author: Mfi. Justice Harlan

text:
    NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE v. ALABAMA ex rel. FLOWERS, ATTORNEY GENERAL.
    No. 169.
    Argued March 24, 1964.
    Decided June 1, 1964.

      Robert L. Carter argued the cause for petitioner. With him on the brief were Fred D. Gray, Arthur D. Shores, Orzell Billingsley and Peter Hall.

      Gordon Madison, Assistant Attorney General of Alabama, argued the cause for respondent. With him on the brief was Richmond M. Flowers, Attorney General of Alabama.
   Mfi. Justice Harlan

delivered the opinion of the Court.

This case, involving the right of the petitioner, the National Association for the Advancement of Colored People, to carry on activities in Alabama, reaches this Court for the fourth time. In 1956 the Attorney General of Alabama brought a suit in equity to oust the Association, a New York “membership” corporation, from the State. The basis of the proceeding was the Association’s alleged failure to comply with Alabama statutes requiring'foreign corporations to register with the Alabama Secretary of State and perform other acts in order to qualify to do business in the State; the complaint alleged also that certain of the petitioner’s activities in Alabama, detailed below, were inimical to the well-being of citizens of the State.

On the day the complaint was filed, the Attorney General obtained an ex parte restraining order barring the Association, pendente lite, from conducting any business within the State and from taking any steps to qualify to do business under state law. Before the case was heard on the merits, the Association was adjudged in contempt for failing to comply with a court order directing it to produce various records, including membership lists. The Supreme Court of Alabama dismissed a petition for certiorari to review the final judgment of contempt on procedural grounds, 265 Ala. 349, 91 So. 2d 214, which this Court, on review, found inadequate to bar consideration of the Association’s constitutional claims. NAACP v. Alabama ex rel. Patterson, 357 U. S. 449. Upholding those claims, we reversed the judgment of contempt without reaching the question of the validity of the underlying restraining order.

In the second round of these proceedings, the Supreme Court of Alabama, on remand “for proceedings not inconsistent” with this Court’s opinion, 357 U. S., at 467, again affirmed the judgment of contempt which this Court had overturned. 268 Ala. 531, 109 So. 2d 138. This decision was grounded on belief that this Court’s judgment had rested on a “mistaken premise.” Id., at 532, 109 So. 2d, at 139. Observing that the premise of our prior decision had been one which the State had “plainly, accepted” throughout the prior proceedings here, this Court ruled that the State could not, for the first time on remand, change its stance. 360 U. S. 240, 243. We noted that the Supreme Court of Alabama “evidently was not acquainted with the detailed basis of the proceedings here” when it reaffirmed the judgment of contempt, id., at 243-244, and again remanded without considering the validity of the restraining order. In so doing, the Court said: “We assume that the State Supreme Court . . . will not fail to proceed promptly with the disposition of the matters left open under our mandate for further proceedings . . rendered in the prior case. Id., at 245.

Our second decision was announced on June 8, 1959. Unable to obtain a hearing on the merits in the Alabama courts, the Association, in June 1960, commenced proceedings in the United States District Court to obtain a hearing there. Alleging that the restraining order and the failure of the Alabama courts to afford it a hearing on the validity of the order were depriving it of constitutional rights, the Association sought to enjoin enforcement of the order. Without passing on the merits, the District Court dismissed the action, because it would not assume that the executive and judicial officers of Alabama involved in the litigation would fail to protect “the constitutional rights of all citizens.” 190 F. Supp. 583, 586. The Court of Appeals agreed that the matter “should be litigated initially in the courts of the State.” 290 F. 2d 337, 343. It, however, vacated the judgment below and remanded the case to the District Court, with instructions “to permit the issues presented to be determined with expedition in the State courts,” but to retain jurisdiction and take steps necessary to protect the Association’s right to be heard on its constitutional claims. Ibid.

The jurisdiction of this Court was invoked a third time. On October 23, 1961, we entered an order as follows:

“. . . The judgment below is vacated, and the case is remanded to the , Court of Appeals with instructions to direct the District Court to proceed with the trial of the issues in this action unless within a reasonable time, no later than January 2, 1962, the State of Alabama shall have accorded to petitioner an opportunity to be heard on its motion to dissolve the state restraining order of June 1, 1956, and upon the merits of the action in which such order was issued. Pending the final determination of. all proceedings in the state action, the District Court is authorized to retain jurisdiction over the féderal action and to take such steps as may appear necessary and appropriate to assure a prompt disposition of all issues involved in, or connected with, the state action. . . .” 368 U. S. 16-17.

In December 1961, more than five years after it was “temporarily” ousted from Alabama, the Association obtained a hearing on the merits in the Circuit Court of Montgomery County, the court which had issued the restraining order in 1956. On December 29, 1961, the Circuit Court entered a final decree in which the court found that the Association had continued to do business in Alabama “in violation of the Constitution and laws of the state relating to foreign corporations” and that the Association’s activities in the State were “in violation of other laws of the State of Alabama and are and have been a usurpation and abuse of its corporate functions and detrimental to the State of Alabama . . . .” The decree permanently enjoined the Association and those affiliated with it from doing “any further business of any description or kind” in Alabama and from attempting to qualify to do business there. The Association appealed to the Supreme Court of Alabama, which, on February 28,1963, affirmed the judgment below without considering the merits. 274 Ala. 544, 150 So. 2d 677. The Supreme Court relied wholly on procedural grounds, detailed more fully below. This Court again granted certiorari, 375 U. S. 810.

I.

We consider first the nonfederal basis of the decision of the Alabama Supreme Court, which is asserted by the State as a barrier to consideration of the constitutionality of the Association’s ouster from Alabama.

In its Assignment of Errors to the Supreme Court of Alabama, the Association specified 23 claimed errors in the proceedings in the trial court. Each claim of error was separately numbered and set off in a separate paragraph. Most of the claims alleged that the error involved deprived the Association and those connected with it of rights protected by the Federal Constitution. The brief filed by the Association in 'the State Supreme Court is divided into four sections: “Statement of Case,” “Statement of Facts,” “Propositions of Law” (containing 15 separately numbered and paragraphed propositions of law, with a separate list of cases supporting each), and “Argument.” The “Argument” section is subdivided into five parts by Roman numerals unaccompanied by any headings. There is a specific reference in the “Argument” to each assignment of error on which the Association relied. Only one assignment of error is mentioned more than once; that assignment is mentioned twice, both times in connection with the same substantive issue. In only two paragraphs is there a reference to more than one assigned error, one paragraph including a discussion of two related assignments and another including a discussion of four related assignments.

The Supreme Court of Alabama based its decision entirely on the asserted failure of the Association’s brief to conform to rules of the court. Although it referred to Rule 9 of its Rules, which concerns the form of.an appellant’s brief, the Supreme Court gave no indication of any respect in which the Association’s brief fell short of the requirements of that Rule, and appears to have placed no reliance on it at all. See 274 Ala., at 546, 150 So. 2d, at 679. The basis of the decision below was rather “a rule of long standing and frequent application that where unrelated assignments of error are argued together and one is without merit, the others will not be considered.” Ibid. Proceeding to apply that rule to the Association’s brief, the Supreme Court held that at least one of the assignments of error contained in each of the five numbered subdivisions of the “Argument” section of the brief was without merit, and that it would therefore not consider the merit of any of the other assignments. The Attorney General of Alabama argues that this is a nonfederal ground of decision adequate to bar review in this Court of the serious constitutional claims which the Association presents. We find this position wholly unacceptable.

Paying full respect to the state court's opinion, it seems to us crystal clear that the rule invoked by it cannot reasonably be deemed applicable to this case. In its brief, the Association referred to each of its assignments of error separately, and specified the argument pertaining thereto. A separate paragraph was devoted to each of the assignments of error except, as noted above, for two related assignments included in one paragraph and four other related assignments included in another paragraph. These six assignments, like all the others, were specified and explicitly tied to the argument relating to each. We are at a loss to understand how it could be concluded that the structure of the brief did not fully meet the requirement that unrelated assignments of error not be “argued together.” Had the petitioner simply omitted the Roman numerals which subdivide its “Argument” section, intended presumably as an organizational aid to understanding, there would have been no conceivable basis for the suggestion that the various errors were argued “in bulk”; and, indeed, the sole basis mentioned in the Alabama court’s opinion for the conclusion that these errors were grouped for argument is the numbering of subdivisions. The numbering was a mere stylistic device, which cannot well be regarded as detracting from the brief’s full conformity with the rule in question. The consideration of asserted constitutional rights may not be thwarted by simple recitation that there has not been observance of a procedural rule with which there has been compliance in both substance and form, in every real sense. Davis v. Wechsler, 263 U. S. 22, 24; Staub v. City of Baxley, 355 U. S. 313, 318-320. To the same effect, see this Court’s discussion of a similar aspect of prior proceedings in this case, 357 U. S., at 454-458.

The Alabama courts have not heretofore applied their rules respecting the preparation of briefs with the pointless severity shown here. In the early case of Bell v. Fulgham, 202 Ala. 217, 218, 80 So. 39, 40, the court said:

“The brief filed by appellant is characterized by a degree of informality and an apparent lack of attention to Rule 10 . . . [predecessor to the present Rule 9]; but the rule is directory, and from the time of its adoption the court has exercised its discretion in the consideration of briefs which fairly and helpfully make the points upon which appellant relies. Agreeably with the practice thus established, the brief for appellant has been considered.”

More recently, in Bolton v. Barnett Lumber & Supply Co., 267 Ala. 74, 75, 100 So. 2d 9, the court stated again that its rule governing the form of an appellant's brief was “directory” and said that “if appellant’s brief, even though not in compliance with the rule, fairly and helpfully makes the points upon which appellant relies, this court may, in its discretion, consider it.” The court noted that it saw “no reason why there should be any real difficulty in complying with these rules.” Ibid.

Other cases are in accord. In Brothers v. Brothers, 208 Ala. 258, 259, 94 So. 175, 177, the Alabama Supreme Court said:

“It is true that the brief for appellant does not refer, to the tenth and eleventh assignments of error by number, as it should in strictness have done. But, in view of the simplicity of the record, and of the facts that only four or five rulings are discussed, and that specific reference to the assignments was not necessary to our understanding of the argument, we have preferred to condone the fault in this instance.”

