author: Mr. Justice Brennan

text:
    UNITED STATES v. RYAN
    No. 758.
    Argued April 26, 1971
    Decided May 24, 1971
    BRENNAN, J., delivered the opinion for a unanimous Court.

      Jerome M. Feit argued the cause for the United States. With him on the briefs were Solicitor General Gris-wold, Assistant Attorney General Wilson, and Philip R. Monahan.

      Herbert J. Miller, Jr., argued the cause for respondent. With him on the brief were Raymond G. Larroca and Nathan Lewin.

   Mr. Justice Brennan

delivered the opinion of the Court.

In March of 1968, respondent was served with a subpoena duces tecum commanding him to produce before a federal grand jury all books, records, and documents of five named companies doing business in Kenya. He moved, on several grounds, to quash the subpoena. The District Court denied the motion to quash and, in light of respondent’s claim that Kenya law forbids the removal of books of account, minute books, and lists of members from the country without consent of its Registrar of Companies, ordered him to attempt to secure such consent and, if unsuccessful, to make the records available for inspection in Kenya. The Court of Appeals, 430 F. 2d 658 (CA9 1970), held that by directing respondent to make application to a Kenyan official for release of some of the records, the District Court had done “more than deny a motion to quash; it in effect granted a mandatory injunction.” Id., at 659. The Court of Appeals therefore concluded that the order was appealable under 28 U. S. C. § 1292 (a)(1) and, reaching the merits, reversed. Ibid. We granted certiorari, 400 U. S. 1008 (1971). We conclude that the District Court’s order was not appeal-able, and reverse.

Respondent asserts no challenge to the continued validity of our holding in Cobbledick v. United States, 309 U. S. 323 (1940), that one to whom a subpoena is directed may not appeal the denial of a motion to quash that subpoena but must either obey its commands or refuse to do so and contest the validity of the subpoena if he is subsequently cited for contempt on account of his failure to obey. Respondent, however, argues that Cob-bledick does not apply in the circumstances before us because, he asserts, unless immediate review of the District Court’s order is available to him, he will be forced to undertake a substantial burden in complying with the subpoena, and will therefore be “powerless to avert the mischief of the order.” Perlman v. United States, 247 U. S. 7, 13 (1918).

We think that respondent’s assertion misapprehends the thrust of our cases. Of course, if he complies with the subpoena he will not thereafter be able to undo the substantial effort he has exerted in order to comply. But compliance is not the only course open to respondent. If, as he claims, the subpoena is unduly burdensome or otherwise unlawful, he may refuse to comply and litigate those questions in the event that contempt or similar proceedings are brought against him. Should his contentions be rejected at that time by the trial court, they will then be ripe for appellate review. But we have consistently held that the necessity for expedition in the administration of the criminal law justifies putting one who seeks to resist the production of desired information to a choice between compliance with a trial court’s order to produce prior to any review of that order, and resistance to that order with the concomitant possibility of an adjudication of contempt if his claims are rejected on appeal. Cobbledick v. United States, supra; Alexander v. United States, 201 U. S. 117 (1906); cf. United States v. Blue, 384 U. S. 251 (1966); DiBella v. United States, 369 U. S. 121 (1962); Carroll v. United States, 354 U. S. 394 (1957). Only in the limited class of cases where denial of immediate review would render impossible any review whatsoever of an individual’s claims have we allowed exceptions to this principle. We have thus indicated that review is available immediately of a denial of a motion for the return of seized property, where there is no criminal prosecution pending against the movant. See DiBella v. United States, supra, at 131-132. Denial of review in such circumstances would mean that the Government might indefinitely retain the property without any opportunity for the movant to assert on appeal his right to possession. Similarly, in Perlman v. United States, 247 U. S., at 12-13, we allowed immediate review of an order directing a third party to produce exhibits which were the property of appellant and, he claimed, immune from production. To have denied review would have left Perlman “powerless to avert the mischief of the order,” id., at 13, for the custodian could hardly have been expected to risk a citation for contempt in order to secure Perlman an opportunity for judicial review. In the present case, however, respondent is free to refuse compliance and, as we have noted, in such event he may obtain full review of his claims before undertaking any burden of compliance with the subpoena. Perlman, therefore, has no application in the situation before us.

