author: Mr. Justice Blackmun

text:
    PORT OF PORTLAND et al. v. UNITED STATES et al.
    No. 70-31.
    Argued October 20, 1971
    Decided June 29, 1972

      BlackmüN, J., delivered the opinion of the Court, in which all Members joined except Powell and RehNQüist, JJ., who took no part in the consideration or decision of the case.

      Lofton L. Tatum argued the cause for appellants. With him on the briefs were Raymond K. Merrill, Warren H. Ploeger, Oglesby H. Young, W. Harney Wilson, James H. Pipkin, Jr., Lee Johnson, Attorney General of Oregon, Dale T. Crabtree, Assistant Attorney General, Samuel P. Delisi, and Brenda P. Murray. Messrs. Merrill and Ploeger filed a brief for appellant Chicago, Milwaukee, St. Paul & Pacific Railroad Co. Solicitor General Griswold, Acting Assistant Attorney General Comegys, and Howard E. Shapiro filed a brief for the United States in support of appellants.

      Fritz R. Kahn argued the cause for appellee the Interstate Commerce Commission. With him on the brief were Betty Jo Christian and Emmanuel H. Smith. Hugh L. Biggs, Roger J. Crosby, James Warren Cook, Richard Devers, Randall B. Kester, James H. Anderson, and John F. Weisser, Jr., filed a brief for appellees Spokane, Portland & Seattle Railway Co. et al.
   Mr. Justice Blackmun

delivered the opinion of the Court.

This case involves an order of the Interstate Commerce Commission, issued under § 5 (2) of the Interstate Commerce Act, as amended, 54 Stat. 905, 49 U. S. C. § 5 (2), authorizing the joint acquisition of a heretofore independent switching railroad at Portland, Oregon, by two of the four line-haul railroads serving that city. Spokane, P. & S. R. Co. and Union Pacific R. Co., 334 I. C. C. 419 (1969). The switching railroad, Peninsula Terminal Co., is of current interest to the carriers because it provides an entrance route to the Rivergate Industrial District, a modern industrial and port complex being developed by the appellant, Port of Portland.

The two railroads authorized to acquire Peninsula are the Union Pacific Railway Co. (UP) and the Great Northern Pacific & Burlington Lines, Inc. (Burlington Northern), through its subsidiary, the Spokane, Portland & Seattle Railway Co. (SP&S). The two other line-haul carriers now serving Portland — -the Chicago, Milwaukee, St. Paul & Pacific Railroad Co. (Milwaukee) and the Southern Pacific Transportation Co. (SP)— sought to be included as joint purchasers of Peninsula under §§ 5 (2)(b), (c), and (d) of the Act, 49 U. S. C. §§5(2) (b), (c), and (d), and sought trackage rights linking their lines with Peninsula. This appeal arises out of the Commission’s denial — in disagreement with its hearing examiner’s recommendations- — of the petitions of Milwaukee and SP. Together with these two railroads, the Port of Portland and the Public Utility Commissioner of Oregon appeal from the decision of the three-judge District Court affirming, without opinion, the Commission’s order. The United States joins the appellants in urging that the judgment below be reversed, while the Commission joins Burlington Northern and UP in urging affirmance. Probable, jurisdiction was noted. 401 U. S. 906 (1971).

The question whether the Commission applied the correct legal standards is presented against the background of a complex factual situation — though this is not unusual in the case of railway mergers and acquisitions — and we find it necessary to go into detail concerning the facts and the proceedings prior to the submission of the case here.

I

A. The Rivergate Area and Peninsula’s Relation to It

The developing Rivergate Industrial District occupies nearly 3,000 acres at the tip of the peninsula formed by the confluence of the Columbia and Willamette Rivers. ' Rivergate’s six miles of waterfront will provide docksites for direct deepwater access to the Pacific Ocean. The Port of Portland has expended more than five million dollars of public funds for planning, construction, and development, and it is estimated that ultimate pub-lie and private investment in industrial and port facilities at Rivergate will exceed 500 million dollars.

As conceived by its public developers, the Rivergate complex will be served by a domestic transportation network capable of providing efficient and economical service to and from points throughout the Nation. To achieve this goal, the Port’s consultants recommended construction by the Port of an internal rail loop that would connect with existing carriers at the southwestern and eastern corners of Rivergate, thus providing River-gate industries with direct access to all line-haul carriers serving Portland. At full development — estimated to be 15 years in the future — rail traffic generated by these industries is expected to reach between 500 and 600 cars per day, with a projected annual volume of five million tons of freight.

At present, eight industries occupy about one-tenth of the Rivergate area. Seven of these are located on the west, or Willamette River, side of Rivergate, and are served by tracks owned by the Port of Portland. Outside rail access to this part of Rivergate is provided by tracks extending from UP’s Barnes Yard (point 9 on the schematic map appended to this opinion) and connecting with the Port of Portland tracks. Over these éxternal tracks, jointly owned by UP and Burlington Northern, UP provides switching service to the line-haul carriers serving Portland. It is expected that this Barnes Yard route will remain the southwest entrance to Rivergate.

The one other Rivergate industry — the poleyard of the Crown Zellerbach Corporation (Point E on the map) — is located at the easternmost edge of Rivergate, on the Columbia River. Outside rail access is presently provided by Peninsula, which serves, in addition, 13 industries located just southeast of the Rivergate boundary. Peninsula, organized in 1918 to serve a packinghouse facility long since closed, has a main track extending for only 8,000 feet along the Columbia River. At its easternmost end is the North Portland interchange (point 7 on the map), where Peninsula connects with lines owned by Burlington Northern and UP. Since the lines of these two line-haul carriers do not connect directly with Rivergate in this area, access to the eastern end of the Rivergate District is, at present, solely over Peninsula tracks.

Whether Peninsula tracks will remain the sole access to the eastern end of Rivergate is by no means certain. Peninsula suffers from certain physical limitations — its tracks are laid upon sand, its clearances are- limited, and the main line is impeded by heavy curvature. Furthermore, the North Portland interchange tracks may have insufficient capacity for the expected Rivergate traffic. Accordingly, an alternate access route to the eastern end of Rivergate is under consideration, that is, a new spur leading directly to Rivergate from the Burlington Northern main north-south tracks.

B. The Proposed Purchase of Peninsula

All outstanding capital stock of Peninsula is owned by the United Stockyards Corporation. Stockyards R. Co. Control, 254 I. C. C. 207 (1943). United is not itself a carrier and has no interest in continuing to operate a railroad independent of its stockyard operation. It has been willing to sell Peninsula at the appraised value of its capital stock, and it has no preference as to the purchaser. On February 28, 1967, United entered into an agreement to sell Peninsula to SP&S and UP.

By joint application filed with the Interstate Commerce Commission on July 25, 1967, SP&S and UP sought approval, under § 5 (2) of the Interstate Commerce Act, of their contracted purchase of Peninsula from United Stockyards. The application pointed out that the acquisition would enable the applicants to provide rail service to the adjacent Rivergate area over the Peninsula tracks. Peninsula, however, would continue to operate as a separate carrier. No major changes in traffic or revenues were anticipated in the immediate future, though it was anticipated that “within the foreseeable future substantial new traffic and revenues” would be derived from the developing Rivergate area.

In response to the above application, Milwaukee and SP filed petitions seeking inclusion in the acquisition of Peninsula as joint and equal owners, pursuant to §§ 5 (2)(b), (c), and (d) of the Act; in addition, they sought the right to use tracks necessary to connect their own lines with Peninsula. The Commission’s action on these petitions is the subject of the present appeal. The competing contentions are closely related to the facts of the interconnections between the four line-haul carriers near Rivergate, and to these we now turn.

C. Carrier Interconnections and Switching Arrangements

(1) The North Portland Interchange

At the North Portland interchange (point 7 on the map), where Peninsula connects with Burlington Northern and UP, are four interchange tracks. Two of these are jointly owned by Burlington Northern and UP; the remaining two are owned half by Peninsula, and the other half jointly by Burlington Northern and UP. Only one of these four tracks — one of the two jointly owned by Burlington Northern and UP — connects directly to the Burlington Northern double main-line tracks, running to the north across the Columbia River. In addition, the interchange tracks connect to a single UP track, which extends south through a mile-long tunnel to the UP’s Albina Yard (point 6 on the map), a distance of 5.2 miles.

At the time of the hearing in this case, about 30 cars were handled daily at the North Portland interchange. About 61% of this traffic involved switching between the predecessors of Burlington Northern on the one hand and UP and its subsidiaries on the other. Only the remaining 39% involved switching cars designated to or from industries served by Peninsula. As the only two line-haul carriers connecting directly with Peninsula at North Portland, Burlington Northern and UP provide reciprocal switching to any other line-haul carrier whose cars are designated to or from industries served by Peninsula.

(2) The Southern Pacific Connection

Although SP is a line-haul carrier serving Portland, its tracks terminate in East Portland (point 5) and at the Hoyt Street Yard on the other side of the Willamette River (point 3). SP cars designated for industries served by Peninsula are generally switched to UP trains at the latter’s Albina Yard (point 6) and moved thence to the North Portland interchange, where they are switched by Peninsula itself to their ultimate destination. Alternatively, the cars may be switched to SP&S trains at the Hoyt Street Yard and moved to North Portland over the SP&S mainline. In either case, SP must pay a switching charge to Burlington Northern or to UP (whichever is the switching carrier), and then pay a “rate division” to Peninsula for its switching service. The Peninsula rate division is absorbed by any line-haul carrier subject to it and is thus not passed on to the shipper. The SP&S and UP switching charges may be absorbed by a line-haul carrier if a minimum line-haul revenue per car is exceeded, and SP has done so, except on certain low-rated noncompetitive traffic. SP shared in about 20% of Peninsula’s traffic in 1966, and in about 17% in 1967.