In Madison Limestone Co. v. McDonald, 264 Ala. 295, 302, 87 So. 2d 539, 544, the court treated as sufficient three assignments of error which were “not properly expressed.” In City of Montgomery v. Mott, 266 Ala. 422, 96 So. 2d 766, there were 25 assignments of error, none of which was referred to by number in the appellant’s brief. The Alabama Supreme Court said that the brief did not “strictly conform” to the rules governing “the form and contents” of appellants’ briefs, but that it did “not feel that the defects in the brief warrant a dismissal of the appeal.” Id., at 424, 96 So. 2d, at 767. The court stated: “We have condoned noncompliance with the rule in question when the record is short and simple and when a strict compliance with the rule is not essential to an understanding of the assignments of error which are argued in appellant’s brief.” Ibid. Kendall Alabama Co. v. City of Fort Payne, 262 Ala. 465, 466, 79 So. 2d 801, 802, is to the same effect.

In State v. Farabee, 268 Ala. 437, 439, 108 So. 2d 148, 149-150, the court said:

“As pointed out by the appellee, appellant’s brief has not complied fully with the standards required by Supreme Court Rule 9 . . . . A concise statement of so much of the record as fully presents every error and exception relied upon referring to the pages of the transcript did not appear under the heading; 'Statement of the Case.’ Only two general propositions of law were set out to sustain the seven assignments of error presented on appeal. And only one case was cited in appellant’s argument, which seemed to argue several assignments together. Nevertheless, we will exercise our discretion and give consideration to the points argued. . . .” (Italics added.)

The court thus regarded as too unimportant to prevent consideration of the merits the very ground on which it relies here, even though it was accompanied by other failures to comply with the rules. In Shelby County v. Baker, 269 Ala. 111, 116, 110 So. 2d 896, 900, the court said:

“Appellant has assigned thirty separate grounds as error, but has argued them in groups, so as to make available to this Court application of the rule that where assignments of error not kindred in nature are argued together and one of them is without merit, the others in the group will not be examined. . . . However, many of the assignments seem to be somewhat kindred, and, in deference to counsel, we will consider them.” (Citations omitted.)

In Brooks v. Everett, 271 Ala. 380, 124 So. 2d 100, the court considered assignments of error although there were 38 of them and none had been “specifically referred to in appellant’s brief.” Id., at 381, 124 So. 2d, at 102. The court said: “. . . [W]e have held that although appellant’s brief does not comply with the rule, if it fairly and helpfully makes the points upon which appellant relies this court may, in its discretion, consider those points on their merits.” Ibid. See also Stariha v. Hagood, 252 Ala. 158, 162, 40 So. 2d 85, 89; Quinn v. Hannon, 262 Ala. 630, 632-633, 80 So. 2d 239, 241; Thompson v. State, 267 Ala. 22, 25, 99 So. 2d 198, 200.

The cases cited in the Alabama Supreme Court’s opinion and in the brief of the State Attorney General in this Court quite evidently do not support the State’s position. In some, there were no assignments of error, Dobson v. Deason, 258 Ala. 219, 61 So. 2d 764, or none was mentioned in the appellant’s brief, Bolton v. Barnett Lumber & Supply Co., supra; Pak-A-Sak of Alabama, Inc., v. Lauten, 271 Ala. 276, 279,123 So. 2d 122, 125. In another group of cases, several different allegations of error were joined in a single assignment of error. Mobile, Jackson & Kansas City R. Co. v. Bromberg, 141 Ala. 258, 273, 37 So. 395, 398; Alabama Chemical Co. v. Hall, 212 Ala. 8, 10, 101 So. 456, 458; Snellings v. Jones, 33 Ala. App. 301, 303, 33 So. 2d 371, 372. The remaining cases are the only ones which are at all related to the present case. In them, the Supreme Court of Alabama held that if any one of a group of unrelated assignments of error which had been argued together, or “in bulk,” was insufficient, all of them must fall. Ford v. Bradford, 218 Ala. 62, 65, 117 So. 429, 431; Taylor v. Taylor, 251 Ala. 374, 383, 37 So. 2d 645, 652-653; First National Bank of Birmingham v. Lowery, 263 Ala. 36, 41, 81 So. 2d 284, 287; Thompson v. State, 267 Ala. 22, 25, 99 So. 2d 198, 200; Bertolla v. Kaiser, 267 Ala. 435, 440, 103 So. 2d 736, 740; McElhaney v. Singleton, 270 Ala. 162, 167, 117 So. 2d 375, 380; Mize v. Mize, 273 Ala. 369, 370, 141 So. 2d 200, 201. While it does not always appear in the opinions how the assignments of error were argued; every indication is that, unlike the situation here, they were grouped together “for the purpose of argument,” First National Bank of Birmingham, supra, at 41, 81 So. 2d, at 287, and were in fact argued as a group, as the words used by the court suggest. In McElhaney, supra, at 166,117 So. 2d, at 380, for example, the court quoted the appellant’s brief, as follows: “Proposition No. 2 refers to and is covered by Assignments 2, 3 & 4 ... .” In the remainder of the discussion of these Assignments in the brief, also quoted, ibid., they are never again mentioned or distinguished. In Taylor, supra, at 383, 37 So. 2d, at 652, 51 assignments of error were “grouped and argued together in brief.” None of these cases even approaches a ruling that when, as here, assignments of error are individually specified in connection with the argument relevant to each, they are to be regarded as “argued in bulk” because, forsooth, the argument as a whole is divided on the pages of the brief into numbered subdivisions.

In sum, we think that what we said when this litigation was first here, with respect to the procedural point there asserted as a state ground of decision adequate to bar review on the merits, also fits the present situation:

“Novelty in procedural requirements cannot be permitted to thwart review in this Court applied for by those who, in justified reliance upon prior decisions, seek vindication in state courts of their federal constitutional rights.” 357 U. S., at 457-458.

The State has urged that if the nonfederal ground relied on below be found inadequate, as we find it to be, the case be remanded to the Supreme Court of Alabama for decision on the merits. While this might be well enough in other circumstances, in view of what has gone before, we reject that contention and proceed to the merits.

II.

The complaint against the Association, as finally-amended, alleged that it was a New York corporation maintaining an office and doing business in Alabama. The acts charged against the Association were:

(1) that it had “employed or otherwise paid money” to Authurine Lucy and Polly Meyers Hudson to encourage them to enroll as students in the University of Alabama in order to test the legality of its policy against admitting Negroes;
(2) that it had furnished legal counsel to represent Authurine Lucy in proceedings to obtain admission to the University;
(3) that it had “engaged in organizing, supporting and financing an illegal boycott” to compel a bus line in Montgomery, Alabama, not to segregate passengers according to race;
(4) that it had “falsely charged” officials of the State and the University of Alabama with acts in violation of state and federal law;
(5) that it had “falsely charged” the Attorney General of Alabama and the Alabama courts with “arbitrary, vindictive, and collusive” acts intended to prevent it from contesting its ouster from the State “before an impartial judicial forum,” and had “falsely charged” the Circuit Court and Supreme Court of the State with deliberately denying it a hearing on the merits of its ouster;
(6) that it had “falsely charged” the State and its Attorney General with filing contempt proceedings against it, knowing the charges therein to be false ;
(7) that it had “willfully violated” the order restraining it from carrying on activities in the State;
(8) that it attempted to “pressure” the mayor of Philadelphia, the Governor of Pennsylvania, and the Penn State football team into “a boycott of the Alabama football team” when the two teams were to play each other in the Liberty Bowl;
(9) that it had “encouraged, aided, and abetted the unlawful breach of the peace in many cities in Alabama for the purpose of gaining national notoriety and attention to enable it to raise funds under a false claim that it is for the protection of alleged constitutional rights”;
(10) that it had “encouraged, aided, and abetted a course of conduct within the State of Alabama, seeking to deny to the citizens of Alabama the constitutional right to voluntarily segregate”; and
(11) that it had carried on its activities in Alabama without complying with state laws requiring foreign corporations to register and perform other acts in order to do business within the State.

All of these acts were alleged to be “causing irreparable injury to the property and civil rights of the residents and citizens of the State of Alabama for which criminal prosecution and civil actions at law afford no adequate relief . . . .” The complaint stated also that “the said conduct, procedure, false allegations, and methods used by Respondent render totally unacceptable to the State of Alabama and its people the said Respondent corporation and the activities and business it transacts in this State.”

The last allegation, that the Association has failed to comply with the statutory requirements for a foreign corporation to do business in Alabama, furnishes no basis under Alabama law for its ouster. The requirements in question are set out in the Code of Alabama of 1940, Tit. 10, §§ 192-194. These provisions require that before doing business in Alabama a foreign corporation file with the Secretary of State its articles of incorporation and a written instrument designating a place of business within the State and an authorized agent residing there. There is a filing fee of $10. The corporation must file notice of amendments to its articles of incorporation and changes in its place of business or authorized agent.

There is nothing in these sections which attaches the consequence of permanent ouster to a foreign corporation which fails to register. That this is not the effect of the statute is conclusively demonstrated by § 194, which provides the State with a different and complete remedy: . . [A]ny . . . [foreign] corporation that engages in or transacts any business in this state without complying with the provisions of the two preceding sections shall, for each offense, forfeit and pay to the state the sum of one thousand dollars.”

Alabama cases confirm that the registration requirements are what they appear on their face to be: provisions ensuring that foreign corporations will be amenable to suit in Alabama courts. “They constitute a police regulation for the protection of the property interests of the citizens of the state .... The doing of a single act of business, if it be in the exercise of a corporate function, is prohibited. The policy of the Constitution and statute is to protect our citizens against the fraud and imposition of insolvent and unreliable corporations, and to place them in an attitude to be reached by legal process from our courts in favor of citizens having cause of complaint.” Alabama Western R. Co. v. Talley-Bates Const. Co., 162 Ala. 396, 402-403, 50 So. 341, 342. See Armour Packing Co. of La., Ltd., v. Vinegar Bend Lumber Co., 149 Ala. 205, 42 So. 866; George M. Muller Mfg. Co. v. First National Bank of Dothan, 176 Ala. 229, 57 So. 762. The Attorney General of Alabama has referred us to no case, and we have been able to find none, in which a foreign corporation. was ousted from. Alabama for failing to comply with the registration statute.