Finally, we do not think that the District Court’s order was rendered a temporary injunction appealable under 28 U. S. C. § 1292 (a)(1) by its inclusion of a provision requiring respondent to seek permission from the Kenyan authorities to remove some of the documents from that country, and in the event that permission was denied to permit Government officials access to the documents in Kenya. The subpoena, if valid, placed respondent under a duty to make in good faith all reasonable efforts to comply with it, and respondent himself had asserted that compliance would be in violation of Kenya law unless permission to remove was properly obtained. Read against this background, the District Court’s order did nothing more than inform respondent before the event of what efforts the District Court would consider sufficient attempts to comply with the subpoena. We cannot imagine that respondent would be prosecuted for contempt if he produced the documents as required but without attempting to obtain permission from the authorities in Kenya. The additional provisions in the order added nothing to respondent’s burden and, if anything, rendered the burden of compliance less onerous. They did not convert denial of a motion to quash into an appealable injunctive order.

Reversed.

      The District Court ordered that:
      “I. The motion of [respondent] to quash the subpoena duces tecum is denied.
      “II. [Respondent] will produce, with the exception of the books of account, minute books and the list of members, before the Federal grand jury at Los Angeles, California, on September 11, 1968, the books, records, papers and documents of Ryan Investment, Ltd., of Nairobi, Kenya, and Mawingo, Ltd., of Nanyuki and Nairobi, Kenya, doing business as The Mount Kenya Safari Club, referred to in the . . . subpoena duces tecum served on [respondent].
      “III. [Respondent] shall forthwith make application to the Registrar of Companies in Kenya to release the books of account, minute books, and list of members so that [respondent] may produce these books, records, papers and documents at the Federal grand jury held at Los Angeles, California, on September 11, 1968, provided that if [respondent] is unable to secure the consent of the Registrar of Companies of Kenya, then [respondent] will malee available to agents of the United States Department of Justice and/or the United States Department of the Treasury the books Of account, minute books, and list of members, of Ryan Investment, Ltd., and Mawingo, Ltd., and these agents may inspect and make copies of these books and records.” App. 63-64.

       The statute provides, in pertinent part, that: “The courts of appeals shall have jurisdiction of appeals from: (1) Interlocutory orders of the district courts of the United States . . . granting, continuing, modifying, refusing or dissolving injunctions . . . .”

       In such event, of course, respondent could still object to the introduction of the subpoenaed material or its fruits against him at a criminal trial. United States v. Blue, 384 U. S. 251, 255 (1966).

        Walker v. Birmingham, 388 U. S. 307 (1967), is not to the contrary. Our holding that the claims there sought to be asserted were not open on review of petitioners’ contempt convictions was based upon the availability of review of those claims at an earlier stage.


source: Caselaw Access Project

license: Public Domain

text:
    BELL v. BURSON, DIRECTOR, GEORGIA DEPARTMENT OF PUBLIC SAFETY
    No. 5586.
    Argued March 23, 1971
    Decided May 24, 1971
    Brennan, J., delivered the opinion of the Court, in which Douglas, HarlaN, Stewart, White, and Marshall, JJ., joined. Burger, C. J., and Black and Blackmun, JJ., concurred in the result.

      Elizabeth Roediger Rindskopf argued the cause for petitioner pro hac vice. With her on the brief was Howard Moore, Jr.

      Dorothy T. Beasley, Assistant Attorney General of Georgia, argued the cause for respondent. With her on the brief were Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, and Courtney Wilder Stanton, Assistant Attorney General.
   Mr. Justice Brennan

delivered the opinion of the Court.

Georgia’s Motor Vehicle Safety Responsibility Act provides that the motor vehicle registration and driver’s license of an uninsured motorist involved in an accident shall be suspended unless he posts security to cover the amount of damages claimed by aggrieved parties in reports of the accident. The administrative hearing conducted prior to the suspension excludes consideration of the motorist’s fault or liability for the accident. The Georgia Court of Appeals rejected petitioner’s contention that the State’s statutory scheme, in failing before suspending the licenses to afford him a hearing on the question of his fault or liability, denied him due process in violation of the Fourteenth Amendment: the court held that “ ‘Fault’ or ‘innocence’ are completely irrelevant factors.” 121 Ga. App. 418, 420, 174 S. E. 2d 235, 236 (1970). The Georgia Supreme Court denied review. App. 27. We granted certiorari. 400 U. S. 963 (1970). We reverse.