(3) Milwaukee’s Presence in Portland

Throughout the proceedings below, Milwaukee was not a line-haul carrier serving Portland. Its own tracks terminate at Longview, Washington, 46 miles north of Portland, and through arrangements with SP&S it shared in only one percent of Peninsula’s traffic in 1966 and 1967. However, a basic condition of the Commission’s approval of the merger of the Great Northern Railway Co., the Northern Pacific Railway Company, and their affiliates, including SP&S, was that Milwaukee be made an effectively competitive transcontinental carrier by being permitted to enter Portland over the lines of the new company, Burlington Northern. Condition 24(a) of the merger required that Burlington Northern

“shall grant to the Milwaukee, upon such fair and reasonable terms as the parties may agree or as determined by this Commission in the event of their inability to agree, trackage rights to operate freight trains over [Burlington Northern] lines between Longview Junction and Portland, including the right to serve on an equal basis all present and future industries at Portland and intermediate points and the use of [Burlington Northern] facilities at Portland necessary for the switching of traffic to other railroads and industries. [Burlington Northern] shall maintain Portland as an open gateway on a reciprocal basis with the Milwaukee to the same extent as with other connecting carriers . . . 331 I. C. C. 228, 357.

Pursuant to Condition 24(a), Milwaukee commenced service to Portland on March 22, 1971. Since that date, it has published rates reflecting single-line service to Portland industries, including those served by Peninsula, by absorbing the relevant switching charges. It has operated its own locomotives over Burlington Northern lines as far south as the Hoyt Street Yard on the western side of the Willamette River (point 3). If Milwaukee is not allowed to switch cars directly to Peninsula at the North Portland interchange, Milwaukee cars designated for industries on Peninsula will be switched to Burlington Northern trains at Vancouver, on the north side of the Columbia (point 8), at the Hoyt Street Yard (point 3), or at the Guild’s Lake Yard (point 2), and moved thence to Peninsula.

D. Milwaukee and Southern Pacific Pleadings Before the Commission

By petition filed August 23, 1967, Milwaukee sought inclusion in the proposed purchase of Peninsula by Burlington Northern (then SP&S) and UP. Section 5 (2) (d) of the Interstate Commerce Act authorizes the Commission to require such inclusion as a prerequisite to its approval of the purchase “upon a finding that such inclusion is consistent with the public interest.” After first setting out its impending access to Portland over SP&S lines because of the Northern Lines merger, Milwaukee alleged:

“The instant transaction, if approved by the Commission without inclusion of Milwaukee upon the terms stated below, would have the effect of foreclosing Milwaukee direct service to all the industries now or in the future to be located on the lines of Peninsula Terminal Company. With fifty per cent of Peninsula Terminal Company stock in the hands of Union Pacific Railroad Company, not a party to the contract referred to above, Milwaukee will not have any right similar to that sought by applicants herein ... to operate over or obtain trackage rights in the lines of Peninsula Terminal Company. Industries on the lines of Peninsula Terminal Company will thus be denied the single-line service of Milwaukee to such points as [various western and midwestern rail centers served by Milwaukee], contrary to the public interest.” App. 165.

Accordingly, the Milwaukee sought equal inclusion with SP&S and UP in the purchase of Peninsula and, in addition, asked

“[t]hat Milwaukee be granted the right to acquire trackage rights over intervening connecting track-age jointly owned by applicants, from SP&S main line to Peninsula Terminal Company’s lines upon such reasonable terms and conditions, and for such considerations, as Milwaukee and applicants may negotiate, or, failing such negotiations, upon such terms and conditions and for such consideration as the Commission may find just and reasonable.” App. 166.

On December 29, 1967, SP&S and the UP filed replies, arguing, inter alia: (1) that even if Condition 24 (a) were implemented, Milwaukee would still not connect with Peninsula because of the intervening North Portland interchange tracks, jointly owned by SP&S, UP, and Peninsula, and trackage rights over these tracks could not be granted to the Milwaukee in this proceeding; and (2) that joint ownership of Peninsula with the Milwaukee could “lead to a cumbersome, confused and divided management with resulting policy stalemates and serious deterioration of service.”

Milwaukee thereupon filed a supplement to its petition for inclusion, stating that

“in light of the replies of applicants herein to the Milwaukee’s petition for inclusion, the Milwaukee alleges that the joint application herein is for the purpose of bottling up the Milwaukee at Portland and impair [sic] its ability to provide a competitive service to industries served or to be served by Peninsula Terminal Company contrary to the public interest and the plain intent of the Commission’s [report and order in the Northern Lines Merger Case].” App. 182.

Accordingly, the Milwaukee added to its earlier petition by requesting:

“That applicants be required to grant Milwaukee trackage rights over intervening trackage at North Portland connecting with the yards of Peninsula Terminal Company, both as a condition to participation in ownership of Peninsula Terminal Company and also under Section 3 (5) of the Interstate Commerce Act” App. 183. (Emphasis added.)

Whether intentionally or not, by requesting trackage rights under § 3 (5), the text of which appears in the margin, Milwaukee divorced the question of access to Peninsula from the question of inclusion in the ownership of Peninsula. Any trackage rights granted in connection with the petition for inclusion under § 5 (2) would be contingent upon SP&S’ and UP’s deciding to consummate the purchase; trackage rights granted under § 3 (5), however, would be independent of the purchase.

In the meantime, by an amended petition filed November 29, 1967, SP joined with the Milwaukee in seeking inclusion under § 5 (2) (d) as an equal owner of Peninsula. It further requested that UP

“be required to grant petitioner bridge trackage rights over [the Union Pacific] main line and terminal trackage between Peninsula Terminal Company and the Southern Pacific-Union Pacific track connection at East Portland, Ore.” App. 168.

In response to replies that trackage rights to East Portland could not be granted in a § 5 (2) proceeding, SP, unlike Milwaukee, initiated separate proceedings under §3(5) (Dec. 19, 1967). It sought orders requiring SP&S and UP to allow the “common use of Peninsula Terminal Company,” together with bridge trackage rights over UP lines to East Portland; additionally (or, presumably, alternatively), it sought the “common use of the terminal facilities of Union Pacific between Peninsula Terminal Company and . . . East Portland, Oregon.”

E. Proceedings Before the Hearing Examiner

The applications, petitions, and replies of the four line-haul carriers were referred to an examiner for hearing upon a consolidated record. The Port of Portland, the Portland Commission of Public Docks, the Public Utility Commissioner of Oregon, and Crown Zellerbach Corporation intervened in favor of Milwaukee and the SP. At the hearings in February and March of 1968, evidence was taken from five shippers in addition to Crown Zellerbach, as well as officers and consultants of the parties and intervenors.

On September 9, 1968, nearly a year after the Commission had approved the Northern Lines merger, the hearing examiner issued his report. In the § 5 (2) proceeding, he recommended approval of the purchase of Peninsula by Burlington Northern and UP, on condition (1) that SP be included as an equal owner and (2) that Milwaukee be included as an equal owner upon consummation of the Northern Lines merger and upon Milwaukee’s commencing operations into Portland. The examiner further recommended that if the purchase were consummated on the above conditions, SP and Milwaukee be granted

“the right of access ... to Peninsula Terminal Company trackage over intervening North Portland interchange tracks, at North Portland, Oreg., presently owned individually or jointly by [Peninsula, SP&S and Northern Pacific, and UP], upon such terms and compensation for use of such intervening trackage mutually agreeable to the interested carriers, or in the event of failure to agree, as the Commission may fix as just and reasonable, to be ascertained in accordance with the provisions of section 3 (5) . . . App. 128-129.

The examiner found that this right of access “is practicable and would not substantially impair the ability of the owning carriers to handle their business.” App. 129.

In the separate § 3 (5) proceedings initiated by SP, the examiner ordered common use by SP of the tracks and facilities of UP for operation between the connection at East Portland and the tracks of Peninsula at North Portland, conditioned, again, upon compensation to be agreed upon by the parties or “just and reasonable” as fixed by the Commission.

In his discussion of the issues, the hearing examiner first announced that he would treat the entire area involved as “one transportation terminal entity.” On the subject of inclusion in the purchase of Peninsula, he announced:

“Existing disparity in charges and treatment of traffic within the Portland switching area is convincing evidence that the greatest economic advantage for equality of shippers and carriers can be accomplished best by equal access and ownership. The most economical and functionally modern transportation facilities are essential to development of Rivergate and the Port of Portland. Limitation of direct access there to two railroads barring on-line solicitation and the direct development interests of the other railroads serving the Portland area is contrary to an environment of unencumbered development and the establishment of a sound transportation system. . . . [D]irect access to all the carriers will enable shippers to deal directly with originating carriers providing on-line service to many points in areas not served by the two initial applicants. Shippers would benefit from elimination of switching charges assessed on non-competitive traffic where one of the applicants now acts as a switching carrier.” App. 120-121.

On the subject of the SP’s § 3 (5) applications, the examiner found that the evidence warranted a conclusion that common use by SP of UP trackage between the North Portland interchange and East Portland was “in the public interest, practicable, and would not substantially impair UP’s ability to handle its own business.” He noted the “almost incredible 30-hour average transit time required for car movements between Albina Yard and Peninsula, a round-trip distance of about 10.4 miles, including engine changes, car inspection, and car classification at Albina Yard.” With respect to the developing Rivergate complex, the examiner was convinced

“that access thereto by other line-haul carriers will create greater incentive for improvement of railroad facilities and for elimination of present unsatisfactory conditions in the involved area.” App. 124.

Nor did the examiner think that joint ownership and access by the four line-haul railroads in Peninsula and the proposed trackage rights to SP would curtail competition.

“To the contrary, shippers in the involved area would be afforded free direct access to all the line-haul carriers’ services. Among other things, it would place traffic movements between the Portland area, on the one hand, and, on the other, on-line points of carriers in California and States east thereof, on a more competitive basis with movements between those points over the lines of UP and [Burlington Northern] .... Also, Milwaukee would become more competitive with UP and [Burlington Northern] and their connections in providing service to the north and east of Portland. The authorizations, generally, would result in improved competitive service and the fostering of sound transportation in the involved area.” App. 125.

Finally, the examiner did not grant SP’s apparent application, pursuant to § 3 (5), for trackage rights over Peninsula itself. He concluded his discussion with the words:

“In event the parties elect not to consummate the purchase [of Peninsula] recommended herein further petitions by these carriers requesting access to and operation over trackage of Peninsula pursuant to section 3 (5) of the Act may be filed. Jurisdiction will be retained for that purpose.” App. 127.