The other asserted grounds for excluding the petitioner from Alabama furnish no better foundation for the action below. The first two grounds relied on are manifestly untenable. Before these proceedings were commenced, this Court had upheld the right of Authurine Lucy and Polly Anne Meyers to enroll at the University of Alabama. Lucy v. Adams, 350 U. S. 1. Neither furnishing them with financial assistance, in effect a scholarship, to attend the University, nor providing them with legal counsel to assist their efforts to gain admission was unlawful or could, consistently with the decisions of this Court, be inhibited because contrary to the University’s policy against admitting Negroes. NAACP v. Button, 371 U. S. 415.

The third charge listed above is scarcely more substantial. Even if we were to indulge the doubtful assumption that an organized refusal to ride on Montgomery’s buses in protest against a policy of racial segregation might, without more, in some circumstances violate a valid state law, such a violation could not constitutionally be the basis for a permanent denial of the right to associate for the advocacy of ideas by lawful means. As we said at a prior stage in this litigation:

“It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the 'liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.” 357 U. S., at 460.

This Court has repeatedly held that a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. See id., at 463-464. “. . . [T]he power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom.” Cantwell v. Connecticut, 310 U. S. 296, 304. “. . . [E]ven though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.” Shelton v. Tucker, 364 U. S. 479, 488 (footnote omitted). For other cases elaborating this principle, see Lovell v. Griffin, 303 U. S. 444, 451; Schneider v. State, 308 U. S. 147, 161, 165; Martin v. Struthers, 319 U. S. 141, 146-149; Saia v. New York, 334 U. S. 558; American Communications Assn. v. Douds, 339 U. S. 382; Kunz v. New York, 340 U. S. 290, 294-295-; Louisiana ex rel. Gremillion v. NAACP, 366 U. S. 293. This principle is applicable here even though the ouster of the petitioner from Alabama has been accomplished solely by judicial act; “whether legislative or judicial, it is still the application of state power which we are asked to scrutinize.” 357 U. S., at 463.

In the first proceedings in this case, we held that the compelled disclosure of the names of the petitioner's members would entail “the likelihood of a substantial restraint upon the exercise by petitioner’s members of their right to freedom of association.” 357 U. S., at 462. It is obvious that the complete suppression of the Association’s activities in Alabama which was accomplished by the order below is an even more serious abridgment of that right. The allegations of illegal conduct contained in the third charge against the petitioner suggest no legitimate governmental objective which requires such restraint. Compare Kunz v. New York, supra, at 294-295.

The fourth, fifth, and sixth charges against the petitioner all involve alleged “false charges” made by the Association or its representatives against state oficiáis. Without speculating on other possible constitutional infirmities to which these allegations may be subject, cf. New York Times Co. v. Sullivan, 376 U. S. 254, we conclude that, for the reasons discussed above, they furnish no basis for the restriction of the right of the petitioner’s members to associate in Alabama. So too with the seventh charge, which alleges violation of the “temporary” restraining order in effect from 1956 to 1961 (when it was made permanent). We dispose of this charge on the same basis as the others, without considering the sufficiency of the evidence to support the finding that there was a violation of the order or the serious constitutional questions raised by an order which restrained for so long a time the exercise of unquestionable constitutional rights on the grounds involved here. We pass the eighth charge without comment; by no stretch can it be considered germane to the present controversy. The ninth charge, involving alleged breaches of the peace, falls with the third. “There are appropriate public remedies to protect the peace and order of the community . . . ,” Kunz, supra, at 294, which do not infringe constitutional rights. The tenth charge, if it adds anything to those which have gone before, simply challenges the right of the petitioner and its members to express their views, by words and lawful conduct, on a subject of vital constitutional concern. Such a challenge cannot stand.

There is no occasion in this case for us to consider how much survives of the principle that a State can impose such conditions as it chooses on the right of a foreign corporation to do business within the State, or can exclude it from the State altogether. E. g., Crescent Cotton Oil Co. v. Mississippi, 257 U. S. 129, 137. This case, in truth, involves not the privilege of a corporation to do business in a State, but rather the freedom of individuals to associate for the collective advocacy of. ideas. “Freedoms such as . . . [this] are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference.” Bates v. City of Little Rock, 361 U. S. 516, 523. Nor is New York ex rel. Bryant v. Zimmerman, 278 U. S. 63, which involved New York’s application of a regulatory statute to the Ku Klux Klan, more relevant here than it was at the earlier stage of these proceedings where we said that it “involved markedly different considerations in terms of the interest of the State . . . ,” 357 U. S., at 465. The Court noted inter alia, that the Bryant decision was “based on the particular character of the Klan’s activities, involving acts of unlawful intimidation and violence, which the Court assumed was before the state legislature when it enacted the statute, and of which the Court itself took judicial notice.” Ibid.

The judgment below must be reversed. In view of the history of this case, we are asked to formulate a decree for entry in the state courts which will assure the Association’s right to conduct activities in Alabama without further delay. While such a course undoubtedly lies within this Court’s power, Martin v. Hunter’s Lessee, 1 Wheat. 304, we prefer to follow our usual practice and remand the case to the Supreme Court of Alabama for further proceedings not inconsistent with this opinion. Such proceedings should include the prompt entry of a decree, in accordance with state procedures, vacating in all respects the permanent injunction order issued by the Circuit Court of Montgomery County, Alabama, and permitting the Association to take all steps necessary to qualify it to do business in Alabama. Should we unhappily be mistaken in our belief that the Supreme Court of Alabama will promptly implement this disposition, leave is given the Association to apply to this Court for further appropriate relief.

Reversed and remanded.

       Code of Alabama of 1940, Tit. 10, §§ 192-194. See note 9, infra, p. 304.

       This was four days before the date on which, by this Court's order of October 23, 1961, the Federal District Court was to proceed with a trial on the merits if the Alabama courts had not yet granted the petitioner a hearing. See supra.

       The Assignment of Errors is part of the typewritten record filed with this Court.

       There is also a “Conclusion,” which requests reversal of the judgment below.
      The brief is reproduced in Appendix B to the petition for certiorari in this Court; the accuracy of the reproduction is not questioned by the State.

       One assignment of error was not mentioned in the Association’s brief at all, and was deemed waived by the Alabama Supreme Court. 274 Ala., at 549, 150 So. 2d, at 682.

       Rule 9 provides:
      “Appellant’s brief under separate headings shall contain: (a) under the heading ‘Statement of the Case,’ a concise statement of so much of the record as fully presents every error and exception relied upon referring to the pages of the transcript; (b) under the heading ‘Statement of the Facts,’ a condensed recital of the evidence in narrative form so as to present the substance clearly and concisely, referring to the pages of the transcript, and if the insufficiency of the evidence to sustain the verdict or finding, in fact or law, is assigned, then the statement shall contain a condensed recital of the evidence given by each witness in narrative form bearing on the points in issue so as to fully present the substance of the testimony of the witness clearly and concisely; (c) under the heading ‘Propositions of Law/ a concise statement, without argument, of each rule or proposition of law relied upon to sustain the errors assigned, together with the authorities relied upon in support of each, and in citing cases, the names of parties must be given, with the book and page where reported; (d) argument with respect to errors assigned which counsel desire to insist upon. Assignments of error not substantially argued in brief will be deemed waived and will not be considered by the court. The statements made by appellant under the headings 'Statement of the Case’ and 'Statement of the Facts’ will be taken to be accurate and sufficient for decision, unless the opposite party in his brief shall make the necessary corrections or additions.” 261 Ala. XXII.

       The fifth subdivision of the “Argument” section of the petitioner’s brief, which is illustrative of the whole, is as follows:
      “V
      “The evidence discloses that these proceedings are singular in that there is no showing that such proceedings had been taken against any similar foreign corporation since 1918. It is clear from the manner in which these proceedings were instituted, without notice to appellant, that state officials were attempting to misuse the law to oust appellant from the state purely because appellant’s aims and objectives are at variance with views held by state officials. The question of denial of Fourteenth Amendment rights here involved is before the Court under Assignment of Error Number 10. As pointed out in Proposition Number 1, ante, racial discrimination of any kind is unlawful when imposed and enforced by governmental authorities whether in schools, Brown v. Board of Education, supra; recreational facilities, Dawson v. Mayor, supra; in public parks, Holmes v. City of Atlanta, supra; in intrastate commerce, Gayle v. Browder, supra; in interstate commerce, Bailey v. Patterson, supra; and in any and all kinds of public facilities.
      “The courts have consistently struck down state regulations and actions which in purpose and effect seek to impose discrimination. Yick Wo v. Hopkins, 118 U. S. 356; Oyama v. California, 332 U. S. 633; Takahashi v. Fish & Game Commission, 334 U. S. 410.
      “It is also clear that the state may not impose restrictions upon persons to prevent their advocating by lawful means the elimination of racial discrimination and segregation, N. A. A. C. P. v. Alabama, supra. What the state is here attempting to do is to prevent the appellant, and those who work in concert with it, from taking lawful action in opposition to illegal state policy which seeks to perpetuate an unconstitutional pattern of segregation and discrimination, as submitted under Assignment of Error Number 16. In short, the state is using these proceedings to accomplish racial discrimination forbidden by the Fourteenth Amendment, and the judgment herein, in effect, constitutes a forbidden discrimination in violation of the Constitution of tjie United States. .Cf. Gomillion v. Lightfoot, supra.
      “Under these circumstances, denial of appellant's motion for a rehearing was error, as submitted under Assignment of Error Number 23, and a deprivation of due process as guaranteed under the Fourteenth Amendment.”
      The Supreme Court of Alabama dealt with the arguments thus presented as follows:
      “Assignments of error 10, 16 and 23 are argued together in Subsection V of appellant’s brief. No. 10 is unrelated to the others and charges that the court erred in denying appellant's motion for rehearing.
      “It is settled that a decree denying an application for rehearing will not support an appeal; nor is such a decree subject to review on assignments of error on appeal from the final decree. . . . [Citations omitted.]
      “Since assignment of error 10 is without merit and is argued with Nos. 16 and 23, the others are not considered. Taylor v. Taylor, 251 Ala. 374, 37 So. 2d 645.” 274 Ala., at 548-549, 150 So. 2d, at 681-682.
      This is illustrative of the disposition below of the remainder of the petitioner’s “Argument.”

