negotiate the price on past and future shipments upward or downward, with an upper limit of $385 per rifle. Within a few weeks after the prime contract was awarded, All Metals and the other two companies with which Tucker had prior kickback arrangements obtained subcontracts from Acme. Tucker was paid his kickbacks, but, apparently unsatisfied with the amount of his payoff, he got Jack Epstein, the superintendent of the chief Acme plant and the son of Acme’s president and principal stockholder, to join the kickback conspiracy. Together Epstein and Tucker threatened to cancel All Metals’ subcontract unless it paid $25,000 to a dummy corporation owned by Tucker, Norris, and Epstein for fictitious consulting services. All Metals reluctantly acceded to the shakedown. The amount paid to Tucker, Norris, and Epstein was charged to Acme through an increase in the subcontract price.

Although they knew that Tucker was representing other companies and had been notified of the Army’s suspicions of Tucker’s involvement in contingent-fee arrangements, other officials of Acme were not aware of the kickback activities of Tucker, Norris, and Epstein until late in 1953. At that time, Acme’s president caused the resignation of the three suspected officials.

In 1956 Tucker, Norris, and Epstein were indicted for violation of the then Anti-Kickback Act, 60 Stat. 37. After presentation of the Government’s case, the District Court granted the defendants’ motion for acquittal on the ground that the Act — which at that time embraced only “cost-plus-a-fixed-fee or other cost reimbursable” government contracts — did not apply to Acme’s contract, a fixed-price contract with a provision for limited price redetermination. The court found the defendants’ actions “despicable and morally reprehensible, but unfortunately within the narrow letter of the law.” The court recommended that Congress amend the Anti-Kickback Act “to include as a crime the vicious and immoral type of conduct that has been exhibited in this case.” United States v. Norris, Crim. No. 18535 (D. C. E. D. Pa.), April 14, 1956.

The District Court’s opinion did indeed spur the Comptroller General to recommend amendatory legislation and in 1960 the Anti-Kickback Act was amended to apply to all “negotiated contracts.” The civil provision of the amended Act was made retroactive to allow government recovery of kickbacks “whether heretofore or hereafter paid or incurred by the subcontractor.”

II.

The Anti-Kickback Act, as originally passed in 1946 and as amended in 1960, provides two express sanctions for its violation: (1) fine or imprisonment for one who makes or receives a kickback, and (2) recovery of the kickback by the United States. The Court of Claims held, and it is argued here, that had Congress wanted “to provide the additional remedy of contract annulment, it could have done so” by express language, 171 Ct. Cl., at 343, 347 F. 2d, at 521, and of course it could have. But the fact that it did not see fit to provide for such a remedy by express language does not end the matter. The Anti-Kickback Act not only “prohibited” such payments, but clearly expressed a policy decidedly hostile to them. They were recognized as devices hurtful to the Government’s procurement practices. Extra expenditures to get subcontracts necessarily add to government costs in cost-plus-a-fixed-fee and other cost reimbursable contracts. And this is also true where the prime contract is a negotiated fixed-price contract with a price redetermination clause, such as this prime contract is here. The kickbacks here are passed on to the Government in two stages. The prime contractor rarely submits his bid until after he has tentatively lined up his subcontractors. Indeed, as here, the subcontractors frequently participate in negotiation of the prime contract. The subcontractor’s tentative bid will, of course, reflect the amount he contemplates paying as a kickback, and then his inflated bid will be reflected in the prime contractor’s bid to the Government. At the renegotiation stage, where the prime contractor’s actual cost experience is the basis for price redetermination, any kickbacks, paid by subcontractors and passed on to the prime contractor after the prime contract is awarded, will be passed on to the Government in the form of price redetermination upward.