Petitioner is a clergyman whose ministry requires him to travel by car to cover three rural Georgia communities. On Sunday afternoon, November 24, 1968, petitioner was involved in an accident when five-year-old Sherry Capes rode her bicycle into the side of his automobile. The child’s parents filed an accident report with the Director of the Georgia Department of Public Safety indicating that their daughter had suffered substantial injuries for which they claimed damages of $5,000. Petitioner was thereafter informed by the Director that unless he was covered by a liability insurance policy in effect at the time of the accident he must file a bond or cash security deposit of $5,000 or present a notarized release from liability, plus proof of future financial responsibility, or suffer the suspension of his driver’s license and vehicle registration. App. 9. Petitioner requested an administrative hearing before the Director asserting that he was not liable as the accident was unavoidable, and stating also that he would be severely handicapped in the performance of his ministerial duties by a suspension of his licenses. A hearing was scheduled but the Director informed petitioner that “[t]he only evidence that the Department can accept and consider is: (a) was the petitioner or his vehicle involved in the accident; (b) has petitioner complied with the provisions of the Law as provided; or (c) does petitioner come within any of the exceptions of the'Law.” App. 11. At the administrative hearing the Director rejected petitioner’s proffer of evidence on liability, ascertained that petitioner was not within any of the statutory exceptions, and gave petitioner 30 days to comply with the security requirements or suffer suspension. Petitioner then exercised his statutory right to an appeal de novo in the Superior Court. Ga. Code Ann. § 92A-602 (1958). At that hearing, the court permitted petitioner to present his evidence on liability, and, although the claimants were neither parties nor witnesses, found petitioner free from fault. As a result, the Superior Court ordered “that the petitioner’s driver’s license not be suspended . . . [until] suit is filed against petitioner for the purpose of recovering damages for the injuries sustained by the child . . . .” App. 15. This order was reversed by the Georgia Court of Appeals in overruling petitioner’s constitutional contention.

If the statute barred the- issuance of licenses to all motorists who did not carry liability insurance or who did not post security, the statute would not, under our cases, violate the Fourteenth Amendment. Ex parte Poresky, 290 U. S. 30 (1933); Continental Baking Co. v. Woodring, 286 U. S. 352 (1932); Hess v. Pawloski, 274 U. S. 352 (1927). It does not follow, however, that the amendment also permits the Georgia statutory scheme where not all motorists, but rather only motorists involved in accidents, are required to post security under penalty of loss of the licenses. See Shapiro v. Thompson, 394 U. S. 618 (1969); Frost & Frost Trucking Co. v. Railroad Comm’n, 271 U. S. 583 (1926). Once licenses are issued, as in petitioner’s case, their continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment. Sniadach v. Family Finance Corp., 395 U. S. 337 (1969); Goldberg V. Kelly, 397 U. S. 254 (1970). This is but an application of the general proposition that relevant constitutional restraints limit state power to terminate an entitlement whether the entitlement is denominated a “right” or a “privilege.” Sherbert v. Verner, 374 U. S. 398 (1963) (disqualification for unemployment compensation); Slochower v. Board of Education, 350 U. S. 551 (1956) (discharge from public employment); Speiser v. Randall, 357 U. S. 513 (1958) (denial of a tax exemption); Goldberg v. Kelly, supra (withdrawal of welfare benefits). See also Londoner v. Denver, 210 U. S. 373, 385-386 (1908); Goldsmith v. Board of Tax Appeals, 270 U. S. 117 (1926); Opp Cotton Mills v. Administrator, 312 U. S. 126 (1941).

We turn then to the nature of the procedural due process which must be afforded the licensee on the question of his fault or liability for the accident. A procedural rule that may satisfy due process in one context may not necessarily satisfy procedural due process in every case. Thus, procedures adequate to determine a welfare claim may not suffice to try a felony charge. Compare Goldberg v. Kelly, 397 U. S., at 270-271, with Gideon v. Wainwright, 372 U. S. 335 (1963). Clearly, however, the inquiry into fault or liability requisite to afford the licensee due process need not take the form of a full adjudication of the question of liability. That adjudication can only be made in litigation between the parties involved in the accident. Since the only purpose of the provisions before us is to obtain security from which to pay any judgments against the licensee resulting from the accident, we hold that procedural due process will be satisfied by an inquiry limited to the determination whether there is a reasonable possibility, of judgments in the amounts claimed being rendered against the licensee.