       “The argument section of appellant’s brief is divided into five different subdivisions, each dealing with the argument of two or more assignments of error.” 274 Ala., at 546, 150 So. 2d, at 679. See also the first sentence of the portion of the court’s opinion quoted in note 7, supra, p. 296.

       “Every corporation not organized under the laws of this state shall, before engaging in or transacting any business in this state, file with the secretary of state a certified copy of its articles of incorporation or association and file an instrument of writing, under the seal of the corporation and signed officially by the president and secretary thereof, designating at least one known place of business in this state and an authorized agent or agents residing thereat; and when any such corporation shall amend its articles of incorporation or association, or shall abandon or change its place of business as designated in such instrument, or shall substitute another agent or agents for the agent or agents designated in such instrument of writing, such corporation shall file a new instrument of writing as herein provided, before transacting any further business in this state.
      “Such instrument when filed by a corporation engaged in any business of insurance must be filed in the office of the superintendent of insurance, and when filed by a corporation engaged in any other business than that of insurance must be filed in the office of the secretary of state, and there shall be paid at the same time for filing such instrument to the officer with whom the same is filed the sum of ten dollars for the use of the state.
      “It is unlawful for any foreign corporation to engage in or transact any business in this state before filing the written instrument provided for in the two preceding sections; and any such corporation that engages in or transacts any business in this state without complying with the provisions of the two preceding sections shall, for each offense, forfeit and pay to the state the sum of one thousand dollars.” Code of Alabama of 1940, Tit. 10, §§ 192=194.
      These provisions are carried forward, with some changes, in the Code of Alabama (1958 Recomp.), Tit. 10, §§ 21 (90)-21 (92). Since the Association has been restrained since 1956 from complying with the statutory requirements, the 1940 provisions are applicable to this case.
      The complaint alleged also that the Association wras violating Art. 12, §232, of the Alabama Constitution, which provides:
      “No foreign corporation shall do any business in this state without having at least one known place of business and an authorized agent or agents therein, and without filing with the secretary of state a certified copy of its articles of incorporation or association. Such corporation may be sued in any county where it does business, by service of process upon an agent anywhere in the state. The legislature shall, by general law, provide for the payment to the State of Alabama of a franchise tax by such corporation, but such franchise tax shall be based on the actual amount of capital employed in this state. Strictly benevolent, educational, or religious corporations shall not be required to pay such a tax.”

       Compare, e. g., the provisions of Mass. Gen. Laws Ann., c. 181, § 19; Vermont Statutes Ann., Tit. 11, §861.

       See the second sentence of Art. 12, § 232, of the Alabama Constitution, quoted in note 9, supra.

       The Circuit Court's decree, presumably an exercise of the court's general powers in equity, was not accompanied by any opinion, but was evidently based on the court’s finding that the other allegations of the complaint were proved by the evidence, and, along with the Association’s failure to register, warranted its ouster from the State. (The court reserved the right “at a future date to state in an opinion its full and complete findings of fact and its rulings on the law in this case, with appropriate citations of authorities.” So far as we are presently advised, no opinion has been filed.) Nothing in the decree suggests that the court regarded failure to register by itself as a sufficient basis for ouster under Alabama law.
      Even if Alabama law were otherwise, past failure to register could not constitutionally be made the basis for permanently preventing the Association from registering and thereby denying its members the right to associate in Alabama. See infra, pp. 309-310.
      Since we think it clear from the foregoing that the Association may not, under Alabama law, be ousted from the State merely for failure to register, it is unnecessary for us to consider the petitioner’s other contentions that, as a nonprofit organization, it is exempt from the registration requirement, and that, having knowingly permitted the Association to carry on its activities in Alabama since 1918, the State was barfed by laches from invoking the registration requirement in 1956.

       The “false charges” with which the fourth charge against the Association is concerned were made (and later withdrawn) by Authurine Lucy, in proceedings in the Federal District Court to compel officials in the University of Alabama to vacate an order suspending her from attendance at classes. See Lucy v. Adams, Civ. No. 652, decided in the United States District Court for the Northern District of Alabama on January 24, 1957.
      The fifth and sixth charges against the Association concern the proceedings in this case, and were added to the complaint, along with the fourth charge, by amendment in 1961.


source: Caselaw Access Project

author: Mr. Justice Brennan Mr. Justice Goldberg, Mr. Justice White,

license: Public Domain

text:
    RED BALL MOTOR FREIGHT, INC., et al. v. SHANNON et al., doing business as E. & R. SHANNON.
    No. 406.
    Argued April 28, 1964.
    Decided June 1, 1964

      Amos M. Matheivs argued the cause for appellants in No. 406. With him on the briefs were Phillip Robinson, Charles D. Mathews, Roland Rice and John S. Fessenden.

      Robert W. Ginnane argued the cause for the United States et al. in No. 421. With him on the brief were Solicitor General Cox, Assistant Attorney General Orrick, Lionel Kestenbaum, Elliott Moyer and Fritz R. Kahn.

      Walter C. Wolff, Jr. argued the cause and filed a brief for appellees in both cases.

      Briefs of amici curiae, urging reversal, were filed by Robert E. Redding for the Transportation Association of America, by James E. Wilson for the Common Carrier Conference — -Irregular Route of the American Trucking Associations, Inc., and by Joseph E. Keller and William H. Borghesani, Jr. for the Private Carrier Conference, Inc.

      Together with No. 421, United States et al. v. Shannon et al., doing business as E. & R. Shannon, also on appeal from the same court.

   Mr. Justice Brennan

delivered the opinion of the Court.

The Interstate Commerce Act provides that it is unlawful for any person engaged in a business other than transportation to “transport property by motor vehicle in interstate or foreign commerce for business purposes unless such transportation is within the scope, and in furtherance, of a primary business enterprise (other than transportation) of such person.” §203 (c), 49 U. S. C. § 303 (c). Appellees deal in livestock and commodities from a place of business in San Antonio, Texas. They make deliveries in their own trucks to customers in Louisiana, and buy sugar at Supreme, Louisiana, which they backhaul 525 miles for resale to customers in San Antonio. The Interstate Commerce Commission held that this backhaul was not exempt under § 203 (c) as “transportation . . . within the scope, and in furtherance, of a primary business enterprise . . of appellees, but was “conducted with the purpose of profiting from the transportation performed, and, as such, constitutes for-hire carriage for which operating authority from this Commission is required.” 81 M. C. C. 33/, 347. A three-judge court in the District Court for the Western District of Texas set aside the ICC order. 219 F. Supp. 781. We noted probable jurisdiction. 375 U. S. 901. We affirm.

Section 203 (c) was designed explicitly to authorize the ICC to eliminate transportation which, though carried on in the guise of private carriage, was in effect for-hire carriage, and thus might lawfully be carried on only by an authorized common or contract carrier. Before the enactment of § 203 (c) the ICC was able to reach such abuses by interpreting § 203 (a) (17), 49 U. S. C. § 303 (a) (17), so as to exclude such “pseudo-private” carriage from its definition of a “private carrier of property by motor vehicle” as a person, not a “common” or “contract” carrier, who transports property of which he “is the owner, lessee, or bailee, when such transportation is for the purpose of sale, lease, rent, or bailment, or in furtherance of any commercial enterprise.” Many of the cases involved nonauthorized carriers in the transportation business who resorted to transparent “buy-and-sell” devices to evade ICC regulation. A typical buy-and-sell arrangement is one under which the carrier “buys” property at a shipping point, transports it to a delivery point and there “sells” it to the real purchaser, the “profit” to the carrier amounting to the price of the transportation between the two points. Similar evasions through the use of spurious buy-and-sell agreements were found in cases where property was transported in trucks regularly used by noncarrier businesses to make pickups and deliveries. The ICC was faced with the necessity of determining on the facts of each case whether the transportation constituted private carriage beyond the scope of ICC economic regulation, or for-hire transportation subject to all relevant provisions of the Act. In other words, here, as in United States v. Drum, 368 U. S. 370, 374, in which we dealt with another aspect of the “pseudo-private” carriage problem, the ICC has also “had to decide whether a particular arrangement gives rise to that ‘for-hire’ carriage which is subject to economic regulation in the public interest, or whether it is, in fact, private carriage as to which Congress determined that the [noncarrier’s] interest . . . should prevail.”

In the course of discriminating between this pseudo-private carriage and that transportation which was in fact in furtherance of a noncarrier business, the ICC developed the so-called “primary business” test. This test was first enunciated by the full Commission in Lenoir Chair Co., 51 M. C. C. 65, ail’d, sub nom. Brooks Transportation Co. v. United States, 93 F. Supp. 517, aff’d, 340 U. S. 925. A chair manufacturer delivered some of its products in its own trucks. Whenever possible, it also used the vehicles to backhaul manufacturing materials for use and processing in its own plant. The ICC concluded, 51 M. C. C., at 76, that the delivery of goods and the backhaul were lawful private carriage because undertaken “as a bona fide incident to and in furtherance of [its] primary business . . . The governing standard was stated as follows, id., at 75:

“If the facts establish that the primary business of an operator is the supplying of transportation for compensation then the carrier’s status is established though the operator may be the owner, at the time, of the goods transported and may be transporting them for the purpose of sale. ... If, on the other hand, the primary business of an operator is found to be manufacturing or some other noncarrier commercial enterprise, then it must be determined whether the motor operations are in bona fide furtherance of the primary business or whether they are conducted as a related or secondary enterprise with the purpose of profiting from the transportation performed. In our opinion, they cannot be both.”

The ICC believed, however, that § 203 (a) (17) was not sufficiently explicit, particularly since decisions of some lower courts after Brooks raised doubts whether a truck operator could be found to be an unauthorized “for-hire” carrier in the absence of some affirmative showing that his operations brought him within the definitions of common or contract carriage. Consequently the Commission sought additional legislation. The original ICC bill in this area would have amended the definition of “private carrier” in § 203 (a) (17) to prohibit the buy-and-sell device employed by pseudo-private carriers as a subterfuge to avoid regulation. See S. 1677, H. R. 5825, 85th Cong., 1st Sess. This was withdrawn, however, in favor of a more broadly phrased provision, sponsored by the Transportation Association of America, which encompassed not only buy-and-sell devices, but also similar subterfuges which might be employed to engage in unauthorized for-hire transportation. The second clause of § 203 (c) is substantially the TAA proposal.