F. The Decision of the Interstate Commerce Commission

Burlington Northern and UP filed exceptions to the hearing examiner’s recommendations. They contended, inter alia, (1) that undue emphasis was placed on the future development of Rivergate, (2) that the hearing examiner erroneously held the Portland terminal area to constitute one terminal entity, (3) that the evidence does not support a four-way ownership of Peninsula, either from a general public or a shipper standpoint, (4) that Condition 24 (a) did not grant Milwaukee access to Peninsula, and (5) that neither use of the North Portland interchange tracks by Milwaukee and SP, nor common use by the SP of UP trackage between North Portland and East Portland, was in the public interest.

On June 6, 1969, Division 3 of the Interstate Commerce Commission issued its opinion. 334 I. C. C. 419. Though it approved the acquisition of Peninsula by SP&S and UP, it otherwise rejected the hearing examiner’s recommendations and. denied the petitions and applications filed by Milwaukee and SP. The following conditions were imposed upon the acquisition, “to protect the present routings and interchanges” of Peninsula:

“1. Under the control of SP&S and UP, Peninsula shall maintain and keep open all routes and channels of trade via existing junctions and gateways, unless and until otherwise authorized by the Commission;
“2. The present neutrality of handling inbound and outbound traffic to and from Peninsula by SP&S and UP shall be continued so as to permit equal opportunity for service to and from all lines reaching Peninsula through SP&S and UP without discrimination as to routing or movement of traffic, and without discrimination in the arrangements of schedules or otherwise;
“3. The present traffic and operating relationships existing between Peninsula, on the one hand, and, all lines reaching Peninsula through the lines of SP&S and UP, on the other, shall be continued insofar as such matters are within the control of SP&S and UP;
“4. Peninsula, SP&S and/or UP shall accept, handle, and deliver all cars inbound, loaded and empty, without discrimination in promptness or frequency of service irrespective of destination or route of movement;
“5. Peninsula, SP&S and/or UP shall not do anything to restrain or curtail the right of industries, now located on Peninsula, to route traffic over any and all existing routes and gateways;
“6. Peninsula, SP&S and/or UP shall refrain from closing any existing route or channel of trade with SP or Milwaukee on account of the [authorized purchase of Peninsula], unless and until authorized by this Commission;
“7. Consummation of [the authorized purchase of Peninsula] shall constitute assent by the corporate parents of SP&S, the members of their respective systems, and any carrier resulting from consummation of the Northern Lines case, to be bound by these conditions to the same extent that SP&S is bound by these conditions; and
“8. Any party or person having an interest in the subject matter may at any future time make application for such modification of the above-stated conditions, or any of them, as may be required in the public interest, and jurisdiction will be retained to reopen the proceeding on our own motion for the same purpose.” 334 I. C. C., at 436-437.

II

A. “Direct Access”

As a reading of Part I reveals, there seems to have been a certain amount of confusion below as to whether or not actual operation over the main tracks of Peninsula by any of the four line-haul carriers was at issue in this case. Early in the Commission’s discussion of the merits, for example, it said:

“[W]e find that since neither SP nor Milwaukee now connect with Peninsula, and have never connected with it in the past, their direct service to Peninsula’s industries over the objections of SP&S and UP would constitute a new operation and an invasion of the joint applicant’s territory.” 334 I. C. C., at 433 (emphasis added).

Laying aside the substantive policy involved in this statement, we do not see how the italicized words can refer to anything but physical operation over tracks wholly owned by Peninsula. Yet, as we have already seen supra, at 828-829, and n. 20, and 832 n. 21, the hearing examiner did not recommend the granting of such trackage rights to Milwaukee and SP; and neither of these two railroads filed exceptions to the hearing examiner’s report requesting such rights. As for Burlington Northern and UP, the third condition which the Commission imposed on their purchase of Peninsula (quoted supra, at 833) seems to acknowledge that Peninsula will continue to operate as a separate railroad, handling all the switching from industries located upon its lines to the North Portland interchange tracks.

This matter was not resolved before this Court. The briefs filed by the appellants and by the United States contain many references to “direct access” by the line-haul carriers to Peninsula and Rivergate, again strongly suggesting physical operation over Peninsula tracks. The Commission argues that physical operation on the part of Burlington Northern and UP is not at issue, because ownership alone — all that these two railroads seek — gives no right to operate over the tracks of the purchased railroad. Brief for Interstate Commerce Commission 23 n. 15; Tr. of Oral Arg. 30. Milwaukee denies that it ever sought “to switch cars to Peninsula industries with its own engines and crews,” Supplemental Brief for Appellant Milwaukee 34, but no similarly direct statement has been forthcoming from SP.

We have set forth but one of the confusions — factual and procedural — that plague this case. Such confusions might have been resolved before the case reached us had the three-judge court that initially reviewed these orders written an opinion.

B. The Petitions for Inclusion

(1) Condition 24 (a)

Milwaukee and the United States argued at length before this Court that Condition 24 (a) of the Northern Lines merger by itself requires that Milwaukee be included in the purchase of Peninsula. The Commission considered this point at the very start of its discussion of the merits and stated that Milwaukee’s petition for inclusion could not be viewed

“as part of the general realignment of western railroad competition resulting from the Commission’s approval of the Northern Lines merger. Condition No. 24 ... is applicable only to Northern Lines trackage and territory. The condition is silent with respect to trackage and territory in which other carriers, such as UP, have a joint interest and the effect of the condition upon such joint trackage and territory was not presented to, nor considered by, the Commission. Furthermore, . . . the purchase of Peninsula by the joint applicants was not within the contemplation of the Commission at the time condition No. 24 was imposed. . . . Accordingly, we consider the petition of Milwaukee under the same public interest criteria as the petition and applications of SP, rather than as a petition to carry out the provisions of condition No. 24.10” 334 I. C. C., at 432.

In its footnote 10, however, the Commission said:

“Upon completion of litigation in the Northern Lines case and consummation of that merger, Milwaukee may wish to seek relief from the Commission in that proceeding to determine the relationship of condition No. 24, if any, to Peninsula’s tracks which would at that time be partially owned by the Northern Lines.” Ibid.

This suggestion that the Commission might consider anew the effect of Condition 24 (a) upon jointly owned tracks leaves us in doubt whether at this point it has made a final determination on the applicability of the condition, or simply a determination that the question should be raised in a different proceeding. We do not find it necessary, however, to resolve this doubt and to rule upon the narrow question whether Condition 24 (a) alone requires that Milwaukee be included in the purchase of Peninsula. No one disputes that the condition had one clear meaning — that Milwaukee would be permitted to run its trains into Portland over Burlington Northern-SP&S tracks. The Commission took this as its starting point and went on to discuss the merits of both Milwaukee’s and SP’s petitions for inclusion. We find, for the reasons that will appear below, that the Commission took too narrow a view of the “public interest” and we are in disagreement with its § 5 (2) order.

(2) Evaluating the Public Interest

As an initial matter, the Commission limited its attention to Peninsula alone, rather than considering the “entire Portland area” as “one transportation terminal entity,” as the hearing examiner had. Appellants contend that this very first step was error, but we think it wiser to evaluate the Commission’s approach as a whole.

A fair summary of the Commission’s analysis appears in the last paragraph of its discussion of the petitions for inclusion. There it concludes:

“The adverse effect on SP&S and UP, and the shippers dependent upon them for service, of admitting SP and Milwaukee into ownership and control of Peninsula, would outweigh any advantage accruing to SP, Milwaukee, and the Rivergate industries of four-railroad ownership. We cannot find, therefore, that inclusion of SP and Milwaukee in the title proceeding would constitute a just and reasonable term, condition, or modification of the authority requested by the joint applicants.” 334 I. C. C., at 435.

In the preceding paragraphs, the Commission had summarized the evidence presented by the three shippers located in Rivergate that had supported SP’s petition and application; it concluded that this evidence failed to establish that benefits would accrue from four-railroad ownership of Peninsula. No mention was made of evidence that tended to establish that “shippers dependent upon” SP&S and UP would suffer from such ownership. It is apparent, therefore, that the dominant factor in the Commission’s analysis, outweighing any advantage accruing to SP and Milwaukee from four-railroad ownership, was the “adverse effect on SP&S and UP”; we must examine now the manner in which the Commission characterized this “adverse effect.”

First, the Commission said:

“[W]e find that since neither SP nor Milwaukee now connect with Peninsula, and have never connected with it in the past, their direct service to Peninsula’s industries over the objections of SP&S and UP would constitute a new operation and an invasion of the joint applicant^’] territory.” Id., at 433.

We have already observed that this passage suggests direct physical operation over the main track of Peninsula, a matter that appears not to be directly at issue in this case. But it may also refer to the trackage rights sought by Milwaukee and SP, as a condition to the purchase, which would permit them to connect directly with Peninsula, so the Commission’s further treatment of this point is relevant:

“In the past, the Commission has usually held that sound economic conditions in the transportation industry require that a railroad now serving a particular territory should normally be accorded the right to transport all traffic therein which it can handle adequately, efficiently, and economically, before a new operation should be authorized. This conclusion is applicable not only with respect to existing traffic but also with respect to potential traffic .... See Minneapolis, St. P. & S. S. M. R. Co. Acquisition, 295 I. C. C. 787, 802 [1958], and cases cited therein.” Ibid.