Acme argues, however, that the express provision for recovery of kickbacks is enough to protect the Government from increased costs attributable to them. But this argument rests on two false assumptions. The first is that kickbacks can easily be detected and recovered. This is hardly the case. Kickbacks being made criminal means that they must be made — if at all — in secrecy. Though they necessarily inflate the price to the Government, this inflation is rarely detectable. This is particularly true as regards defense contracts where the products involved are not usually found on the commercial market and where there may not be effective competition. Such contracts are generally negotiated and awarded without formal advertising and competitive bidding, and there is often no opportunity to compare going prices with the price negotiated by the Government. Kickbacks will usually not be discovered, if at all, until after the prime contract is let. The second false assumption underlying Acme’s argument is that the increased cost to the Government is necessarily equal to the amount of the kickback which is recoverable. Of course, a subcontractor who must pay a kickback is likely to include the amount of the kickback in his contract price. But this is not all. A subcontractor who anticipates obtaining a subcontract by virtue of a kickback has little incentive to stint on his cost estimates. Since he plans to obtain the subcontract without regard to the economic merits of his proposal, he will be tempted to inflate that proposal by more than the amount of the kickback. And even if the Government could isolate and recover the inflation attributable to the kickback, it would still be saddled with a subcontractor who, having obtained the job other than on merit, is perhaps entirely unreliable in other ways. This unreliability in turn undermines the security of the prime contractor's performance — a result which the public cannot tolerate, especially where, as here, important defense contracts are involved.

III.

In United States v. Mississippi Valley Co., 364 U. S. 520, 563, the Court recognized that “a statute frequently implies that a contract is not to be enforced when it arises out of circumstances that would lead enforcement to offend the essential purpose of the enactment.” The Court there approved the cancellation of a government contract for violation of the conflict-of-interest statute on the ground that “the sanction of nonenforcement is consistent with and essential to effectuating the public policy embodied in” the statute. Ibid. We think the same thing can be said about cancellation here.

The Court of Claims, in holding that the Anti-Kickback Act does not authorize government cancellation because of its violation, distinguished Mississippi Valley Co. on the ground that the Anti-Kickback Act, unlike the conflict-of-interest statute, provides a civil as well as a criminal remedy. But we do not deem the provision of a civil remedy in the Anti-Kickback Act decisive. Where there is a mere conflict of interest, no concrete monetary rewards may have been received or paid which the Government can recover in a civil action. But where there is commercial bribery in the form of a kickback, there is something specific which the Government can recover, and hence it was quite natural for Congress to provide this express remedy. There is absolutely no indication in the legislative history of the Anti-Kickback Act that Congress, in providing a civil remedy for a more tangible evil, intended to preclude other civil sanctions necessary to effectuate the purpose of the Act.

There is likewise no merit to the Court of Claims’ distinction of the Mississippi Valley Co. case on the ground that there the criminal provision of the conflict-of-interest statute was violated whereas here the kickback conspirators were acquitted of violating the Anti-Kickback Act as it existed when the kickbacks occurred, prior to 1960. As we have seen, Acme’s employees were acquitted on the technical ground that Acme’s prime contract was not a “cost reimbursable” contract to which the Act then expressly applied. It is unnecessary for us to decide whether this holding was correct. For whether the kickbacks here contravened the narrow letter of the criminal law, strictly construed, they clearly were violative of the public policy against kickbacks first expressed by Congress in 1946. If Congress then limited the reach of the Act to cost reimbursable contracts, it was only because other types of negotiated contracts were rarely in use then. Though the recent extensive use of other forms of negotiated contracts led Congress in 1960 to amend the Act to cover clearly these types of contracts and to close the technical loophole opened by the acquittal of Acme’s employees, the congressional policy against all kickbacks was not changed. Congress merely reiterated its recognition of the evil and sought to correct the letter of the law to effectuate its longstanding policy. In making the civil remedy of the 1960 Act retroactive, Congress clearly indicated that there had been no basic change in the public policy against kickbacks.