The 1958 amendment appears on its face to codify the primary business test as the standard for determining whether a particular carrier is engaged in a private or for-hire operation. The appellants argue, however, that the amendment was intended to impose a broader limitation in the case of backhaul operations of the kind engaged in by appellees. The United States urges in its brief that Congress in 1958 was particularly concerned with the diversion of traffic from regulated carriers by backhauling operations, and that one object of the 1958 amendment was “to make plain that the purchase and sale of goods solely to take advantage of available backhaul capacity cannot qualify as a 'primary business enterprise (other than transportation).’ ” We understand this argument to be that Congress in effect enacted a per se test outlawing trucking operations limited to backhaul capacity without inquiry into whether that operation was undertaken pursuant to a bona fide noncarrier business enterprise. We find no support in either the words of the amendment or its legislative history for putting that gloss upon the amendment. On the contrary, we are persuaded that Congress meant only to codify the primary business test which, as applied by the ICC, requires an analysis of the backhaul operation in the factual setting of .each case.

The legislative history fully supports this view. The ICC Chairman, speaking in support of the TAA amendment, expressly stated that, in his view, its effect would be to “incorporate the primary business test into the statute.” Similarly, the President of TAA, speaking directly to the backhaul problem, said that “Our proposal . . . would affect . . . the carrier who delivers his own goods in one direction, as a legal private carrier, but then resorts to the buy-and-sell practice to get a return load.” The Senate and House Reports, while less crystal clear, nevertheless reveal no purpose beyond codification of the Brooks test. Thus the Senate Report states that the amendment “accurately reflects the holding in the Brooks case.” Although the House Report includes a discussion of the backhaul problem in language which tracks the statement in the ICC 1953 Annual Report — where the Commission first directed the attention' of Congress to the problem of buy-and-sell arrangements — the House Report concludes: “There is no intention on the part of this Committee in any way to jeopardize or interfere with bona fide private carriage, as recognized in the Brooks case.” Moreover, the managers of the bills in both Senate and House gave assurances that the object of the amendment was to incorporate the primary business test into positive law. No application of the primary business test by the ICC or the courts gave conclusive effect to backhauling. The critical determination made in each case was between spurious buy-and-sell arrangements, whether or not as part of a backhaul, and a true wholesaling operation utilizing the operator’s own trucks. Backhauls were treated as merely one aspect of the buy-and-sell problem, since the presence of backhaul capacity presents a special temptation to indulge in pseudo-private carriage.

We therefore conclude that § 203 (c) merely codifies the primary business test, and embodies no outright prohibition of backhauling practices. The statutory scheme recognizes that mere availability and use of backhaul capacity may in particular cases be completely consistent with the bona fide conduct of a noncarrier business. Thus the question in this case is a narrow one: whether, applying the standards developed under the primary business test, appellees’ backhauling of sugar was within the scope, and in furtherance, of a primary, noncarrier business.

In developing and applying the primary business standard, the ICC has elaborated criteria characteristic of the spurious buy-and-sell device. Among these are the large investment of assets or payroll in transportation operations; negotiating the sale of goods transported in advance of dispatching a truck to pick them up; direct delivery of the transported goods from the truck to the ultimate buyer, rather than from warehoused stocks; solicitation of the order by the supplier rather than the truck owner; and inclusion in the sales price of an amount to cover transportation costs.

We are not persuaded from our examination of the record that there is sufficient evidence to support the ICC’s conclusion that the appellees’ sugar operation was for-hire transportation and not transportation within the scope, and in furtherance, of appellees’ noncarrier business enterprise. The ICC found that appellees “have long been buying and selling certain commodities and in connection therewith transporting them to purchasers, in bona fide furtherance of their primary business, as a dealer in those commodities.” 81 M. C. C., at 345. The ICC found further that “The more usual arrangement under which [appellees] operate . . . appears to be one in which the [appellees] have no preexisting sugar order, but buy with the intention of selling later either en route or after the transportation is accomplished. This procedure is ordinarily coordinated with a backhaul, and the purpose of their sugar dealings is the generation of sugar shipments which they can transport as return lading for their trucks which are moving in the opposite direction.” 81 M. C. C., at 346. But these findings, on this record, are consistent with an operation “within the scope, and in furtherance, of a primary business enterprise.” Appel-lees began their business in 1934 as dealers in livestock. They gradually added a feed mill and the buying and selling of corn, oats, wheat, bran, molasses, salt and fertilizer. They added sugar in 1954. Moreover, in addition to the absence of the element — usually found in spurious buy-and-sell arrangements — of obtaining orders for a commodity (in this case sugar) before purchasing it, other indicia are absent. Appellees’ assets are not in large part composed of transportation facilities, nor is transportation a major item of expense; appellees bear the full risk of damage in transit and, since they sell at market price, also of loss in value due to price changes; they buy the sugar on credit with a discount for payment in 10 days, and sell on the same terms; their sugar accounts receivable at the date of hearing exceeded $10,000, and amounted to $20,000 or $30,000 during the previous year. It is true that they warehoused only a small stock of sugar and that generally the trucks delivered the sugar directly to buyers upon, or within a day or two after, arrival in San Antonio. Appellees offered an entirely reasonable explanation for this, however: sugar is a perishable commodity, the preservation of which apparently requires air conditioning facilities with which their warehouse is not equipped; the ICC offered nothing to the contrary. And the ICC offered no evidence that other sugar dealers in San Antonio conducted their businesses differently from appellees. It is also true that since the motor carrier rate for transporting sugar from Supreme is 69 cents, and the rail rate $1.09 per hundred pounds, appellees could not have conducted the sugar business but for the availability of the backhaul capacity of their trucks. This shows no more than that appellees were able to make efficient use of their equipment; on these facts it does not prove, as the ICC found, that the “transportation ... is, with respect to their primary business of buying and selling livestock and certain other commodities, a related or secondary enterprise conducted with the purpose of profiting from the transportation performed . . . 81 M. C. C., at 347. We agree with the District Court that, rather, “The record clearly indicates that [appellees] are in a general mercantile business buying and selling many items, including sugar.” 219 F. Supp., at 782. As such, on the facts shown, their purchase of sugar at Supreme to provide a backhaul in connection with outbound movements of livestock and other commodities from San Antonio is within the scope, and in furtherance, of their primary general mercantile business enterprise.

Affirmed.

Mr. Justice Goldberg,

with whom Mr. Justice Harlan, Mr. Justice Stewart and Mr. Justice White join,

dissenting.

I agree with the Court “that § 203 (c) merely codifies the primary business test,” ante, at 318, enunciated by the Commission in the Brooks case. I also agree that “the primary business test ... , as applied by the ICC, requires an analysis of the backhaul operation in the factual setting of each case.” ' Ante, at 317.

This is all that we need and should decide. The Court errs, in my view, in deciding the purely factual question of “whether, applying the standards developed under the primary business test, appellees’ backhauling of sugar was within the scope, and in furtherance, of a primary, noncarrier business.” Ante, at 318.

The primary responsibility for granting or denying enforcement of Commission orders is in the District Courts and not in this Court. 28 U. S. C. § 1336; cf. Labor Board v. Pittsburgh Steamship Co., 340 U. S. 498, 502. The District Court in enjoining enforcement of the Commission’s order in this case did not refer explicitly or implicitly to § 203 (c) of the Act. It did not cite any cases enunciating the “primary business test” as a basis for its decision. Moreover, the District Court did not discuss the facts upon which the Commission based its determination that appellees’ backhaul transportation of sugar was not within the scope and in furtherance of a primary business enterprise other than transportation. See 219 F. Supp. 781; compare United States v. Drum, 368 U. S. 370, 385.

Having determined, as the Court does, that § 203 (c) codifies the primary business test, I would remand the case to the District Court for that court to decide the issue of unsubstantiality of the evidence under the proper test. Under this disposition of the case, the District Court would have to be mindful that this is the kind of case which “belongs to the usual administrative routine” of the agency, Gray v. Powell, 314 U. S. 402, 411, and that the Commission’s application of the statutory test to the specific facts of this case “is to be accepted if it has ‘warrant in the record’ and a reasonable basis in law.” Labor Board v. Hearst Publications, Inc., 322 U. S. 111, 131; United States v. Drum, supra, at 386.

Mr. Justice White,

dissenting.

I join the dissenting opinion of my Brother Goldberg. I add that the Court has failed to demonstrate how appel-lees’ sugar business qualifies as a “primary” business when it clears only 35 cents per 100 pounds of sugar over and above the cost of the sugar at Supreme, Louisiana. This is less than the normal costs of transportation from Supreme to San Antonio. No one without backhaul capacity could make a viable business out of selling Supreme sugar in the San Antonio market and appellees admit that they are “backhauling to make a profit.” I therefore cannot view the sugar business as a bona fide primary business to which a private transportation operation is only an incident. It would be more appropriate to say that this catch-as-catch-can sugar business is wholly incidental to an otherwise empty backhaul.

       Section 203 (c), as added in 1957, 71 Stat. 411, provided in pertinent part:
      . .no person shall engage in any for-hire transportation business by motor vehicle, in interstate or foreign commerce . . . unless there is in force with.respect to such person a certificate or a permit issued by the Commission authorizing such transportation.”
      In 1958, 72 Stat. 574, the section was amended to add the provision here involved providing,
      “nor shall any person engaged in any other business enterprise transport property by motor vehicle in interstate or foreign commerce for business purposes unless such transportation is within the scope, and in furtherance, of a primary business enterprise (other than transportation) of such person.”

       The 1957 version of § 203 (c) was enacted after the examiner submitted his report but as amended in 1958 was part of the Interstate Commerce Act when Division 1 of the Commission served its report.

       Appellees’ action was brought pursuant to 28 U. S. C. §§ 1336, 1398. The statutory three-judge court was convened under 28 U. S. C. § 2325.