This passage appears to announce the principle that in considering petitions for inclusion in proposed purchases or mergers under § 5 (2), with accompanying trackage rights, the dominant policy is preservation of the market shares of the railroads already serving the location in question, so long as those railroads provide reasonably adequate switching service to other carriers in the area. Whatever doubts we might have, either as to the principle itself or its application to this case, are removed by the critical paragraph that immediately follows the sentences just quoted:

“As shown in the appendix, SP shared, through connections and use of joint rates and routes, in only about 20 percent of Peninsula’s traffic during 1966, and only about 17 percent during 1967. Milwaukee’s share, also via connections and joint rates and routes, amounted to only 1 percent during those years. Permitting SP and Milwaukee to acquire access to, and equal ownership of, Peninsula and therefore participate in its existing traffic on a direct haul basis will, of course, allow those two railroads to increase their share of Peninsula’s declining traffic (3,640 loaded cars handled in 1966 and 2,748 handled in 1967). These increased shares of SP and Milwaukee could only be at the expense of the joint applicants and the railway employees whose jobs would be eliminated by the direct service planned by SP and Milwaukee.” Ibid,

This discussion strikes us as initially misdirected because it ignores the prospective presence of Milwaukee in this area. In 1966 and 1967, Milwaukee trains were still running no closer to Portland than Longview, Washington, 46 miles away. All through the Commission proceedings, however, it was assumed by all concerned that pursuant to Condition 24 (a) of the Northern Lines merger, Milwaukee would soon be operating directly into Portland over Burlington Northern tracks, as it is today. Granted that Milwaukee had only 1 % of Peninsula’s traffic in 1966 and 1967, the Commission pointed to no evidence that the Milwaukee share would continue to be this small after affirmance of the Northern Lines merger.

The next difficulty with the Commission’s approach relates to the potential growth of Peninsula traffic. The raison d’etre of this litigation has been the possibility that Peninsula would become the northern access to River-gate. As we have already noted, this possibility may be remote, given the physical limitations of Peninsula’s present facilities. But the Commission nowhere states that the possibility is too speculative to be considered in this litigation. The paragraph we have just quoted, then, reads strangely indeed; for if Peninsula becomes the northern route into Rivergate, the estimates we have been given indicate that daily traffic over its line would increase from the 1967 rate of 30 cars per day to over 300 cars per day, assuming that a roughly equal number of cars go out over each of the northern and southern routes from Rivergate. Yet according to the principle announced by the Commission, the public interest requires that Burlington Northern’s and UP’s 80% share of this potentially enormous traffic be protected.

Such an approach seems to us to fly in the face of the well-settled principle that the Commission is obligated to consider the anticompetitive effects of any § 5 (2) transaction. McLean Trucking Co. v. United States, 321 U. S. 67, 83-87 (1944); Northern Lines Merger Cases, 396 U. S. 491, 511-516 (1970). It is not necessary to invoke the precise terms of Condition 24 (a) and decide their applicability to this case, to take cognizance of the fact that prior to the Northern Lines merger, Milwaukee was a weak carrier in the Northern Tier of States. Northern Lines Merger Cases, 396 U. S., at 504, 514-516. Condition 24 (a) was not intended to foreclose consideration of Milwaukee’s competitive position vis-a-vis. Burlington Northern in any other proceeding. Both Milwaukee and SP were entitled to explicit consideration of their economic positions as compared with that of Burlington Northern and UP or, at least, a clear statement why such an inquiry was not appropriate.

Even the one case cited by the Commission in support of its general principle, Minneapolis, St. P. & S. S. M. R. Co. Acquisition, 295 I. C. C. 787, 802 (1958), undercuts the Commission’s reasoning. There, the Commission denied applications of other lines for permission to acquire tracks and to undertake new construction in territory traditionally served by the Chicago & North Western Railway Co.; the latter’s economic vulnerability made preservation of its exclusive territory important to the public interest.

There is no indication in the present case that Burlington Northern and UP are economically vulnerable, or that they in any way need their present share of Peninsula traffic to serve the public interest. We are confronted with two railroads that already control one actual route into Rivergate (via Barnes Yard) and one potential route (any spur leading off the Burlington North ern-SP&S main-line tracks), and that now seek to acquire, for themselves alone, the one remaining route. The Commission’s entire discussion of the anticompetitive aspects of this acquisition can be summed up as follows: to the extent that SP and Milwaukee may gain by four-railroad ownership of Peninsula, Burlington Northern and UP will lose; therefore the petitions for inclusion are denied. We do not approve this approach to the case.

Despite what we have said about the Commission’s apparent reasoning, it does not necessarily follow that the result it reached was incorrect. Given the uncertainty about the northern access to Rivergate, and given the apparent fact that physical operation over Peninsula and into Rivergate was not at issue, approval of the purchase by Burlington Northern and UP alone, with the eight attached conditions, may be the result most in the public interest at the present time. We note that the Commission retained jurisdiction over the proceedings.

But it is not the role of this Court to arrive at its own determination of the public interest on the facts of this case. Our appellate function in administrative cases is limited to considering whether the announced grounds for the agency decision comport with the applicable legal principles. SEC v. Chenery Corp., 318 U. S. 80, 87-88 (1943). In this proceeding — where the record is already confused by ambiguities over what was thought to be at issue — we cannot say that the grounds for the agency decision are consistent with the “public interest” standard found in the Interstate Commerce Act. We must reverse and remand for further proceedings.

C. Southern Pacific’s § S (5) Applications

We turn to SP’s applications for trackage rights which would permit it to run trains directly to Peninsula from East Portland. According to the Commission:

“The intent of Congress in enacting section 3 (5) was to provide a method of avoiding the necessity for incurring unnecessary expense in duplicating existing terminal facilities by a railroad entitled to serve a particular territory.” 334 I. C. C., at 435.

Since SP was “not entitled to serve Peninsula or River-gate,” it went on,

“we need not reach the questions of whether common use of the facilities involved would be practicable or would substantially impair the ability of Peninsula and UP to handle their own business.” Id., at 436.

According to the rule applied here, if a railroad is not “entitled to serve” a particular territory, the Commission conclusively presumes that granting § 3 (5) rights would not be in the “public interest.” Whether or not such a per se rule is permissible under § 3 (5) strikes us as a substantial question of statutory construction. For the following reasons, however, we decline to decide this question in the instant case and include these § 3 (5) proceedings in our remand to the Commission.

Pirst, we note that the two cases cited by the Commission in support of its announced rule, Use of Northern Pacific Tracks at Seattle by Great Northern, 161 I. C. C. 699 (1930), and Seaboard Air Line R. Co. — Use of Terminal Facilities of Florida East Coast R. Co., 327 I. C. C. 1 (1965), do not directly present the question at issue, since in each case the Commission decided that the applying railroad was entitled to serve the area and went on to grant the requested trackage rights.

Second, we note that the Commission’s brief now defends the ruling below on broader grounds than those that were announced. This leads us to doubt the extent to which the Commission’s announced rule is settled ICC law.

Third, the question of § 3 (5) relief may become moot if the Commission, on remand of the § 5 (2) petitions for inclusion, reverses itself and requires trackage rights for SP as a condition for approval of the purchase of Peninsula, and if the purchase is then consummated.

Fourth, the § 3 (5) applications were considered in close connection with the § 5 (2) petitions for inclusion by both the Commission and the hearing examiner. We cannot say with assurance that the Commission would approach the § 3 (5) applications in the same way after reconsidering the petitions for inclusion in light of Parts II (A) and (B) of this opinion.

The judgment of the District Court is reversed. The case is remanded to the District Court with instructions that it remand to the Interstate Commerce Commission for further proceedings consistent with this opinion.

Mr. Justice Powell and Mr. Justice Rehnquist took no part in the consideration or decision of this case.

[Schematic map follows this page.]

       SP&S was formerly owned by the Great Northern Railway Co. and the Northern Pacific Railway Co. These two roads merged to become Burlington Northern. See Northern Lines Merger Cases, 396 U. S. 491 (1970). SP&S now operates as an integral part of that railroad. Reference to Burlington Northern in this opinion will include its SP&S operation, but SP&S often will be referred to in connection with the proceedings below, where it was the named party.

       When the record closed below, the number of industries in River-gate was five, four of which were located on the Willamette River side of Rivergate. App. 81. By the time the ease had reached the Commission, another industry had located on the Willamette River side. According to the Brief for the Interstate Commerce Commission, p. 38, which no one has contradicted, two additional industries have now located on the Willamette River side.

       SP&S and UP had already provided for joint ownership of such a spur in their May 26, 1967, contract for the joint ownership of the line between Barnes Yard and the southwestern part of Rivergate. See Art. XI of this agreement, App. 313.

       The agreed purchase price is $299,405 for all outstanding shares of common stock of Peninsula plus the sum of $70,000 to reimburse United for two switch engines sold by United to Peninsula, and representing an unsecured account payable to United. Peninsula’s properties consist of 13.17 acres of land, none suitable for industrial development, and a total of 3.79 miles of main line and secondary and spur track laid on treated ties in sand with no rock ballast. Besides the two above-noted locomotives, including tools and parts for their operation and maintenance, Peninsula owns tools for track maintenance, a conveyance for workmen, a heated engine house for both locomotives, a yard office, and a sand house.

       Section 5 (2) of the Act, 49 U. S. C. § 5 (2), provides in pertinent part:
      “(a) It shall be lawful, with the approval and authorization of the Commission, as provided in subdivision (b) of this paragraph—
      “(i) for . . . two or more carriers jointly, to acquire control of another through ownership of its stock or otherwise ....
      “(b) Whenever a transaction is proposed under subdivision (a) of this paragraph, the carrier or carriers or person seeking authority therefor shall present an application to the Commission, and thereupon the Commission . . . shall afford reasonable opportunity for interested parties to be heard. . . . [A] public hearing shall be held in all cases where carriers by railroad are involved unless the Commission determines that a public hearing is not necessary in the public interest. If the Commission finds that, subject to such terms and conditions and such modifications as it shall find to be just and reasonable, the proposed transaction is within the scope of subdivision (a) of this paragraph and will be consistent with the public interest, it shall enter an order approving and authorizing such transaction, upon the terms and conditions, and with the modifications, so found to be just and reasonable ....
      “(c) In passing upon any proposed transaction under the provisions of this paragraph, the Commission shall give weight to the following considerations, among others: (1) The effect of the proposed transaction upon adequate transportation service to the public; (2) the effect upon the public interest of the inclusion, or failure to include, other railroads in the territory involved in the proposed transaction; (3) the total fixed charges resulting from the proposed transaction; and (4) the interest of the carrier employees affected.
      “(d) The Commission shall have authority in the case of a proposed transaction under this paragraph involving a railroad or railroads, as a prerequisite to its approval of the proposed transaction, to require, upon equitable terms, the inclusion of another railroad or other railroads in the territory involved, upon petition by such railroad or railroads requesting such inclusion, and upon a finding that such inclusion is consistent with the public interest.”