The State argues that the licensee's interest in avoiding the suspension of his licenses is outweighed by countervailing governmental interests and therefore that this procedural due process need not be afforded him. We disagree. In cases where there is no reasonable possibility of a judgment being rendered against a licensee, Georgia’s interest in protecting a claimant from the possibility of an unrecoverable judgment is not, within the context of the State's fault-oriented scheme, a justification for denying the process due its citizens. Nor is additional expense occasioned by the expanded hearing sufficient to withstand the constitutional requirement. “ 'While the problem of additional expense must be kept in mind, it does not justify denying a hearing meeting the ordinary standards of due process.’ ” Goldberg v. Kelly, 397 U. S., at 261, quoting Kelly v. Wyman, 294 F. Supp. 893, 901 (SDNY 1968).

The main thrust of Georgia’s argument is that it need not provide a hearing on liability because fault and liability are irrelevant to the statutory scheme. We may assume that were this so, the prior administrative hearing presently provided by the State would be “appropriate to the nature of the case.” Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 313 (1950). But “[i]n reviewing state action in this area . . . we look to substance, not to bare form, to determine whether constitutional minimums have been honored.” Willner v. Committee on Character, 373 U. S. 96, 106-107 (1963) (concurring opinion). And looking to the operation of the State’s statutory scheme, it is clear that liability, in the sense of an ultimate judicial determination of responsibility, plays a crucial role in the Safety Responsibility Act. If prior to suspension there is a release from liability executed by the injured party, no suspension is worked by the Act. Ga. Code Ann. § 92A-606 (1958). The same is true if prior to suspension there is an adjudication of nonliability. Ibid. Even after suspension has been declared, a release from liability or an adjudication of nonliability will lift the suspension. Ga. Code Ann. § 92A-607 (Supp. 1970). Moreover, other of the Act’s exceptions are developed around liability-related concepts. Thus, we are not dealing here with a no-fault scheme. Since the statutory scheme makes liability an important factor in the State’s determination to deprive an individual of his licenses, the State may not, consistently with due process, eliminate consideration of that factor in its prior hearing.

The hearing required by the Due Process Clause must be “meaningful,” Armstrong v. Manzo, 380 U. S. 545, 552 (1965), and “appropriate to the nature of the case.” Mullane v. Central Hanover Bank & Trust Co., supra, at 313. It is a proposition which hardly seems to need explication that a hearing which excludes consideration of an element essential to the decision whether licenses of the nature here involved shall be suspended does not meet this standard.

Finally, we reject Georgia’s argument that if it must afford the licensee an inquiry into the question of liability, that determination, unlike the determination of the matters presently considered at the administrative hearing, need not be made prior to the suspension of the licenses. While “[m]any controversies have raged about . . . the Due Process Clause,” ibid., it is fundamental that except in emergency situations (and this is not one) due process requires that when a State seeks to terminate an interest such as that here involved, it must afford “notice and opportunity for hearing appropriate to the nature of the case” before the termination becomes effective. Ibid. Opp Cotton Mills v. Administrator, 312 U. S., at 152-156; Sniadach v. Family Finance Corp., supra; Goldberg v. Kelly, supra; Wisconsin v. Constantineau, 400 U. S. 433 (1971).

We hold, then, that under Georgia’s present statutory scheme, before the State may deprive petitioner of his driver’s license and vehicle registration it must provide a forum for the determination of the question whether there is a reasonable possibility of a judgment being rendered against him as a result of the accident. We deem it inappropriate in this case to do more than lay down this requirement. The alternative methods of compliance are several. Georgia may decide merely to include consideration of the question at the administrative hearing now provided, or it may elect to postpone such a consideration to the de novo judicial proceedings in the Superior Court. Georgia may decide to withhold suspension until adjudication of an action for damages brought by the injured party. Indeed, Georgia may elect to abandon its present scheme completely and pursue one of the various alternatives in force in other States. Finally, Georgia may reject all of the above and devise an entirely new regulatory scheme. The area of choice is wide: we hold only that the failure of the present Georgia scheme to afford the petitioner a prior hearing on liability of the nature we have defined denied him procedural due process in violation of the Fourteenth Amendment.

The judgment is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

The Chief Justice, Mr. Justice Black, and Mr. Justice Blackmun concur in the result.