This public policy requires that the United States be able to rid itself of a prime contract tainted by kickbacks. Though the kickbacks did not take place until after the prime contract was awarded to Acme, the kickback arrangements existed either at the time the prime contract was awarded or shortly thereafter, and at least one of the kickbacking subcontractors actually participated in the negotiation of the prime contract. These circumstances, as well as the price redetermination feature of the prime contract, produced a great likelihood that the cost of the prime contract to the Government and the reliability of Acme’s performance under it would be directly affected by the fact that the prime contract was to be performed largely through subcontracts obtained by kickbacks.

The Court of Claims, in holding that the Act does not authorize government cancellation because of kickbacks, relied heavily on its finding that none of the officers of Acme were aware of the kickbacks. But as previously stated those of Acme’s employees and agents who did know were in the upper echelon of its managers. One of the guilty employees was the general manager of one of the company’s chief plants and the son of Acme’s president, and the two other kickback receivers were in charge of operations, sales, and government contracts. They were the kind of company personnel for whose conduct a corporation is generally held responsible. Cf. Gleason v. Seaboard Air Line R. Co., 278 U. S. 349. Since Acme selected those agents to carry on its business in obtaining and performing government contracts, there is no obvious reason why their conduct in that field should- not be considered as Acme’s conduct, particularly where it touches the all-important subject of kickbacks. And here, as this Court said about the conflict-of-interest statute in United States v. Mississippi Valley Co., supra, at 565, it is appropriate to say that it is the “inherent difficulty in detecting corruption which requires that contracts made in violation of . . . [the Anti-Kickback Act] be held unenforceable, even though the party seeking enforcement ostensibly appears entirely innocent.”

The judgment of the Court of Claims is reversed with directions to sustain the United States’ right to cancel the prime contract.

It is so ordered.

       Section 1 of the Anti-Kickback Act, 60 Stat. 37, as amended, 74 Stat. 740, 41 Ü. S. C. § 51, provides in pertinent part:
      “That the payment of any fee, commission, or compensation of any kind or the granting of any gift or gratuity of any kind, either directly or indirectly, by or on behalf of a subcontractor, . . . (1) to any officer, partner, employee, or agent of a prime contractor holding a negotiated contract entered into by any department, agency, or establishment of the United States for the furnishing of supplies, materials, equipment or services of any kind whatsoever ... as an inducement for the award of a subcontract or order from the prime contractor ... is hereby prohibited. The amount of any such fee, commission, or compensation or the cost or expense of any such gratuity or gift, whether heretofore or hereafter paid or incurred by the subcontractor, shall not be charged, either directly or indirectly, as a part of the contract price charged by the subcontractor to the prime contractor .... The amount of any such fee, cost, or expense shall be recoverable on behalf of the United States from the subcontractor or the recipient thereof by setoff . . . or by an action in an appropriate court of the United States. . . .”
      Section 4 of the Act, 41 U. S. C. §54, provides:
      “Any person who shall knowingly, directly or indirectly, make or receive any such prohibited payment shall be fined not more than $10,000 or be imprisoned for not more than two years, or both.”

       Shortly after the prime contract was awarded, two other companies paid Tucker’s father and Norris’ assistant kickbacks for obtaining subcontracts from Acme. This made a total of five subcontracts obtained through kickbacks.

       This was the original Anti-Kickback Act passed by Congress in 1946. It expressly prohibited kickbacks only to employees of “a prime contractor holding a contract ... on a cost-plus-a-fixed-fee or other cost reimbursable basis . . . ."

       See generally H. R. Rep. No. 1880, S. Rep. No. 1585, 86th Cong., 2d Sess. The Act, as amended, is set out in part in note 1, supra.

       This is precisely what happened here before the Government canceled Acme’s contract. Acme in 1953 submitted cost data for price redetermination purposes that included the charges of the five subcontractors which had paid kickbacks to Acme’s employees. These subcontracting charges in turn included the amounts paid as kickbacks. Had the kickbacks not been discovered and the contract not been canceled, Acme would have been able to use these costs to renegotiate the price per rifle from $337 to $385. Such price redetermination could have cost the Government about $132,000 more on the entire contract.

       See S. Rep. No. 1585, supra, n. 4, at 3.