       Although the map reproduced in the Appendix does not make this clear, trains coming north on the UP track from Albina Yard may enter directly upon the Burlington Northern double main-line tracks just south of North Portland, without passing through the North Portland interchange.

       These percentages are based on the figures for loaded or partly loaded cars interchanged at Peninsula during 1967: 2,748 cars designated to or from Peninsula industries; 4,300 interchanged between UP and the predecessors of Burlington Northern. It is not clear from the record how the total figure of 7,048 cars is translated into 30 cars per day — perhaps empty cars are included — but none of the parties disputed the daily or annual figures.

       In Switching Charges and Absorption Thereof at Shreveport, La., 339 I. C. C. 65, 70 (1971), the Commission has explained “reciprocal switching” as follows:
      “It has long been a common practice among the railroads to participate at commonly served terminal areas in what is called reciprocal switching. In practice this means that one line-haul carrier operating within the terminal area will act only as a switching carrier in placing cars at industries on its own trackage for loading or unloading, as an incident of the line-haul movement of those cars over another carrier whose trackage in that terminal area does not extend to the serviced industry. The carriers reciprocate in their roles as switching and line-haul carriers at this terminal in accordance with the flow of traific to and from industries on their respective trackage. In theory the carriers mutually exchange their switching services in these terminal areas, with the effect of extending the lines of each carrier to the other’s industries — even on traffic for which they may be directly competitive as line-haul carriers. The scope of these reciprocal switching services is, of course, defined in the carriers’ respective tariffs, either by definition of a specific area of trackage, or by identification of the particular industries for which reciprocal switching is held out. Frequently, the switching charges made applicable by each carrier for reciprocal switching are constructed without regard to the actual cost of the service, on the theory that these mutually incurred costs balance out each other. In many instances the line-haul carrier absorbs the reciprocal switching charge, thus placing the off-line industries within a given terminal area on an identical rate basis with its own on-line industries in that terminal area.”

       In other words, Peninsula is compensated for its switching service in these cases by a flat division of the line-haul rates. At the time of hearing below, the charge generally amounted to $29.25 per car when the ear revenue exceeded $60. App. 79.

       The Commission approved the merger on November 30, 1967. Great Northern Pacific & Burlington Line, Inc. — Merger, etc. — Great Northern R. Co. et al., 331 I. C. C. 228, modified Apr. 11, 1968, 331 I. C. C. 869. This Court ultimately affirmed. Northern Lines Merger Cases, 396 U. S. 491 (1970).
      Why direct access to Portland was critical to the Milwaukee is made clear by the following quotation from the three-judge District Court opinion in what became the Northern Lines Merger Cases:

      “Neither Great Northern nor Northern Pacific would interchange traffic with Milwaukee [at Longview, Washington] except in circumstances which gave Northern Lines the longest possible haul over their own roads. This privilege of Northern Lines not to 'shorthaul’ themselves means that traffic originating on the Milwaukee east of of the Twin Cities [and] destined for Portland or California was required to be turned over to one of the merging lines at the Twin Cities. As a consequence, Milwaukee was precluded from being a true transcontinental competitor and was unable to make full use of its extensive trackage ending only a few miles short of Portland. Moreover, Milwaukee was completely precluded from the extensive North-South traffic on the West Coast.” 296 F. Supp. 853, 865 (DC 1968).

       Since the instant case was litigated below on the express assumption that the Northern Lines merger, and the accompanying condition, would ultimately be affirmed, the Milwaukee’s current operation does not constitute a “change in circumstances” so much as a realization of the assumption.

       The briefs do not clearly reflect under what arrangements Milwaukee cars have been reaching Peninsula since March 22, 1971, though it is plain that Milwaukee trains have not been moving directly to the North Portland interchange.

       The contract here referred to is a 1966 agreement between Milwaukee and the Northern Lines, the terms of which were incorporated in large part into the Commission’s conditions accompanying the approval of the Northern Lines merger. In particular, the agreement provided that Milwaukee could operate over SP&S lines as far south as the Hoyt St. Yard, and that SP&S would provide switching of Milwaukee cars at Vancouver and Portland “to or from industries and connecting carriers to the extent such service is performed by [Burlington Northern] or SP&S for itself or any other carrier.” These provisions were the direct predecessors of the vaguer Condition 24 (a), quoted above.

       A source of confusion in this ease has been the extent to which various carriers either would possess or sought to possess trackage rights over Peninsula’s main track (as opposed to the interchange tracks at North Portland), so the reader is alerted to tread carefully through the descriptions of the pleadings and the opinions below.

       Section 3 (5) of the Act, 49 U. S. C. § 3 (5), provides in pertinent part:
      “If the Commission finds it to be in the public interest and to be practicable, without substantially impairing the ability of a common carrier by railroad owning or entitled to the enjoyment of terminal facilities to handle its own business, it shall have power by order to require the use of any such terminal facilities, including main-line track or tracks for a reasonable distance outside of such terminal, of any common carrier by railroad, by another such carrier or other such carriers, on such terms and for such compensation as the carriers affected may agree upon, or, in the event of a failure to agree, as the Commission may fix as just and reasonable for the use so required, to be ascertained on the principle controlling compensation in condemnation proceedings. . . .”

       We are told that “bridge trackage rights,” permitting SP only to haul cars from one end of the line to the other, are to be contrasted with “full user rights” or “common use,” which would permit SP to serve any industries located along the UP track. See Brief for Appellees SP&S and UP 27.

       Like Milwaukee, SP had mentioned § 3 (5) in connection with its § 5 (2) petition for inclusion, asking for
      “trackage rights between East Portland and the yards of Peninsula Terminal Company, both as a condition to participation in ownership of Peninsula Terminal Company, and also under section 3 (5) . .., independently of the request for participation in ownership.” App. 169.
      The hearing examiner and the Commission treated this § 3 (5) request as having been superseded by SP’s separate § 3 (5) proceedings, which, if anything, sought broader relief. We do likewise.

       Eight railway employee organizations opposed the petitions and applications of Milwaukee and SP. None of their contentions are before us now.

       In return for inclusion in the purchase of Peninsula, SP and Milwaukee were to be required to make equal contribution to the cost of the shares of capital stock and the locomotive equipment of Peninsula.
      Milwaukee's inclusion in the purchase was made contingent, not only on ultimate approval of the Northern Lines merger, but also upon Milwaukee’s filing a § 1 (18) request for a “certificate of convenience and necessity authorizing railroad operation between Long-view Junction, Wash., and Portland, Oreg.” Given Condition 24 (a), the Commission rejected the proposition that a § 1 (18) certificate would be necessary before Milwaukee could begin operating in Portland, and the question is not before us on appeal.

       Did this § 5 (2) order grant SP the trackage rights it sought from the Albina Yard? SP contended below that it did, arguing that the only individually owned track in the area that was relevant to the issue was the UP track from North Portland to the Albina Yard, and that the examiner did seem to have in mind all intervening tracks. To protect itself on this point, however, SP filed an exception to the hearing examiner’s recommendations, arguing that he should have granted the requested trackage rights under §5(2).
      As for Milwaukee’s apparent effort to claim a § 3 (5) right to trackage over the North Portland interchange tracks, see Milwaukee’s Supplement to Petition for Inclusion, quoted supra, we can only say that it was handled very ambiguously by the hearing examiner. The best explanation of his action is that he deemed it unnecessary to grant trackage rights to Milwaukee under § 3 (5), since he was granting them under § 5 (2). Alternatively, he may have thought that Condition 24 (a) gave Milwaukee trackage rights over the North Portland interchange. Milwaukee did not file an exception on this issue and has not pressed it on this appeal. Cf. Brief for Appellants 34.

       Whether or not SP had in fact sought, under § 3 (5), the right to operate over Peninsula’s main track was the subject of strenuous dispute before the hearing examiner. Counsel were unable to agree on the meaning of “common use,” so the result of the interchange is not perfectly clear, but SP’s counsel appeared to concede that his client sought no more than the right to operate to the North Portland interchange and to connect there with Peninsula (in addition, of course, to equal ownership in the stock of Peninsula). In any event, it is clear that the hearing examiner did not recommend granting any right to operate over the Peninsula main track, and we note that SP did not file an exception on this matter.

       SP&S and UP contended, in addition, that SP and Milwaukee are not “railroads in the territory involved” within the meaning of § 5 (2) (d), and that the Commission, accordingly, did not have jurisdiction to include these two lines in the purchase of Peninsula. The Commission squarely rejected this contention, and since SP&S and UP do not raise it in their briefs here, we assume that the Commission decided the question correctly and discuss it no further.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    STEWART v. MASSACHUSETTS
    No. 71-5446.
    Decided June 29, 1972
   Per Curiam.

The appellant in this case was sentenced to death. The imposition and carrying out of that death penalty constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Furman v. Georgia, ante, p. 238. The motion for leave to proceed in forma pauperis is granted. The judgment is therefore vacated insofar as it leaves undisturbed the death penalty imposed, and the case is remanded for further proceedings.


text:
    June 26, 1972
    No. 70-143.
    Shames et al. v. Nebraska et al.
   Appeal from D. C. Neb. Judgment affirmed. Mr. Justice Douglas would note probable jurisdiction.


text:
    No. 71-1063.
    Carey v. Elrod et al.
   Appeal from Sup. Ct. Ill. dismissed for want of substantial federal question. Mr. Justice Douglas would note probable jurisdiction.


text:
    No. 71-1093.
    Westent, Inc. v. Department of Alcoholic Beverage Control of California et al.
   Appeal from Ct. App.. Cal., 1st App. Dist. dismissed for want of substantial federal question. Mr. Justice Douglas would note probable jurisdiction.


text:
    No. 71-5302.
    Caulk et ux. v. Nichols, Judge.
   Appeal from Sup. Ct. Del. dismissed for want of substantial federal question. Mr. Justice Douglas would note probable jurisdiction.


author: Me. Chief Justice Burgee, Mr. Justice Powell, Mr. Justice Rehnquist,

text:
    No. 71-1044.
    Rosenfeld v. New Jersey.