       Motor Vehicle Safety Responsibility Act, Ga. Code Ann. § 92A-601 et seq. (1958). In pertinent part the Act provides that anyone involved in an accident must submit a report to the Director of Public Safety. Ga. Code Ann. § 92A-604 (Supp. 1970). Within 30 days of the receipt of the report the Director “shall suspend the license and all registration certificates and all registration plates of the operator and owner of any motor vehicle in any manner involved in the accident unless or until the operator or owner has previously furnished or immediately furnishes security, sufficient ... to satisfy any judgments for damages or injuries resulting . . . and unless such operator or owner shall give proof of financial responsibility for the future as is required in section 92A-615.1. . . Ga. Code Ann. § 92A-605 (a) (Supp. 1970). Section 92A-615.1 (Supp. 1970) requires that “such proof must be maintained for a one-year period.” Section 92A-605 (a) works no suspension, however, (1) if the owner or operator had in effect at the time of the accident a liability insurance policy or other bond, Ga. Code Ann. § 92A-605 (c) (Supp. 1970); (2) if the owner or operator qualifies as a self-insurer, ibid.; (3) if only the owner or operator was injured, Ga. Code Ann. § 92A-606 (1958); (4) if the automobile was legally parked at the time of the accident, ibid.; (5) if as to an owner, the automobile was being operated without permission, ibid.; or (6) “[i]f, prior to the date that the Director would otherwise suspend license and registration ... there shall be filed with the Director evidence satisfactory to him that the person who would otherwise have to file security has been released from liability or been finally adjudicated not to be liable or has executed a duly acknowledged written agreement providing for the payment of an agreed amount in installments . . . .” Ibid.

       Questions concerning the requirement of proof of future financial responsibility are not before us. The State’s brief, at 4, states: “The one year period for proof of financial responsibility has now expired, so [petitioner] would not be required to file such proof, even if the Court of Appeals decision were affirmed.”

      Ga. Code Ann. § 92A-602 (1958) provides:
      “The Director shall administer and enforce the provisions of this Chapter and may make rules and regulations necessary for its administration and shall provide for hearings upon request of persons aggrieved by orders or acts of the Director under the provisions of this Chapter. Such hearing need not be a matter of record and the decision as rendered by the Director shall be final unless the aggrieved person shall desire an appeal, in which case he shall have the right to enter an appeal to the superior court of the county of his residence, by notice to the Director, in the same manner as appeals are entered from the court of ordinary, except that the appellant shall not be required to post any bond nor pay the costs in advance. If the aggrieved person desires, the appeal may be heard by the judge at term or in chambers or before a jury at the first term. The hearing on the appeal shall be de novo, however, such appeal shall not act as a supersedeas of any orders or acts of the Director, nor shall the appellant be allowed to operate or permit a motor vehicle to be operated in violation of any suspension or revocation by the Director, while such appeal is pending. A notice sent by registered mail shall be sufficient service on the Director that such appeal has been entered.”

       Petitioner stated at oral argument that while “it would be possible to raise [an equal protection argument] ... we don’t raise this point here.” Tr. of Oral Arg. 14.

       See, e. g., Fahey v. Mallonee, 332 U. S. 245 (1947); Ewing v. Mytinger & Casselberry, 339 U. S. 594 (1950).

       The various alternatives include compulsory insurance plans, public or joint public-private unsatisfied judgment funds, and assigned claims plans. See R. Keeton & J. O’Connell, After Cars Crash (1967).


author: Per Curiam. Mr. Justice Stewart,

text:
    PALMER v. CITY OF EUCLID, OHIO
    No. 143.
    Argued January 11, 1971
    Decided May 24, 1971

      Niki Z. Schwartz argued the cause for appellant. With him on the brief was Joshua J. Kancelbaum.

      David J. Lombardo argued the cause for appellee. With him on the brief was William T. Monroe.

   Per Curiam.

Appellant Palmer was convicted by a jury of violating the City of Euclid’s “suspicious person ordinance,” that is, of being

“[a]ny person who wanders about the streets or other public ways or who is found abroad at late or unusual hours in the night without any visible or lawful business and who does not give satisfactory account of himself.”

He was fined $50 and sentenced to 30 days in jail. The County Court of Appeals affirmed the judgment and appeal to the Supreme Court of Ohio was dismissed “for the reason that no substantial constitutional question exists herein.” We noted probable jurisdiction. 397 U. S. 1073 (1970).

We reverse the judgment against Palmer because the ordinance is so vague and lacking in ascertainable standards of guilt that, as applied to Palmer, it failed to give “a person of ordinary intelligence fair notice that his contemplated conduct is forbidden . . . United States v. Harriss, 347 U. S. 612, 617 (1954).