       See, e. g., Lyle H. Carpenter, 2 M. C. C. 85; B. E. Farnsworth, 4 M. C. C. 164; Thomas Stanley Redding, 7 M. C. C. 608; ICC v. Tank Car Oil Corp., 151 F. 2d 834 (C. A. 5th Cir.).

       See, e. g., T. J. McBroom, 1 M. C. C. 425; Triangle Motor Co., 2 M. C. C. 485. Cf. Congoleum-Naim, Inc., 2 M. C. C. 237.

       See, e. g., ICC v. Woodall Food Prods. Co., 207 F. 2d 517 (C. A. 5th Cir.); Taylor v. ICC, 209 F. 2d 353 (C. A. 9th Cir.). See the discussion of Taylor in the Commission’s Sixty-eighth Annual Report (1954), p. 82.

       The Commission pressed for amendments in its Annual Reports from 1953 through 1957: 1953 Report, p. 55; 1954 Report, p. 5; 1955 Report, p. 99; 1956 Report, p. 2; 1957 Report, pp. 137-138.

       In amending §203 (c) rather than the definitional sections, the TAA proposal also met the protests of private carriers who opposed ICC’s proposal on the ground that it might be construed to throw doubt on the Brooks test, and unduly restrict the scope of private carriage. See Remarks of Frazor T. Edmondson, Private Truck Council of America, Hearings before a Subcommittee of the Senate Committee on Interstate and Foreign Commerce on S. 1384, 85th Cong., 1st Sess., 163 (1957); Remarks of R. J. Van Liew, Private Carrier Conference, American Trucking Associations, id., at 275.

       See Remarks of Chairman Clarke, Hearings before a Subcommittee of the Senate Committee on Interstate and Foreign Commerce on S. 1384, 85th Cong., 1st Sess., 13, 19 (1957).

       See Statement of Mr. Baker, President, Transportation Association of America, id., at 244, 246.

      S. Rep. No. 1647, 85th Cong., 2d Sess., 5 (1958).

       In its 1953 Annual Report the Commission said (p. 55):
      “Merchandising by motortruck, whether actual or pretended, over long distances is increasing to such an extent that it is becoming a major factor in the transportation of freight between distant points. Manufacturers and mercantile establishments, which deliver in their own trucks articles which they manufacture or sell, are increasingly purchasing merchandise at or near their point of delivery and transporting such articles to their own terminal for sale to others. Such transportation is performed for the purpose of receiving compensation for the otherwise empty return of their trucks. Sometimes the purchase and sale is a bona fide merchandising venture. In other cases, arrangements are made with the consignee of such merchandise for the 'buy-and-sell' arrangement in order that the consignee may receive transportation at a reduced cost.” Compare H. R. Rep. No. 1922, 85th Cong., 2d Sess., 18 (1958).

       See id., at 19.

      See 104 Cong. Rec. 12535-12536 (1958) (House); 104 Cong. Rec. 10818 (1958) (Senate).

       See Virgil P. Stutzman, 81 M. C. C. 223, 226; Joseph V. Hofer, 84 M. C. C. 527, 540.

       See Lyle H. Carpenter, 2 M. C. C. 85, 86; Thomas Stanley Redding, 7 M. C. C. 608, 609; Jay Cee Transport Co., 68 M. C. C. 758, 759; Church Point Wholesale Beverage Co., 82 M. C. C. 457, 459, aff'd, sub nom. Church Point Wholesale Beverage Co. v. United States, 200 F. Supp. 508 (D. C. W. D. La.).

       See L. A. Woitishek, 42 M. C. C. 193; Jay Cee Transport Co., supra; William Stewart, 89 M. C. C. 281, 286.

       See Subler Transfer, Inc., 79 M. C. C. 561, 565; Riggs Dairy Express, Inc., 78 M. C. C. 574, 575-576; Donald L. Wilson, 82 M. C. C. 651, 661.

       See Riggs Dairy Express, Inc., supra.

        Lenoir Chair Co., 51 M. C. C. 65, aff’d, sub nom. Brooks Transportation Co., Inc.., v. United States, 93 F. Supp. 517, aff’d, 340 U. S. 925.


author: Mr. Justice Stewart Mr. Justice Black,

text:
    HOSTETTER et al. v. IDLEWILD BON VOYAGE LIQUOR CORP.
    No. 116.
    Argued March 23, 1964.
    Decided June 1, 1964.

      Irving Galt, Assistant Solicitor General of New York, argued the cause for appellants. With him on the briefs were Louis J. Lefkowitz, Attorney General of New York, and George D. Zuckerman, Assistant Attorney General.

      Charles H. Tuttle argued the cause for appellee. With him on the brief was John F. Kelly.

   Mr. Justice Stewart

delivered the opinion of the Court.

The Twenty-first Amendment to the Constitution, which repealed the Eighteenth, provides in its second section that “The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in viola^ tion of the laws thereof, is hereby prohibited.” This appeal requires consideration of the relationship of this provision of the Twenty-first Amendment to other provisions of the Constitution, particularly the Commerce Clause.

The appellee (Idlewild) is engaged in the business of selling bottled wines and liquors to departing international airline travelers at the John F. Kennedy Airport in New York. Its place of business is leased from the Port of New York Authority for use solely as “an office in connection with the sale ... of in-bond wines and liquors.” Idlewild accepts orders only from travelers whose tickets and boarding cards indicate their imminent departure. A customer gets nothing but a receipt at the time he gives his order and makes payment. The liquor which he orders is transferred directly to the departing aircraft on documents approved by United States Customs, and is not delivered to the customer until he arrives at his foreign destination.

The beverages sold by Idlewild are purchased by it from bonded wholesalers located outside New York State who deal in tax-free liquors for export. Merchandise ordered by Idlewild is withdrawn from bonded warehouses on approved Customs documents, copies of which are mailed by the wholesalers both to Idlewild and to the United States Customs Office at the airport. A third sealed copy of the document is given to the bonded trucker who delivers it to the Customs Office at the airport after he has transported the shipment to Idlewild’s place of business. The contents of each shipment are recorded by Idlewild, as are withdrawals from inventory whenever a sale is made, and when an entire shipment has been sold, these records are turned over to Customs officials. Idlewild’s records and its physical inventory, as well as the transfer of the liquor from the bonded trucks to Idlewild’s premises and from those premises to the departing aircraft, are at all times open to inspection by the Bureau of Customs. Before Idlewild commenced these business operations in 1960, the Bureau of Customs inspected its place of business and explicitly approved its proposed method of operations.

Idlewild commenced doing business in the spring of 1960. A few weeks later, the New York State Liquor Authority, whose members are the appellants in this case, informed Idlewild, upon the advice of the Attorney General of New York, that its business was illegal under the provisions of the New York Alcoholic Beverage Control Law, because the business was unlicensed and unlicensable under that law. Idlewild thereupon brought the present action for an injunction restraining the appellants from interfering with its business, and for a judgment declaring that the provisions of the New York statute, as applied to its business, were repugnant to the Commerce Clause of the Constitution, and, under the Supremacy-Clause, to the Tariff Act of 1930, under which the Bureau of Customs had approved Idlewild’s business operations.

After lengthy procedural delays, a three-judge District Court granted the requested relief. 212 F. Supp. 376. The court expressed doubt that the New York Alcoholic Beverage Control Law was intended to apply to a business such as that carried on by Idlewild, both because of the manifest irrelevance to such a business of many of the law’s provisions, and because the New York courts had held that the law was inapplicable to the sale of liquor in the Free Trade Zone of the Port of New York. During v. Valente, 267 App. Div. 383, 46 N. Y. S. 2d 385. See also Rosenblum v. Frankel, 279 App. Div. 66, 108 N. Y. S. 2d 6. In view of the posture of the litigation, the court declined, however, to defer deciding the merits of the controversy pending a construction of the statute by the New York courts, although recognizing that “a technical application of the doctrine of abstention” would under ordinary circumstances counsel such a course.

On the merits the court concluded, after reviewing the relevant cases, that the Commerce Clause rendered constitutionally impermissible New York’s attempt wholly to terminate Idlewild’s business operations. The court conceded that New York has broad power under the Twenty-first Amendment to supervise and regulate the transportation of liquor through its territory for the purpose of guarding against a diversion of such liquor into domestic channels, but pointed out that “the Liquor Authority has neither alleged nor proved the diversion of so much as one bottle of plaintiff’s merchandise to users within the state of New York.” 212 F. Supp., at 386. We noted probable jurisdiction, 375 U. S. 809, and for the reasons which follow, we affirm the judgment of the District Court.

We hold first that the District Court did not err in declining to defer to the state courts before deciding this controversy on its merits. The doctrine of abstention is equitable in its origins, Railroad Comm’n v. Pullman Co., 312 U. S. 496, 500-501, and this Court has held that, even though constitutional issues be involved, “reference to the state courts for construction of the statute should not automatically be made.” N. A. A. C. P. v. Bennett, 360 U. S. 471. Unlike many cases in which abstention has been held appropriate, there was here no danger that a federal decision would work a disruption of an entire legislative scheme of regulation. We therefore accept the District Court’s decision that abstention was unwarranted here, where neither party requested it and where the litigation had already been long delayed, despite the plaintiff’s efforts to expedite the proceedings.

Turning, then, to the merits of this controversy, the basic issue we face is whether the Twenty-first Amendment so far obliterates the Commerce Clause as to empower New York to prohibit absolutely the passage of liquor through its territory, under the supervision of the United States Bureau of Customs acting under federal law, for delivery to consumers in foreign countries. For it is not disputed that, if the commodity involved here were not liquor, but grain or lumber, the Commerce Clause would clearly deprive New York of any such power. Lemke v. Farmers Grain Co., 258 U. S. 50; Texas & N. O. R. Co. v. Sabine Tram Co., 227 U. S. 111; Oklahoma v. Kansas Nat. Gas Co., 221 U. S. 229.