      [This opinion applies also to No. 70-5323, Lewis v. City of New Orleans, post, p. 913, and No. 71-6535, Brown v. Oklahoma, post, p. 914.]

   Appeal from Super. Ct. N. J. Judgment vacated and case remanded for reconsideration in light of Cohen v. Cali- jornia., 403 U. S. 15 (1971), and Gooding v. Wilson, 405 U. S. 518 (1972).

Me. Chief Justice Burgee,

with whom Me. Justice Blackmun and Mr. Justice Rehnquist join, dissenting.

I am constrained to express my profound disagreement with what the Court does in these three cases on the basis of Gooding v. Wilson, 405 U. S. 518 (1972).

The important underlying aspect of these cases goes really to the function of law in preserving ordered liberty. Civilized people refrain from “taking the law into their own hands” because of a belief that the government, as their agent, will take care of the problem in an organized, orderly way with as nearly a uniform response as human skills can manage. History is replete with evidence of what happens when the law cannot or does not provide a collective response for conduct so widely regarded as impermissible and intolerable.

It is barely a century since men in parts of this country carried guns constantly because the law did not afford protection. In that setting, the words used in these cases, if directed toward such an armed civilian, could well have led to death or serious bodily injury. When we undermine the general belief that the law will give protection against fighting words and profane and abusive language such as the utterances involved in these cases, we take steps to return to the law of the jungle. These three cases, like Gooding, are small but symptomatic steps. If continued, this permissiveness will tend further to erode public confidence in the law — that subtle but indispensable ingredient of ordered liberty.

In Rosenfeld’s case, for example, civilized people attending such a meeting with wives and children would not likely have an instantaneous, violent response, but it does not unduly tax the imagination to think that some justifiably outraged parent whose family were exposed to the foul mouthings of the speaker would “meet him outside” and, either alone or with others, resort to the 19th century’s vigorous modes of dealing with such people. I cannot see these holdings as an “advance” in human liberty but rather a retrogression to what men have struggled to escape for a long time.

Mr. Justice Powell,

with whom The Chief Justice and Mr. Justice Blackmun join, dissenting.

It has long been established that the First and Fourteenth Amendments prohibit the States from punishing all but the most “narrowly limited classes of speech.” Chaplinsky v. New Hampshire, 315 U. S. 568, 571 (1942). The right of free speech, however, has never been held to be absolute at all times and under all circumstances. To so hold would sanction invasion of cherished personal rights and would deny the States the power to deal with threats to public order. As the Court noted in Chaplinsky:

“[I]t is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. ‘Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.’ Cantwell v. Connecticut, 310 U. S. 296, 309-310.” 316 U. S., at 571-672. (Footnotes omitted.)

This case presents an example of gross abuse of the respected privilege in this country of allowing every citizen to speak his mind. Appellant addressed a public school board meeting attended by about 150 people, approximately 40 of whom were children and 25 of whom were women. In the course of his remarks he used the adjective “m-f-” on four occasions, to describe the teachers, the school board, the town, and his own country.

For using this language under these circumstances, appellant was prosecuted and convicted under a New Jersey statute which provides:

“Any person who utters loud and offensive or profane or indecent language in any public street or other public place, public conveyance, or place to which the public is invited . . . [i]s a disorderly person.” N. J. Rev. Stat. §2A:170-29 (1) (1971).

Prior to appellant’s prosecution, the Supreme Court of New Jersey had limited the statute’s coverage as follows:

“[T]he words must be spoken loudly, in a public place and must be of such a nature as to be likely to incite the hearer to an immediate breach of the peace or to be likely, in the light of the gender and age of the listener and the setting of the utterance, to affect the sensibilities of a hearer. The words must be spoken with the intent to have the above effect or with a reckless disregard of the probability of the above consequences.” State v. Profaci, 56 N. J. 346, 353, 266 A. 2d 579, 583-584 (1970).

The Court today decides to vacate and remand this case for reconsideration in light of Gooding v. Wilson, 405 U. S. 518 (1972), and Cohen v. California, 403 U. S. 15 (1971). As it seems to me that neither of these cases is directly relevant, and that considerations not present in those cases are here controlling, I respectfully dissent.

Perhaps appellant's language did not constitute “fighting words” within the meaning of Chaplimky. While most of those attending the school board meeting were undoubtedly outraged and offended, the good taste and restraint of such an audience may have made it unlikely that physical violence would result. Moreover, the offensive words were not directed at a specific individual. But the exception to First Amendment protection recognized in Chaplinsky is not limited to words whose mere utterance entails a high probability of an outbreak of physical violence. It also extends to the willful use of scurrilous language calculated to offend the sensibilities of an unwilling audience.

The Court of Appeals for the District of Columbia Circuit has addressed this issue more explicitly. Judge McGowan, writing for the court en banc in Williams v. District of Columbia, 136 U. S. App. D. C. 56, 419 F. 2d 638 (1969), correctly stated:

“Apart from punishing profane or obscene words which are spoken in circumstances which create a threat of violence, the state may also have a legitimate interest in stopping one person from ‘inflict [ing] injury’ [Chaplinsky v. New Hampshire, 315 U. S., at 572] on others by verbally assaulting them with language which is grossly offensive because of its profane or obscene character. The fact that a person may constitutionally indulge his taste for obscenities in private does not mean that he is free to intrude them upon the attentions of others.” Id., at 64, 419 F. 2d, at 646.

I agree with this view that a verbal assault on an unwilling audience may be so grossly offensive and emotionally disturbing as to be the proper subject of criminal proscription, whether under a statute denominating it disorderly conduct, or, more accurately, a public nuisance. Judge McGowan further noted in Williams:

“[A] breach of the peace is threatened either because the language creates a substantial risk of provoking violence, or because it is, under 'contemporary community standards/ SO' grossly offensive to members of the public who actually overhear it as to amount to a nuisance.” Ibid. (Footnotes omitted.)

The Model Penal Code, proposed by the American Law Institute, also recognizes a distinction between utterances which may threaten physical violence and those which may amount to a public nuisance, recognizing that neither category falls within the protection of the First Amendment. See Model Penal Code §§ 250.2 (1) (a) and (b). (Proposed Official Draft 1962.)

The decision in Gooding v. Wilson, supra, turned largely on an application of the First Amendment over-breadth doctrine, and the Court’s remand order suggests that the overbreadth doctrine should be applied in this case. The consequences and the unusual character of the overbreadth doctrine have been accurately summarized in Note, The First Amendment Overbreadth Doctrine, 83 Harv. L. Rev. 844, 852 (1970):

“[The overbreadth doctrine] results often in the wholesale invalidation of the legislature’s handiwork, creating a judicial-legislative confrontation.
“In the end, this departure from the normal method of judging the constitutionality of statutes must find justification in the favored status of rights to expression and association in the constitutional scheme.” (Footnotes omitted.)

Because a “judicial-legislative confrontation” often results from application of the overbreadth doctrine, and because it is a departure from the normal method of judicial review, it should be applied with restraint. In my view, the doctrine is not applicable in this case.

The New Jersey statute was designed to prohibit the public use of language such as that involved in this case, and certainly the State has an interest — perhaps a compelling one — in protecting nonassenting citizens from vulgar and offensive verbal assaults. A statute directed narrowly to this interest does not impinge upon the values of protected free speech. Legitimate First Amendment interests are not furthered by stretching the overbreadth doctrine to cover a case of this kind. In Cohen v. California, 403 U. S. 15 (1971), which deals with the question of what expressive activity is constitutionally punishable, Mr. Justice Harlan described the purpose of the free speech guarantee as follows:

“It is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests. See Whitney v. California, 274 U. S. 357, 375-377 (1927) (Brandéis, J., concurring).” Id., at 24.

The purpose of the overbreadth doctrine is to excise statutes which have a deterrent effect on the exercise of protected speech. It is difficult to believe that sustaining appellant’s conviction under this statute will deter others from the exercise of legitimate First Amendment rights.

The line between such rights and the type of conduct proscribed by the New Jersey statute is difficult to draw. The preservation of the right to free and robust speech is accorded high priority in our society and under the Constitution. Yet, there are other significant values. One of the hallmarks of a civilized society is the level and quality of discourse. We have witnessed in recent years a disquieting deterioration in standards of taste and civility in speech. For the increasing number of persons who derive satisfaction from vocabularies dependent upon filth and obscenities, there are abundant opportunities to gratify their debased tastes. But our free society must be flexible enough to tolerate even such a debasement provided it occurs without subjecting unwilling audiences to the type of verbal nuisance committed in this case. The shock and sense of affront, and sometimes the injury to mind and spirit, can be as great from words as from some physical attacks.

I conclude in this case that appellant’s utterances fall within the proscription of the New Jersey statute, and are not protected by the First Amendment. Accordingly, I would dismiss the appeal for want of a substantial federal question.

Mr. Justice Rehnquist,

with whom The Chief Justice and Mr. Justice Blackmun join, dissenting.

In Lewis, the police were engaged in making an arrest of appellant’s son on grounds not challenged here. While the police were engaged in the performance of their duty, appellant intervened and ultimately addressed the police officers as “g— d— m-f-police.” At that point she herself was arrested for violation of a city ordinance providing:

“It shall be unlawful and a breach of the peace for any person wantonly to curse or revile or to use obscene or opprobrious language toward or with reference to any member of the city police while in the actual performance of his duty.” § 49-7, Code of City of New Orleans.

In Rosenfeld, appellant appeared and spoke at a public school board meeting that was held in an auditorium and was attended by more than 150 men, women, and children of mixed ethnic and racial backgrounds. It was estimated that there were approximately 40 children and 25 women present at the meeting. During his speech, appellant used the adjective “m- f-” on four different occasions while concluding his remarks. Testimony varied as to what particular nouns were joined with this adjective, but they were said to include teachers, the community, the school system, the school board, the country, the county, and the town.