The elements of the crime defined by the ordinance apparently are (1) wandering about the streets or being abroad at late or unusual hours; (2) being at the time without visible or lawful business; and (3) failing to give a satisfactory explanation for his presence on the streets. Palmer, in his car, was seen late at night in a parking lot. A female left his car and entered by the front door an adjoining apartment house. Palmer then pulled onto the street, parked with his lights on, and used a two-way radio. He was not armed. He said he had just let off a friend. He was then arrested. At the station he gave three different addresses for himself and said he did not know his friend’s name or where she was going when she left his car. Palmer could reasonably be charged with knowing that he was on the streets at a late or unusual hour and that denying knowledge of his friend’s identity and claiming multiple addresses amounted to an unsatisfactory explanation under the ordinance. But in our view the ordinance gave insufficient notice to the average person that discharging a friend at an apartment house and then talking on a car radio while parked on the street was enough to show him to be “without any visible or lawful business.” Insofar as this record reveals, everything appellant did was quite visible and there is no suggestion whatsoever that what he did was unlawful under local, state, or federal law. If his conduct nevertheless satisfied the being-without-visible-or-lawful-business element of the ordinance, as the state courts must have held, it is quite unreasonable in our view to charge him with notice that such would be the construction of the ordinance. “The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.” United States v. Harriss, supra, at 617; Bouie v. Columbia, 378 U. S. 347 (1964); Wright v. Georgia, 373 U. S. 284 (1963).

The judgment of the Supreme Court of Ohio is reversed.

It is so ordered.

Mr. Justice Harlan concurs in the result.

Mr. Justice Stewart,

with whom Mr. Justice Douglas joins,

concurring.

While I agree with the Court that Euclid’s “suspicious person ordinance” is unconstitutional as applied to the appellant, I would go further and hold that the ordinance is unconstitutionally vague on its face.

A policeman has a duty to investigate suspicious circumstances, and the circumstance of a person wandering the streets late at night without apparent lawful business may often present the occasion for police inquiry. But in my view government does not have constitutional power to make that circumstance, without more, a criminal offense.

      The ordinance seemingly requires a “business” purpose to be on the streets. But it seems irrational to construe the ordinance as permitting only visible and lawful commercial activities on the streets, thus in effect converting the ordinance into a curfew with exceptions for lawful commercial conduct. Neither the lower court nor appellee city suggests that the ordinance should be construed in this manner or that anyone would expect that it would be so construed.


author: Per Curiam.

text:
    BOSTIC v. UNITED STATES
    No. 5250.
    Argued April 21, 1971
    Decided May 24, 1971

      Thomas C. Binkley argued the cause for petitioner. With him on the brief was Philip M. Carden.

      Beatrice Rosenberg argued the cause for the United States. With her on the brief were Solicitor General Griswold, Assistant Attorney General Wilson, and Jerome M. Feit.

   Per Curiam.

We granted the writ of certiorari in this case to consider whether the Court of Appeals for the Sixth Circuit had erred in holding that the petitioner had properly been convicted of conspiracy to commit murder in order to avoid apprehension for the robbery of a federally insured bank. The Court of Appeals purported to uphold a conviction for this offense, though there was no evidence that the petitioner knew of the plan to commit murder, and he had been confined in prison for several months prior to the date the murder was committed. The memorandum for the United States in opposition to the granting of the writ urged that the petitioner was “responsible for the actions of his co-conspirators in killing one member of the group/’ and as to this issue, relied on the opinion of the Court of Appeals.

It now appears that these statements in the opinion of the Court of Appeals and in the memorandum of the United States were erroneous, and that the facts are not as we believed them to be at the time we granted the writ. The record shows that the petitioner was neither charged with nor convicted of the offense of conspiracy to commit murder. The conspiracy count on which the petitioner was convicted did not include any charge of conspiracy to murder. Indeed, in his closing argument to the jury the prosecutor stated that the petitioner had left the conspiracy prior to the murder, when he was returned to the penitentiary.

Inasmuch as our grant of the writ of certiorari in this case was predicated on the mistaken representation that the petitioner had been convicted of the offense of conspiracy to commit murder, we now dismiss the writ as improvidently granted.

It is so ordered.