       See United States v. Barnard, 255 F. 2d 583, cert. denied, 358 U. S. 919, holding that a fixed-price contract with provision for unlimited price redetermination is a “cost reimbursable” contract.


author: Mr. Justice Black Mr. Justice White,

text:
    UNITED STATES v. DEMKO.
    No. 76.
    Argued November 8, 1966.
    Decided December 5, 1966.

      Richard S. Salzman argued the cause for the United States. With him on the brief were Solicitor General Marshall, Assistant Attorney General Douglas, Robert S. Rif kind and Morton Hollander.

      Gerald N. Ziskind argued the cause and filed a brief for respondent.
   Mr. Justice Black

delivered the opinion of the Court.

The respondent Demko, a federal prisoner, was seriously injured in 1962 in the performance of an assigned prison task in a federal penitentiary. Shortly afterward he filed a claim for compensation benefits under 18 U. S. C. § 4126. That law, first enacted by Congress in 1934, authorized the Federal Prison Industries, Inc., a federal corporation, to use its funds “in paying, under rules and regulations promulgated by the Attorney General, compensation ... to inmates or their dependents for injuries suffered in any industry.” Under that law and regulations promulgated under it, respondent was awarded $180 per month which was to start on discharge from prison and continue so long as disability continued. After winning this compensation award, respondent brought this action against the United States in the Federal District Court under the Federal Tort Claims Act, alleging that his injury was due to the Government’s negligence for which he was entitled to recover additional damages under that Act. The United States defended on the single ground that respondent’s right to recover compensation under 18 U. S. C. § 4126 was his exclusive remedy against the Government barring him from any suit under the Federal Tort Claims Act. The District Court, holding that compensation under 18 U. S. C. § 4126 was not his exclusive remedy, rejected this defense and accordingly entered a judgment for the respondent against the United States for tort claim damages based on stipulated facts. The Court of Appeals for the Third Circuit affirmed. 350 F. 2d 698. Subsequently the Court of Appeals for the Second Circuit, in Granade v. United States, 356 F. 2d 837, reached precisely the opposite result, holding that a prison inmate, injured in prison employment and eligible for compensation under 18 U. S. C. § 4126, is precluded from suing under the Federal Tort Claims Act. To resolve this conflict we granted certiorari. 383 U. S. 966.

Historically, workmen’s compensation statutes were the offspring of a desire to give injured workers a quicker and more certain recovery than can be obtained from tort suits based on negligence and subject to common-law defenses to such suits. Thus compensation laws are practically always thought of as substitutes for, not supplements to, common-law tort actions. A series of comparatively recent cases in this Court has recognized this historic truth and ruled accordingly. Johansen v. United States, 343 U. S. 427, and Patterson v. United States, 359 U. S. 495, for instance, are typical of the recognition by this Court that the right of recovery granted groups of workers covered by such compensation laws is exclusive. Such rulings of this Court have established as a general rule the exclusivity of remedy under such compensation laws. In Johansen v. United States, supra, at 441, this Court stated that where “the Government has created a comprehensive system to award payments for injuries, it should not be held to. have made exceptions to that system without specific legislation to that effect.” Later in Patterson v. United States, supra, at 496, this Court emphatically refused to abandon the Johansen ruling, calling attention to the fact that Congress by specific statute could change the Johansen “policy at any time.” Consequently we decide this case on the Johansen principle that, where there is a compensation statute that reasonably and fairly covers a particular group of workers, it presumably is the exclusive remedy to protect that group.

There is no indication of any congressional purpose to make the compensation statute in 18 U. S. C. § 4126 nonexclusive. It was enacted in 1934, and provided for injured federal prisoners the only chance they had to recover damages of any kind. Its enactment was 12 years prior to the 1946 Federal Tort Claims Act. There is nothing in the legislative history of this latter Act which pointed to any purpose to add tort claim recovery for federal prisoners after they had already been protected by 18 U. S. C. § 4126. Indeed to hold that the 1946 Federal Tort Claims Act was designed to have such a supplemental effect would be to hold that injured prisoners are given greater protection than all other government employees who are protected exclusively by the Federal Employees’ Compensation Act, a congressional purpose not easy to infer.