Rosenfeld was convicted under a New Jersey statute that provides:

“Any person who utters loud and offensive or profane or indecent language in any public street or other public place, public conveyance, or place to which the public is invited ... [i] s a disorderly person.” N. J. Rev. Stat. §2A:170-29 (1) (1971).

The New Jersey Supreme Court, prior to the instant case, had placed the following limiting construction on the New Jersey statute:

“[T]he words must be spoken loudly, in a public place and must be of such a nature as to be likely to incite the hearer to an immediate breach of the peace or to be likely, in the light of the gender and age of the listener and the setting of the utterance, to affect the sensibilities of a hearer. The words must be spoken with the intent to have the above effect or with a reckless disregard of the probability of the above consequences.” State v. Profaci, 56 N. J. 346, 353, 266 A. 2d 579, 583-584 (1970).

Appellant in Brown spoke to a large group of men and women gathered in the University of Tulsa chapel. During a question and answer period he referred to some policemen as “m-f-fascist pig cops” and to a particular Tulsa police officer as that “black m- f-pig Brown was convicted of violating an Oklahoma statute that prohibited the utterance of “any obscene or lascivious language or word in any public place, or in the presence of females . . . .” Okla. Stat. Ann., Tit. 21, § 906 (1958).

The Court vacates and remands these cases for reconsideration in the light of Gooding v. Wilson, 405 U. S. 518 (1972), and Cohen v. California, 403 U. S. 15 (1971) (the latter decided some four months before the opinion of the New Jersey Superior Court, Appellate Division, which upheld Rosenfeld’s conviction, and six months before that of the Oklahoma Court of Criminal Appeals in Brown).

Insofar as the Court’s remand is based on Cohen, supra, for the reasons stated in Mr. Justice Black-mun’s dissenting opinion in that case, id., at 27, I would not deny to these States the power to punish language of the sort used here by appropriate legislation. Appellant Lewis’ words to the police officers were “fighting words,” and those of appellants Rosenfeld and Brown were “lewd and obscene” and “profane” as those terms are used in Chaplinsky v. New Hampshire, 315 U. S. 568 (1942), the leading case in the field. Delineating the type of language that the States may constitutionally punish, the Court there said:

“There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. ‘Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.’ Cantwell v. Connecticut, 310 U. S. 296, 309-310.” 316 U. S., at 571-572.

The language used by these appellants therefore clearly falls within the class of punishable utterances described in Chaplinsky.

Gooding v. Wilson, supra, dealt both with the type of speech that the States could constitutionally punish, and the doctrine of First Amendment overbreadth. With respect to the latter, the Court said:

“The constitutional guarantees of freedom of speech forbid the States to punish the use of words or language not within ‘narrowly limited classes of speech.’ Chaplinsky v. New Hampshire, 315 U. S. 568, 571 (1942). Even as to such a class, however, because ‘the line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn,’ Speiser v. Randall, 357 U. S. 513, 525 (1958), ‘[i]n every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom,’ Cant well v. Connecticut, 310 U. S. 296, 304 (1940). In other words, the statute must be carefully drawn or be authoritatively construed to punish only unprotected speech and not be susceptible of application to protected expression.” Id., at 521-522.

Unless we are to distort the doctrine of overbreadth into a verbal game of logic-chopping and sentence-parsing reminiscent of common-law pleading, it cannot fairly be said here that either the New Orleans ordinance, or the New Jersey statute as construed by the highest court of that State, could reasonably be thought “unduly to infringe the protected freedom,” Cantwell v. Connecticut, 310 U. S., at 304.

I would dismiss these appeals for lack of a substantial federal question.

       Insofar as the Court’s decision in Gooding turns on vagueness principles, it seems inapplicable to this case. The essence of the due process vagueness concern is that no man shall be punished for violating a statute which is not “sufficiently explicit to inform those who are subject, to it what conduct on their part will render them liable to its penalties . . . .” Connally v. General Construction Co., 269 U. S. 385, 391 (1926). Although the New Jersey statute involved in this case is hardly a model of clarity, it cannot reasonably be said that appellant could have been unaware that the language used under the circumstances was proscribed by the statute. Unless he was a person of infirm mentality, appellant certainly knew that his deliberate use four times of what Mr. Justice Harlan termed in Cohen a “scurrilous epithet,” in the presence of a captive audience including women and children, violated the statute.

       See, e. g., United States v. Raines, 362 U. S. 17, 20-22 (1960)

       See Note,, The First Amendment Overbreadth Doctrine, 83 Harv. L. Rev. 844, 853 (1970).

       Nor does the continued existence of the New Jersey statute, which must now be construed and applied by the New Jersey courts in light of Gooding, have the effect of deterring others in the exercise of their First, Amendment rights. To remand this case with the suggestion that the overbreadth doctrine be applied accomplishes only one result: it creates the potential that appellant will receive an undeserved windfall.
      I recognize, of course, that serious definitional and enforcement problems are likely to arise even where the statutes in this area are carefully drawn. Yet the inherent difficulty of the problem is not sufficient reason for legislatures and the courts to abdicate their responsibilitjf to protect nonassenting citizens from verbal conduct which is so grossly offensive as to amount to a nuisance.

      [This opinion, applies also to No. 70-5323, Lewis v. City of New Orleans, post, p. 913, and No. 71-6535, Brown v. Oklahoma, post, p. 914.]


author: Mr. Justice Powell,

text:
    No. 70-5323.
    Lewis v. City of New Orleans.
   Appeal from Sup. Ct. La. Motion for leave to proceed in forma pauperis granted. Judgment vacated and case remanded for reconsideration in light of Gooding v. Wilson, 405 U. S. 518 (1972).

Mr. Justice Powell,

concurring in the result.

Under Chaplinsky v. New Hampshire, 315 U. S. 568 (1942), the issue in a case of this kind is whether “fighting words” were used. Here a police officer, while in the performance of his duty, was called “g— d— m-f-” police.

If these words had been addressed by one citizen to another, face to face and in a hostile manner, I would have no doubt that they would be “fighting words.” But the situation may be different where such words are addressed to a police officer trained to exercise a higher degree of restraint than the average citizen. See Model Penal Code § 250.1, Comments 14 (Tent. Draft No. 13, 1961).

I see no genuine overbreadth problem in this case for the reasons stated in my dissenting opinion in Rosenfeld v. New Jersey, ante, p. 903.

I would remand for reconsideration only in light of Chaplinsky.

[For dissenting opinion of Mr. Chief Justice Burger, see ante, p. 902.]

[For dissenting opinion of Mr. Justice Rehnquist, see ante, p. 909.]


text:
    No. 71-6535.
    Brown v. Oklahoma.
   Appeal from Ct. Crim. App. Okla. Motion for leave to proceed in forma pauperis granted. Judgment vacated and case remanded for reconsideration in light of Cohen v. California, 403 U. S. 15 (1971), and Gooding v. Wilson, 405 U. S. 518 (1972).

Mr. Justice Powell,

concurring in the result.

The statute involved in this case is considerably broader than the statute involved in Rosenfeld v. New Jersey, ante, p. 901, and it has not been given a narrowing construction by the Oklahoma courts. Moreover, the papers filed in this case indicate that the language for which appellant was prosecuted was used in a political meeting to which appellant had been invited to present the Black Panther viewpoint. In these circumstances language of the character charged might well have been anticipated by the audience.

These factors lead me to conclude that this case is significantly different from Rosenfeld v. New Jersey, supra. I therefore concur in the Court’s disposition of this case.

[For dissenting opinion of Mr. Chief Justice Burger, see ante, p. 902.]

[For dissenting opinion of Mr. Justice Rehnquist, see ante, p. 909.]

Certiorari Granted — Reversed. (See No. 71-5625, ante, p. 229; and No. 71-6497, ante, p. 234.)

Certiorari Granted — Remanded or Vacated and Remanded.


text:
    No. 70-5125.
    Clark v. Boslow, Institution Director.
   C. A. 4th Cir. Motion for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of McNeil v. Director, Patuxent Institution, 407 U. S. 245.


text:
    No. 70-5336.
    Farrell v. Schmidt, Secretary, Department of Health and Social Services, et al.
   Sup. Ct. Wis. Motion for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Humphrey v. Cady, 405 U. S. 504.


text:
    No. 71-239.
    Ferguson, U. S. District Judge v. United States.
   Certiorari before judgment to C. A. 9th Cir. Certiorari granted and case remanded for further consideration in light of United States v. United States District Court for the Eastern District of Michigan (Plamondon et al., Real Parties in Interest), 407 U. S. 297.


text:
    No. 71-1028.
    Campopiano v. United States.
   C. A. 2d Cir. Certiorari granted. Judgment vacated and case remanded for further consideration in light of Barker v. Wingo, Warden, 407 U. S. 514.


text:
    No. 71-5100.
    Bacon v. United States.
   C. A. 9th Cir. Motion for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Gelbard v. United States, and United States v. Egan, ante, p. 41.


text:
    No. 71-847.
    Saglimbene v. United States.
   C. A. 2d Cir. Certiorari granted. Judgment vacated and case remanded for further consideration in light of Barker v. Wingo, Warden, 407 U. S. 514.


text:
    No. 71-5040.
    McKenzie v. Director, Patuxent Institution.
   Ct. Sp. App. Md. Petition for rehearing granted and order of November 22, 1971 [404 U. S. 979], denying petition for writ of certiorari vacated. Motion for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of McNeil v. Director, Patuxent Institution, 407 U. S. 245. Mr. Justice Douglas would grant certiorari and reverse in light of McNeil v. Director, Patuxent Institution, supra.


text:
    No. 71-5672.
    Olsen v. United States.
   C. A. 9th Cir. Motion for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Gelbard v. United States, and United States v. Egan, ante, p. 41.


text:
    No. 71-6196.
    Kelley v. Kentucky.
   Ct. App. Ky. Motion for leave to proceed in forma pauperis and cer-tiorari granted. Judgment vacated and case remanded for further consideration in light of Barker v. Wingo, Warden, 407 U. S. 514.


text:
    No. 71-6337.
    Fasanaro v. United States.
   C. A. 2d Cir. Motion for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Barker v. Wingo, Warden, 407 U. S. 514.


text:
    No. 35,
    Orig.
    United States v. Maine et al.
   [Motion for leave to file bill of complaint granted, 395 U. S. 955.] Motion of Commonwealth of Massachusetts for a preliminary injunction denied. Mr. Justice Douglas took no part in the consideration or decision of this motion.


text:
    No. 40,
    Orig.
    Pennsylvania v. New York et al.,
   407 U. S. 206. It is ordered that the expenditures of John P. Davis as Special Master in the amount of $626.54 be approved. It is further ordered that the balance of advances made by the parties to meet expenses in the amount of $1,373.46 be retained by the Special Master and applied toward his compensation. It is further ordered that the total compensation for the Special Master be fixed at ten thousand five hundred dollars ($10,500) and that that amount, less the balance of the money advanced for expenses, shall be paid to him by Western Union out of the funds in its possession which are the subject of this suit and that Western Union be given credit for that amount divided pro rata among the parties who would otherwise be entitled to the money under the opinion and decree of this Court.


text:
    No. 50,
    Orig.
    Vermont v. New York et al.
   [Motion to file bill of complaint granted, 406 U. S. 186.] It is ordered that Justice R. Ammi Cutter (retired) be, and he is hereby, appointed Special Master to conduct supplemental proceedings in this case. The Special Master shall have authority to fix the time and conditions for filing additional pleadings and to direct subsequent proceedings, and authority to summon witnesses, issue subpoenas, and take such evidence as may be introduced and such as he may deem it necessary to call for. The Master is directed to submit such reports as he may deem appropriate.