This Court made clear in the early years following adoption of the Twenty-first Amendment that by virtue of its provisions a State is totally unconfined by traditional Commerce Clause limitations when it restricts the importation of intoxicants destined for use, distribution, or consumption within its borders. Thus, in upholding a State’s power to impose a license fee upon importers of beer, the Court pointed out that “[p]rior to the Twenty-first Amendment it would obviously have been unconstitutional to have imposed any fee for that privilege. The imposition would have been void, . . . because the fee would be a direct burden on interstate commerce; and the commerce clause confers the right to import merchandise free into any state, except as Congress may otherwise provide.” State Board v. Young’s Market Co., 299 U. S. 59, 62. In the same vein, the Court upheld a Michigan statute prohibiting Michigan dealers from selling beer manufactured in a State which discriminated against Michigan beer. Brewing Co. v. Liquor Comm’n, 305 U. S. 391. “Since the Twenty-first Amendment, . . . the right of a state to prohibit or regulate the importation of intoxicating liquor is not limited by the commerce clause . . . .” Id., at 394. See also Finch & Co. v. McKittrick, 305 U. S. 395.

This view of the scope of the Twenty-first Amendment with respect to a State’s power to restrict, regulate, or prevent the traffic and distribution of intoxicants within its borders has remained unquestioned. See California v. Washington, 358 U. S. 64. Thus, in Ziffrin, Inc., v. Reeves, 308 U. S. 132, there was involved a Kentucky statute, “a long, comprehensive measure (123 sections) designed rigidly to regulate the production and distribution of alcoholic beverages through means of licenses and otherwise. The manifest purpose is to channelize the traffic, minimize the commonly attendant evils; also to facilitate the collection of revenue. To this end manufacture, sale, transportation, and possession are permitted only under carefully prescribed conditions and subject to constant control by the State.” Id., at 134. The Court upheld a provision of that “comprehensive measure” which prohibited a domestic manufacturer of liquor from delivering his product to an unlicensed private carrier. The Court noted that “Kentucky has seen fit to permit manufacture of whiskey only upon condition that it be sold to an indicated class of customers and transported in definitely specified ways. These conditions are not unreasonable and are clearly appropriate for effectuating the policy of limiting traffic in order to minimize well-known evils, and secure payment of revenue. The statute declares whiskey removed from permitted channels contraband subject to immediate seizure. This is within the police power of the State; and property so circumstanced cannot be regarded as a proper article of commerce.” Id., at 139.

To draw a conclusion from this line of decisions that the Twenty-first Amendment has somehow operated to “repeal” the Commerce Clause wherever regulation of intoxicating liquors is concerned would, however, be an absurd oversimplification. If the Commerce Clause had been pro tanto “repealed,” then Congress would be left with no regulatory power over interstate or foreign commerce in intoxicating liquor. Such a conclusion would be patently bizarre and is demonstrably incorrect. In Jameson & Co. v. Morgenthau, 307 U. S. 171, “the Federal Alcohol Administration Act was attacked upon the ground that the Twenty-first Amendment to the Federal Constitution gives to the States complete and exclusive control over commerce in intoxicating liquors, unlimited by the commerce clause, and hence that Congress has no longer authority to control the importation of these commodities into the United States.” The Court’s response to this theory was a blunt one: “We see no substance in this contention.” Id., at 172-173. See also United States v. Frankfort Distilleries, 324 U. S. 293. (Sherman Act.)

Both the. Twenty-first Amendment and the Commerce Clause are parts of the same Constitution. Like other provisions of the Constitution, each must be considered in the light of the other, and in the context of the issues and interests at stake in any concrete case.

This principle is reflected in the Court’s decision in Collins v. Yosemite Park Co., 304 U. S. 518. There it was held that the Twenty-first Amendment did not give California power to prevent the shipment into and through her territory of liquor destined for distribution and consumption in a national park. The Court said that this trafile did not involve “transportation into California 'for delivery or use therein’ ” within the meaning of the Amendment. “The delivery and use is in the Park, and under a distinct sovereignty.” Id., at 538. This ruling was later characterized by the Court as holding “that shipment through a state is not transportation or importation into the state within the meaning of the Amendment.” Carter v. Virginia, 321 U. S. 131, 137. See also Johnson v. Yellow Cab Co., 321 U. S. 383, aff’g, 137 F. 2d 274.

We may assume that if in Collins California had sought to regulate or control the transportation of the liquor there involved from the time of its entry into the State until its delivery at the national park, in the interest of preventing unlawful diversion into her territory, California would have been constitutionally permitted to do so. But the Court held that California could not prevent completely the transportation of the liquor across the State’s territory for delivery and use in a federal enclave within it.

A like accommodation of the Twenty-first Amendment with the Commerce Clause leads to a like conclusion in the present case. Here, ultimate delivery and use is not in New York, but in a foreign country. The State has not sought to regulate or control the passage of intoxicants through her territory in the interest of preventing their unlawful diversion into the internal commerce of the State. As the District Court emphasized, this case does not involve “measures aimed at preventing unlawful diversion or use of alcoholic beverages within New York.” 212 F. Supp., at 386. Rather, the State has sought totally to prevent transactions carried on under the aegis of a law passed by Congress in the exercise of its explicit power under the Constitution to regulate commerce with foreign nations. This New York cannot constitutionally do.

Affirmed.

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

Mr. Justice Black,

with whom Mr. Justice Goldberg joins,

dissenting.

The appellee, Idlewild Bon Voyage Liquor Corporation, buys wines and intoxicating liquors from bonded wholesale warehouses, brings them into the State of New York, and sells them at retail in the John F. Kennedy Airport. Idlewild does not have and cannot obtain a New York license; therefore its business is in violation of New York law. Idlewild keeps a stock of liquor in New York under Customs inspection, and customers come into Idlewild’s shop, choose the kind of liquor they want, and pay for it. These retail sales are just like sales made by New York’s licensed and regulated liquor dealers, with a single difference: other New York retailers normally make delivery across the counter while Idlewild arranges with its customers to put their purchases, under United States Customs supervision, aboard planes so that the customers take physical possession of the liquor, not in New York, but at destinations abroad. The airport where the sales take place is not a federal enclave where even as to liquor federal law can constitutionally control, but is New York territory subject to New York, not federal, jurisdiction. The Court nevertheless strikes down New York’s law barring Idlewild from selling intoxicating liquors in New York. The ground for invalidating the law is that it conflicts with the Commerce Clause and with Treasury regulations promulgated under 19 U. S. C. § 1311 under which Idlewild’s sales and deliveries to foreign-bound planes are for customs purposes supervised by Customs officials. I think, however, that while Customs officials have the right to perform their duties relative to customs, the Twenty-first Amendment confers exclusive jurisdiction upon the State of New York to regulate all liquor business carried on in New York. Section 2 of this Amendment, which became effective December 1933, provides:

“The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.”

Even though the language of this Amendment clearly leaves the States free to control the importation of and traffic in liquors within their boundaries, it was argued in State Board v. Young’s Market Co., 299 U. S. 59 (1936), that it would be a violation of the Commerce Clause and of the Equal Protection Clause for a State to require a fee of persons importing beer from outside the State. Pointing out that such a discrimination would have violated the Commerce Clause before adoption of the Twenty-first Amendment, this Court held that since that Amendment a State was not required to “let imported liquors compete with the domestic on equal terms. To say that, would involve not a construction of the Amendment, but a rewriting of it.” Id., at 62. The Court went on to hold that the claim that the State’s discriminatory “statutory provisions and the regulations are void under the equal protection clause may be briefly disposed of. A classification recognized by the Twenty-first Amendment cannot be deemed forbidden by the Fourteenth.” Id., at 64. Following the Young’s Market case, this Court has said and repeated that since the Twenty-first Amendment “the right of a State to prohibit or regulate the importation of intoxicating liquor is not limited by the commerce clause.” Joseph S. Finch & Co. v. Mc-Kittrick, 305 U. S. 395, 398 (1939); Indianapolis Brewing Co. v. Liquor Control Comm’n, 305 U. S. 391, 394 (1939). The principles of these cases have been uniformly followed until today. E. g., California v. Washington, 358 U. S. 64 (1958); Ziffrin, Inc., v. Reeves, 308 U. S. 132 (1939). The Court today attempts to distinguish this case from our previous cases, but I find myself unpersuaded by the Court’s distinction.

In Young’s Market, the Court found it so clear that the “broad language” of the Twenty-first Amendment gave States exclusive power to regulate or tax liquor transactions in those States that it rather impatiently refused to consider the Amendment’s history urged in limitation of that language. Young’s Market, supra, 299 U. S., at 63-64. I agree with Justice Brandéis that history should not be necessary to prove what is obvious. But now that the Amendment is interpreted in a way that takes away part of the power that I think was given to the States by the Amendment and confers it on Customs officials, it becomes appropriate to look to the history of the Amendment’s adoption. As reported by the Senate Committee on the Judiciary in S. J. Res. 211, 72d Cong., 2d Sess., the proposed amendment provided in Section 2, “The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” 76 Cong. Rec. 4138 (1933). That language is in the present Amendment. But the proposal also' contained a Section 3, not found in the present Amendment; that Section provided, “Congress shall have concurrent power to regulate or prohibit the sale of intoxicating liquors to be drunk on the premises where sold.” Ibid. Proposing to leave even this remnant of federal control over liquor traffic gave rise to the only real controversy over the language of the proposed Amendment. Senator Wagner of New York, who could not have known that his State would because of today’s opinion be the first to be denied control of liquor traffic within the State, opposed Section 3 because it would defeat the proposed Amendment’s purpose “to restore to the States control of their liquor problem.” Id., at 4145. Senator Wagner argued that giving the Federal Government even “apparently limited power” would allow that power to be “extended to boundaries now undreamed of and unsuspected” by those supporting the proposed Amendment. Id., at 4147. It is clear that the opposition to Section 3 and its elimination from the proposed Amendment rested on the fear, often voiced during the Senate debate, that any grant of power to the Federal Government, even a seemingly narrow one, could be used to whittle away the exclusive control over liquor traffic given the States by Section 2. Having heard those fears expressed, Senator Robinson of Arkansas, the Senate Majority Leader, asked for a vote “to strike out section 3.” Id., at 4171. It was because of these fears that the Senate then voted to take Section 3 out of the proposed Amendment while retaining Section 2 and its broad grant of power to the States. Id., at 4179.