The court below refused to accept the prison compensation law as an exclusive remedy because it was deemed not comprehensive enough. We disagree. That law, as shown by its regulations, its coverage and the amount of its payments to the injured and their dependents, compares favorably with compensation laws all over the country. While there are differences in the way it protects its beneficiaries, these are due in the main to the differing circumstances of prisoners and nonprisoners. That law, as the Solicitor General points out, offers far more liberal payments than many of the state compensation laws, and its standard of payments for prisoners rests on the schedules of payment of the Federal Employees’ Compensation Act which Congress has provided to take care of practically all government employees. This particular federal compensation law, created to meet, in the accepted fashion of such laws, the special need of a class of prisoners, has now for more than 30 years functioned to the satisfaction of Congress, except as Congress broadened its coverage in 1961. Until Congress decides differently we accept the prison compensation law as an adequate substitute for a system of recovery by common-law torts.

The court below was of the opinion that its holding was required by United States v. Muniz, 374 U. S. 150. We think not. Whether a prisoner covered by the prison compensation law could also recover under the Federal Tort Claims Act was neither an issue in nor decided by Muniz. As our opinion in Muniz noted, neither of the two prisoners there was covered by the prison compensation law. What we decided in Muniz was that the two prisoners there involved, who were not protected by the prison compensation law, were not barred from seeking relief under the Federal Tort Claims Act. However, that is not this case. The decision in Muniz could not possibly control our decision here because respondent is protected by the prison compensation law. All other arguments of respondent have been considered but we find none sufficient to justify recovery under the Federal Tort Claims Act. The judgments of the courts. below are reversed with direction to sustain the Government’s defense that respondent’s recovery under the prison compensation law is exclusive.

Reversed.

Mr. Justice White,

whom Mr. Justice Douglas joins,

dissenting.

United States v. Muniz, 374 U. S. 150, held that action under the Federal Tort Claims Act was available to federal prisoners injured by the negligence of government employees. Given that case, the respondent, who was injured by government negligence while a federal prisoner, is entitled to relief unless the compensation available to him under 18 U. S. C. § 4126 is his exclusive remedy, a proposition which rests on the intent of Congress to give § 4126 that effect. Certainly the section does not in so many words exclude other remedies; and in my view exclusivity should not be inferred, for § 4126 is neither comprehensive nor certain and does not meet the tests of Johansen v. United States, 343 U. S. 427, and of Patterson v. United States, 359 U. S. 495. Section 4126 permits, but does not require, the application of prison industries income to some form of compensation scheme. The scheme adopted by the Attorney General applies to only a limited class of prisoners — those doing prison industry, maintenance, or similar work. A prisoner injured in prison industry work gets no compensation under the plan until he is released and none then if he has completely recovered. Furthermore, his payments stop if he is reincarcerated. If he dies while in prison, he gets nothing' at all. On the other hand, if a prisoner is injured by the negligence of a prison guard and is not covered by the § 4126 plan, he may sue and recover under the Tort Claims Act. Recovery is his and when he gets it, he keeps it whether or not he dies before his prison term expires and whether or not he is released and then again imprisoned.

Essentially, I agree with Judge Freedman, who wrote the opinion for the Court of Appeals for the Third Circuit. The following is a passage from his opinion:

“Congress in adopting the amendment of 1961 to § 4126 gave no express indication that the compensation authorized by it was to be exclusive, and its provisions preclude the imputation of any such intention. The compensation scheme for prisoners is very different from the compensation system for servicemen which was described in [Feres v. United States] as being ‘simple, certain, and uniform’ (340 U. S., at 144 ...) at the time the Federal Tort Claims Act was passed in 1946. It is also vastly different from the right to compensation enjoyed by government employes under the Federal Employees’ Compensation Act. It is permissive rather than mandatory. The amount of the award rests entirely within the discretion of the Attorney General, but may not under the statute exceed the amount payable under the Federal Employees’ Compensation Act. Compensation is paid only upon the inmate’s release from prison and will be denied if full recovery occurs while he is in custody and no significant disability remains after his release. There is no provision for the claimant to have a personal physician present at his physical examination, and there is no opportunity for administrative review. Finally, compensation, even when granted, does not become a vested right, but is to be paid only so long as the claimant conducts himself in a lawful manner and may be immediately suspended upon conviction of any crime, or upon incarceration in a penal institution.
“What emerges on examination, therefore, is a severely restrictive system of compensation permeated at all levels by the very prison control and dominion which was at the origin of the inmate’s injury. This discretionary and sketchy system of compensation, which would not even have covered the present plaintiff in 1946, may not be deemed the equivalent of compensation under the Federal Employees’ Compensation Act of 1916. Nowhere can there be found any indication that Congress intended that it should serve to exclude prisoners from the broad and sweeping policy embodied in the Federal Tort Claims Act.” 350 F. 2d 698, 700-701. (Footnotes omitted.)

Nor does respondent claim the right to cumulate his remedies: he concedes that recovery under the compensation scheme must be offset against any negligence award he would otherwise receive.

Respectfully, I dissent.

       Act of June 23, 1934, c. 736, §4, 48 Stat. 1211. The Federal Prison Industries was established as a District of Columbia corporation and a “governmental body” to expand an industrial training and rehabilitation program for prisoners initiated by the Act of May 27, 1930, c. 340, 46 Stat. 391.

       On August 1, 1966, Federal Prison Industries, Inc., raised respondent’s award to $245.31 per month under authority of the Act of July 4, 1966, 80 Stat. 252, amending the Federal Employees’ Compensation Act, 39 Stat. 742, as amended, 5 U. S. C. § 751 et seq.

       28 U. S. C. §§.1346 (b), 2671 et seq.

       The lower federal courts have held, uniformly, that persons for whom the Government has supplied an administrative compensation remedy are precluded from seeking recovery against the United States for injuries received in the course of their work under the Federal Tort Claims Act, the Jones Act, the Suits in Admiralty Act, or the Public Vessels Act. Jarvis v. United States, 342 F. 2d 799, cert. denied, 382 U. S. 831; Rizzuto v. United States, 298 F. 2d 748; Lowe v. United States, 292 F. 2d 501; Somma v. United States, 283 F. 2d 149; Mills v. Panama Canal Co., 272 F. 2d 37, cert. denied, 362 U. S. 961; United States v. Forfari, 268 F. 2d 29, cert. denied, 361 U. S. 902; Balancio v. United States, 267 F. 2d 135, cert. denied, 361 U. S. 875; Aubrey v. United States, 103 U. S. App. D. C. 65, 254 F. 2d 768; United States v. Firth, 207 F. 2d 665; Lewis v. United States, 89 U. S. App. D. C. 21, 190 F. 2d 22, cert. denied, 342 U. S. 869. See also Gradall v. United States, 161 Ct. Cl. 714, 329 F. 2d 960, 963; Denenberg v. United States, 158 Ct. Cl. 401, 305 F. 2d 378, 379-380.

       39 Stat. 742, as amended, 5 U. S. C. § 751 et seq.

       The regulations governing awards of workmen’s compensation to federal prisoners appear at 28 CFR §§301.1-301.10 (1965 rev.).

       In 1961 Congress expanded the coverage of 18 U. S. C. § 4126 to include not only prisoners’ injuries suffered in “any industry” but also in “any work activity in connection with the maintenance or operation of the institution where confined.” Act of September 26, 1961, 75 Stat. 681, 18 ü. S. C. § 4126.

       In this case, the Government stipulated that respondent’s “right to compensation pursuant to 18 U. S. C. [§]4126 is not affected by this suit. Regardless of the outcome of this suit [respondent] will have the same right to compensation as if suit had not been instituted.”