       400 U. S. 991.

       424 F. 2d 951. The opinion recites that the conspiracy count on which the petitioner was convicted “alleged a conspiracy to rob federally insured banks with dangerous weapons and to commit murder to avoid apprehension for same.” 424 F. 2d, at 953. The court went on to say, “As to Bostic, although he had been returned to the penitentiary sometime before Ferguson’s murder, there is no evidence that he had renounced or withdrawn from the conspiracy.” 424 F. 2d, at 964.


author: Mr. Justice Douglas

text:
    UNITED STATES v. GREATER BUFFALO PRESS, INC., et al.
    No. 821.
    Argued April 19, 1971
    Decided June 1, 1971

      Douglas, J., delivered the opinion for a unanimous Court.

      Deputy Solicitor General Friedman argued the cause for the United States. With him on the brief were Solicitor General Griswold, Assistant Attorney General McLaren, Samuel Huntington, Lee A. Rau, and Elliott H. Feldman.

      Frank G. Raichle argued the cause and filed a brief for appellees.
   Mr. Justice Douglas

delivered the opinion of the Court.

This is a civil antitrust case brought by the United States charging a violation of § 7 of the Clayton Act, as amended, 64 Stat. 1125, 15 U. S. C. § 18. The main thrust of the case involves the acquisition by Greater Buffalo Press, Inc. (Greater Buffalo), of all the stock of International Color Printing Co. (International). The complaint, at the secondary level, charged that Greater Buffalo, Hearst Corp., through its unincorporated division King Features Syndicate (King), Newspaper Enterprise Association, Inc. (NEA), and others had conspired to restrain the sale to newspapers of the printing of comic supplements in violation of § 1 of the Sherman Act, as amended, 26 Stat. 209, 15 U. S. C. § 1. It also charged that Hearst and NEA were violators of certain tying arrangements involving the licensing of comic features and the sale of comic supplements.

Before trial a consent decree was entered against Hearst, enjoining King from entering into any agreement limiting competition in the printing of color comic supplements and barring any tying arrangement.

After full trial the District Court dismissed the complaint. The case came here under § 2 of the Expediting Act, as amended, 32 Stat. 823, 15 U. S. C. § 29. We noted probable jurisdiction, 400 U. S. 990. We reverse the judgment below.

The case involves the comic supplement business used weekends by most newspapers. Some papers print their own comic supplements; others purchase them.

Greater Buffalo prints color supplements for newspapers and sells them.

International prints color comic supplements for King only.

Most color comic supplements are printed by companies like Greater Buffalo and sold to newspapers. But individual newspapers contract for the purchase of comic features and it is those comics that Greater Buffalo prints for the particular papers.

The most popular comic features used by major metropolitan papers are controlled by King.

Greater Buffalo has no control over the ownership of features and therefore does not license them. As noted, however, King is a licensor; and moreover, it prints “ready-print” supplements which are preprinted and supplied to many newspapers only with masthead change.

The District Court declared that the acquisition of International by Greater Buffalo has not, and will not, result in a substantial lessening of competition in the color comic supplement industry, and therefore did not constitute a violation of § 7 of the Clayton Act.

The basic error of the District Court, in our view, was in its finding that the significant lines of commerce involved in this action should be divided into “two distinct and separate categories: (1) the printing of color comic supplements for newspapers which do not print their own, and (2) the printing of color comic supplements for syndicates engaged in the sale of copyrighted comic features to newspapers. These are the lines of commerce — to treat them together as one line of commerce, i. e., the printing and sale of color comic supplements, would be to ignore the tremendous leverage of the syndicates which control the copyrighted features.”

As we read the record, the printing of color comic supplements and their sale are component parts of the color comic supplement printing business. One firm or company may both print and sell; another may print yet sell through a third organization, as does International through King. The “area of effective competition,” Standard Oil Co. v. United States, 337 U. S. 293, 299-300 n. 5, comprises the business of Greater Buffalo, International, and King. There may be submarkets within this broad market for antitrust purposes (Brown Shoe Co. v. United States, 370 U. S. 294, 325), but, as we said in United States v. Pkillipsburg National Bank, 399 U. S. 350, 360, “submarkets are not a basis for the disregard of a broader line of commerce that has economic significance.”