During the debate the Senators brought out quite clearly what plenary powers Section 2, as it now appears in the Twenty-first Amendment, meant to give the States. Senator Blaine of Wisconsin, chairman of the subcommittee which had held hearings on the resolution and floor manager of the resolution in the Senate, agreed that Section 3 "ought to be taken out of the resolution” and Section 2 left in, because the “purpose of section 2 is to restore to the States by constitutional amendment absolute control in effect over interstate commerce affecting intoxicating liquors which enter the confines of the States.” Id., at 4143. Speaking of the same section, Senator Walsh of Montana, also a member of the subcommittee, said, “The purpose of the provision in the resolution reported by the committee was to make the intoxicating liquor subject to the laws of the State once it passed the State line and before it gets into the hands of the consignee as well as thereafter.” Id., at 4219.

The legislative history, of which these passages are typical, should be enough to prove that when the Senators agreed to Section 2 they thought they were returning “absolute control” of liquor traffic to the States, free of all restrictions which the Commerce Clause might before that time have imposed. Moreover, by rejecting Section 3, they thought they were seeing to it that the Federal Government could not interfere with or restrict the State's exercise of the power conferred by the Amendment. Therefore, that the liquor in this case is supervised by United States Customs officials for customs purposes is immaterial. The Amendment promises that each State shall decide what is best for itself in regulating liquor traffic within its boundaries, and the Amendment no more empowers Customs officials to make that decision for a State than it empowers Congress to make it. This view was forcefully expressed by Senator Wagner, who, when urging that Section 3 be eliminated from the proposed Amendment and the States be given complete control of liquor traffic, said: “let the people of each State deal with that subject, and they will do it more effectively and more successfully than the Federal Government has done, because it is not the business of the Federal Government.” Id., at 4146.

That the liquors involved in this case have, in Walsh’s and Blaine’s words, “passed the State line” and “enter [ed] the confines” of the State is beyond dispute. The debates from which I have quoted show that the Senators intended that, once the liquors should enter New York, they would be subject to the “absolute control” of that State. The Twenty-first Amendment promises New York no less.

Idlewild’s liquors, once in the State, are sold at retail to airline passengers at Kennedy Airport. No one disputes that Idlewild thus competes with other New York liquor dealers for the trade of these consumers of liquor. To allow this business to go unregulated by New York is to interfere with the regulatory power which this Court, in State Board v. Young’s Market Co., supra, said each State has under the Twenty-first Amendment. There, id., at 63, the Court said that a State is perfectly free to set up a state liquor monopoly or to confer a liquor monopoly upon some one dealer in the State. It is equally obvious that New York is free to allow only a limited number of dealers to engage in the liquor business. It might do this because it wanted to discourage consumption, or to make it easier to police the liquor traffic, or to accomplish some other objective the State thought worthwhile to protect against the evils which can flow from the trafile. In particular New York might want to see that sales are not diverted to Idlewild from other dealers licensed and regulated by the State. Yet today’s interpretation of the Amendment renders New York impotent to prevent such diversions. Justification for this result is sought by saying that the Customs officials must be unhampered in their duties. But giving Customs officials the power to prevent evasion of customs duties does not immunize liquor dealers from state regulation. Nor does state regulation interfere with federal officials’ performance of their duties. Whether Idlewild stays in business is no legitimate concern of the Customs officials; their concern is that, if Idlewild does do a liquor business, tax-free liquor not be diverted within the country and customs duties not thereby be evaded. Nothing in the New York licensing scheme interferes with the' federal officials’ performance of their duty.

The invalidation of New York’s regulation of Idlewild, I think, makes inroads upon the powers given the States by the Twenty-first Amendment. Ironically, it was against just this kind of judicial encroachment that Senators were complaining when they agreed to S. J. Res. 211 and paved the way for the Amendment’s adoption. Senator Borah of Idaho traced the history of state regulation of liquor traffic from Justice Taney’s decision in the License Cases, 5 How. 604 (1847), which upheld state power over liquor, through Bowman v. Chicago & N. R. Co., 125 U. S. 465 (1888), which Senator Borah said “wiped out the Taney decision,” to Leisy v. Hardin, 135 U. S. 100 (1890), which made the States “powerless to protect themselves against the importation of liquor into the States.” 76 Cong. Rec. 4170-4171 (1933). Because of this judicial history, Senator Borah, wanting to guarantee that the States would not be rendered powerless over liquor traffic, expressed his uneasiness at leaving anything less than a Constitutional Amendment “to the protection of the Supreme Court of the United States.” Ibid. Yet, instead of protecting the States’ power to control liquor traffic, today’s- interpretation of the Twenty-first Amendment leaves New York powerless to regulate Idlewild’s business and others like it and puts the power instead in the hands of United States Customs officials. I would not interpret the Amendment that way.

       “The Congress shall have Power ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U. S. Const., Art. I, § 8, cl. 3.

       The opinion of the New York Attorney General was based primarily upon the following provisions of the New York law:
      “ ‘Sale’ means any transfer, exchange or barter in any manner or by any means whatsoever for a consideration, and includes and means all sales made by any person, whether principal, proprietor, agent, servant or employee of any alcoholic beverage and/or a warehouse receipt pertaining thereto. ‘To sell’ includes to solicit or receive an order for, to keep or expose for sale, and to keep with intent to sell and shall include the delivery of any alcoholic beverage in the state.” New York Alcoholic Beverage Control Law, § 3, Subd. 28.
      “No person shall manufacture for sale or sell at wholesale or retail any alcoholic beverage within the state without obtaining the appropriate license therefor required by this chapter.” New York Alcoholic Beverage Control Law, § 100, Subd. 1.
      “No premises shall be licensed to sell liquors and/or wines at retail for off premises consumption, unless said premises shall be located in a store, the entrance to which shall be from the street level and located on a public thoroughfare in premises which may be occupied, operated or conducted for business, trade or industry or on an arcade or sub-surface thoroughfare leading to a railroad terminal.” New York Alcoholic Beverage Control Law, § 105, Subd. 2.

       See 19 U. S. C. § 1311. The complaint also relied on the Export-Import Clause of the Constitution, Art. I, § 10, cl. 2, but such reliance was obviously misplaced, because New York has not sought to “lay any Imposts or Duties” upon the merchandise sold by Idlewild.

       The appellee’s original motion to empanel a three-judge court under 28 U. S. C. §§ 2281 and 2284 was denied by a single district judge, who retained jurisdiction pending resolution of the substantive issues by the state courts. 188 F. Supp. 434. The Court of Appeals for the Second Circuit dismissed on appeal on the ground that it was without jurisdiction, though expressing the view that a three-judge court should have been convened. 289 F. 2d 426. The appellee’s renewed request for a three-judge court was then denied by a district judge on the ground that previous District Court rulings in the litigation had established the “law of this case” and that the Court of Appeals’ statement that a three-judge court should have been convened was “dictum.” 194 F. Supp. 3. After granting certi-orari and a motion for leave to file a petition for a writ of mandamus, 368 U. S. 812, this Court, holding that a three-judge court should have been empaneled, remanded the case to the District Court “for expeditious action” to that end. 370 U. S. 713.

       The court noted, for example: “The definition of sale in Section 3 (28) provides that ‘ “To sell” . . . shall include the delivery of any alcoholic beverage in the state.’ This, of course, is inapplicable to plaintiff’s sales. Whatever may be the purpose of Section 105 (2) in requiring that a retail liquor store have an entrance from the street level and be located dn a public thoroughfare, the requirements, which may be appropriate where liquor purchases are delivered directly to the customer, seem quite irrelevant to a concern which sells liquor exclusively for delivery in a foreign country.” 212 F. Supp., at 379.

       Cf. Government Employees v. Windsor, 353 U. S. 364; American Federation of Labor v. Watson, 327 U. S. 582; Great Lakes Co. v. Huffman, 319 U. S. 293; Burford v. Sun Oil Co., 319 U. S. 315, 323-325; Chicago v. Fieldcrest Dairies, 316 U. S. 168.

       See Louisiana P. & L. Co. v. Thibodaux City, 360 U. S. 25, 29, 31; Allegheny County v. Mashuda Co., 360 U. S. 185, 196-197.

       The appellants have argued that Idlewild’s operations do not in fact conform to the various federal statutory and administrative standards under authority of which the operations are conducted. But there is no indication that the Bureau of Customs has ever questioned the regularity of Idlewild’s operations under the relevant federal law and regulations.

       Likewise, in Mahoney v. Triner Corp., 304 U. S. 401, the Court held that the Equal Protection Clause is not applicable to imported intoxicating liquor. “A classification recognized by the Twenty-first Amendment cannot be deemed forbidden by the Fourteenth.” Id., at 404.

       Quite independently of the Twenty-first Amendment, the Court has sustained a State’s power, within the confines of the Commerce Clause, to regulate and supervise the transportation of intoxicants through its territory. See Duckworth v. Arkansas, 314 U. S. 390; Carter v. Virginia, 321 U. S. 131. In Duckworth, Mr. Justice Jackson relied on the Twenty-first Amendment in concurring in the judgment. 314 U. S., at 397. In Carter, Mr. Justice Black, Mr. Justice Frankfurter, and Mr. Justice Jackson wrote separate concurrences, relying upon the Twenty-first Amendment. 321 U. S., at 138, 139. Cf. Gordon v. Texas, 355 U. S. 369, upholding a similar state statute in a per curiam citing both the Twenty-first Amendment and Carter v. Virginia, supra.

       Prior to the Eighteenth Amendment, Congress passed laws giving the States a large degree of autonomy in regulating the importation and distribution of intoxicants. These laws, the Wilson Act and the Webb-Kenyon Act, are still in force. 27 U. S. C. §§ 121,122. In United States v. Gudger, 249 U. S. 373, the Court held that under the Reed amendment of 1917 — passed by Congress to strengthen these laws, 39 Stat. 1058, 1069 — a prohibition upon transportation “into” a State did not prohibit the “movement through one State as a mere incident of transportation to the [place] into which it is shipped.” Id., at 375.

       See cases cited in note 10, supra.

       Compare Collins v. Yosemite Park & Curry Co., 304 U. S. 518 (1938); Johnson v. Yellow Cab Transit Co., 321 U. S. 383 (1944).

        E. g., 76 Cong. Rec. 4143 (1933) (Senator Blaine); 4144-4148 (Senator Wagner); 4177-4178 (Senator Black).