The Master shall be allowed his actual expenses. The allowances to him, the compensation paid to his technical, stenographic, and clerical assistants, the cost of printing his reports, and all other proper expenses shall be charged against and be borne by the parties in such proportion as the Court may hereafter direct.

It is further ordered that if the position of Special Master becomes vacant during the recess of the Court, The Chief Justice shall have authority to make a new designation which shall have the same effect as if originally made by the Court herein.


text:
    No. 54,
    Orig.
    United States v. Florida et al.
   [Motion to file bill of complaint granted, 405 U. S. 984.] Motion to defer consideration denied. Motion of the State of Texas for appointment of a Special Master granted. It is ordered that Honorable Charles L. Powell, Senior Judge of the United States District Court for the Eastern District of Washington, be, and he is hereby, appointed Special Master in this case. The Special Master shall have authority to fix the time and conditions for filing additional pleadings and to direct subsequent proceedings, and authority to summon witnesses, issue subpoenas, and take such evidence as may be introduced and such as he may deem it necessary to call for. The Master is directed to submit such reports as he may deem appropriate.

The Master shall be allowed his actual expenses. The allowances to him, the compensation paid to his technical, stenographic, and clerical assistants, the cost of printing his reports, and all other proper expenses shall be charged against and be borne by the parties in such proportion as the Court may hereafter direct.

It is further ordered that if the position of Special Master becomes vacant during the recess of the Court, The Chief Justice shall have authority to make a new designation which shall have the same effect as if originally made by the Court herein.


text:
    No. 70-2.
    United States v. 12 200-Ft. Reels of Super 8mm. Film et al. (Paladini, Claimant).
   Appeal from D. C. C. D. Cal. [Probable jurisdiction noted, 403 U. S. 930] ;


text:
    No. 70-18.
    Roe et al. v. Wade, District Attorney of Dallas County.
   Appeal from D. C. N. D. Tex. [Probable jurisdiction postponed, 402 U. S. 941] ;


text:
    No. 70-40.
    Doe et al. v. Bolton, Attorney General of Georgia, et al.
   Appeal from D. C. N. D. Ga. [Probable jurisdiction postponed, 402 U. S. 941];


text:
    No. 70-69.
    United States v. Orito.
   Appeal from D. C. E. D. Wis. [Probable jurisdiction noted, 404 U. S. 819]; and


text:
    No. 70-73.
    Miller v. California.
   Appeal from App. Dept., Super. Ct. Cal., County of Orange. [Probable jurisdiction noted, 401 U. S. 992.] These cases are restored to the calendar for reargument. Mr. Justice Douglas dissents in Nos. 70-18 and 70-40.


text:
    No. 70-35.
    Austin et al. v. Meyer et al.
   Appeal from D. C. M. D. Fla. Motion of appellees to vacate stay heretofore granted by Mr. Justice Black on August 31, 1970, presented to Mr. Justice Powell, and by him referred to the Court, granted. Mr. Justice Douglas took no part in the consideration or decision of this motion.


text:
    No. 71-1398.
    Warner, Secretary of the Navy v. Flemings.
   C. A. 2d Cir. [Certiorari granted, 407 U. S. 919.] Motion of respondent for appointment of counsel granted. It is ordered that Michael Meltsner, Esquire, of New York, New York, a member of the Bar of this Court, be, and he is hereby, appointed to serve as counsel for respondent in this case.


text:
    No. 71-1447.
    No. 71-1554.
    Davidson, Secretary, Maryland Department of Employment and Social Services, et al. v. Francis et al.; and United States Chamber of Commerce v. Francis et al.
   Appeals from D. C. Md. The Solicitor General is invited to file a brief in these cases expressing the views of the United States.


text:
    No. 71-6633.
    Valdez v. Nelson, Warden.
   Motion for leave to file petition for writ of habeas corpus denied.


text:
    No. 71-6620.
    No. 71-6645.
    Headley et al. v. Palmieri, U. S. District Judge; and Reed v. Lawrence, U. S. District Judge.
   Motions for leave to file petitions for writs of mandamus denied.


text:
    No. 71-1437.
    Whitcomb, Governor of Indiana, et al. v. Eschbach, U. S. District Judge.
   Motion of Gaither and Roth [plaintiffs in related case] for leave to proceed in forma pauperis granted. Motion for leave to file petition for writ of prohibition and/or mandamus denied.


text:
    No. 71-653.
    Gibson et al. v. Berryhill et al.
   Appeal from D. C. M. D. Ala. Probable jurisdiction noted.


text:
    No. 71-1456.
    Salyer Land Co. et al. v. Tulare Lake Basin Water Storage District.
   Appeal from D. C. E. D. Cal. Probable jurisdiction noted.


text:
    No. 71-575.
    Gomez v. Perez.
   Appeal from Ct. Civ. App. Tex., 4th Sup. Jud. Dist. Probable jurisdiction noted and case set for oral argument with No. 71-6078 [S. v. D., probable jurisdiction postponed, 405 U. S. 1064].


text:
    No. 71-1422.
    Kaplan v. California.
   App. Dept., Super. Ct. Cal., County of Los Angeles. Certiorari granted.


text:
    No. 71-1051.
    Paris Adult Theatre I et al. v. Slaton, District Attorney, Atlanta Judicial Circuit, et al.
   Sup. Ct. Ga. Motion to supplement petition and certiorari granted. Parties requested to brief and argue, in addition to those questions presented in the petition, the following question: “Whether the display of any sexually oriented films in a commercial theatre, when surrounded by notice to the public of their nature and by reasonable protection against exposure of the films to juveniles, is constitutionally protected?”


text:
    No. 71-1225.
    Gagnon, Warden v. Scarpelli.
   C. A. 7th Cir. Motion of respondent for leave to proceed in forma pauperis and certiorari granted. Motion of respondent for appointment of counsel granted. It is ordered that William M. Coffey, Esquire, of Milwaukee, Wisconsin, a member of the Bar of this Court, be, and he is hereby, appointed to serve as counsel for respondent in this case.


text:
    No. 71-1315.
    Alexander et al. v. Virginia.
   Sup. Ct. Va. Certiorari granted. Parties are requested to brief and argue in addition to those questions presented in the petition the following question: “Whether the display of any sexually oriented pictorial magazines for commercial sale, when surrounded by notice to the public of their nature and by reasonable protection against exposure of the magazines to juveniles, is constitutionally protected?”


text:
    No. 71-6193.
    Brown et al. v. United States.
   C. A. 6th Cir. Motion for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 71-6356.
    Doe et al. v. McMillan et al.
   C. A. D. C. Cir. Motion for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 71-6316.
    Goosby et al. v. Osser et al.
   C. A. 3d Cir. Motion of American Jewish Committee (National) et al. for leave to file a brief as amici curiae granted. Motion for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 71-379.
    Reed v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 71-405.
    Egan v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 71-1058.
    Beckman v. Walter Kidde & Co., Inc., et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 71-1121.
    Petree v. Georgia.
   Ct. App. Ga. Cer-tiorari denied.


text:
    No. 71-1123.
    Rafferty et ux. v. Commissioner of Internal Revenue.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 71-1214.
    Stein v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 71-1313.
    Ham et al. v. Romney, Secretary of Housing and Urban Development, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 71-1316.
    Crenshaw, Executor v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 71-1327.
    Schwartz et al. v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 71-1329.
    Warzyniak v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 71-1330.
    Katz v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 71-1333.
    Wolfe v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 71-1343.
    Rossi v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 71-1349.
    Brown v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 71-1351.
    Brenneman v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 71-1409.
    United States Steel Corp. et al. v. United Mine Workers of America et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 71-1421.
    Bell v. Taylor, Executor.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 71-1423.
    Greene v. Real Estate Commission of the District of Columbia.
   Ct. App. D. C. Cer-tiorari denied.


text:
    No. 71-1425.
    Central Penn National Bank et al. v. Trustees of the Property of the Penn Central Transportation Co.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 71-1430.
    Seaman, dba Les’s Roller Rink et al. v. Evans.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 71-1443.
    California Department of Human Resources Development et al. v. Crow et al.
   Petition for certiorari before judgment to C. A. 9th Cir. Certiorari denied.


text:
    No. 71-1444.
    Blum v. Pennsylvania.
   Sup. Ct. Pa. Certiorari denied.


text:
    No. 71-1446.
    Hutter et al. v. Door County, Wisconsin, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 71-1449.
    Golden et al. v. The Shearman et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 71-1450.
    Poff v. Department of Alcoholic Beverage Control of California et al.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 71-1454.
    Brennan et al. v. Haines et al.
   C. A. 3d Cir. Certiorari denied.