The District Court, proceeding from its premise as to the relevant market, analyzed the effects on the competition between Greater Buffalo and International resulting from the purchase of the stock of the latter. The true import would include not only that but also the effect on competition of the alliance with King, through the acquisition of King’s client, International. The three of them were engaged in the single line of commerce consisting of the printing and distribution of color comic supplements. The printing of color comics is the same no matter for whom it is done or through whom they are distributed. The combination of those who print and sell comic supplements with those who sell comic supplements printed by others fastens more tightly the hold of the group on the side of supplement printing business. As a result of the acquisition, King has become dependent on Greater Buffalo for most of the printing which it sells in competition with Greater Buffalo. Greater Buffalo, it is said, had no long-term contract for King’s business following the acquisition. Yet it had the almost certain right to print for King, its principal selling competitor, and a 10-year contract was entered into in the summer after the acquisition. There is evidence that Greater Buffalo has taken accounts from King since the acquisition. But existing competition between them is naturally restricted to sales at a price higher than Greater Buffalo charges King for printing; and it is not that fuller competition that could exist if King had an independent printing source.

King’s executive officer proposed, after the stock acquisition of International, that King acquire its own color supplement printing capacity.

“Even if it cost money to do this and diminished profits, wouldn’t that be better than the eventual loss of most, if not all, of our readyprint business?
“The Syndicate which for more than a quarter of a century has been number one in the readyprint field is now at best number two, and quite helpless. Newspaper history clearly emphasizes the difficulty, in fact hopelessness of regaining a lost position. There is plenty of current evidence to substantiate this.
“If Koessler [head of Greater Buffalo], because of what he has done the past few years, were to be attacked, in my opinion he would lose, but there is the danger, I suppose, of our becoming an accessory. Here is another reason why I think that if we were in the readyprint field with plants of our own it would restore a competitive aspect and certainly that wouldn’t be discouraged in Washington.”

Prior to the acquisition, King put pressure on International to construct a southern plant to meet Greater Buffalo’s proposed expansion there. Prior to the acquisition King also induced International to cut its price to meet competition and actually transferred a few contracts from International to Greater Buffalo because of prices.

Those practices ceased after the acquisition. Greater Buffalo acquired control of about 75% of independent color comic supplement printing, leaving King no reliable alternative supply. Greater Buffalo and International which had been competitors ceased to be such. The threat that newspaper customers will do their own printing is of course a factor in the competitive situation. But, according to the record, color comic supplement printing requires exacting mechanical techniques performed by specially trained personnel, and independent printers specializing in supplement printing and handling a high volume of business can produce a high quality product more economically than most newspapers.

The test of § 7 is whether the effect of an acquisition “may be substantially to lessen competition.” The concentration of 75% of the independent color comic supplement printing business in one firm points firmly to the conclusion that the difficulties of new entrants becoming real competitors of Greater Buffalo are greatly increased.

We also disagree with the District Court that the acquisition of International by Greater Buffalo was within the “failing company” exception to § 7 of the Clayton Act.

That test is met only if two requirements are satisfied: (1) that the resources of International were “so depleted and the prospect of rehabilitation so remote that it faced the grave probability of a business failure . . . ,” International Shoe Co. v. Federal Trade Comm’n, 280 U. S. 291, 302, and (2) that there was no other prospective purchaser for it. Citizen Publishing Co. v. United States, 394 U. S. 131, 138.

It is true that its owners wished to sell rather than raise the capital needed for modernization and expansion, and that King, its sole customer, was threatening to place some of its business elsewhere. Yet King had not threatened to invoke, nor had it invoked, the six-month cancellation provision in the contract. Its expansion plans were being actively pursued and it continued to pay dividends to its owners. Indeed in the year of the sale it had shown a substantial increase in profits.

Moreover, only King and Greater Buffalo were considered as prospective purchasers; the numerous other smaller color comic supplement printers were never even approached.

Since the District Court found no violation of § 7, it naturally did not reach the question of remedy though it said that if there were a violation, it would not warrant “a court’s exercising its discretion to order a divestiture fifteen years after the occurrence of the alleged illegal conduct.” That is not the law; the passage of time per se is no barrier to divestiture of stock illegally acquired. United States v. Du Pont, 353 U. S. 586, 590; 366 U. S. 316. Divestiture performs several functions, the foremost being the liquidation of the illegally acquired market power. Schine Chain Theatres v. United States, 334 U. S. 110, 127-129.

We do not, however, reach the question of divestiture. A majority of the Court is of the view that the nature of the decree to be fashioned should be initially considered by the District Court. In that connection two additional questions will need to be passed on by the District Court.

First is the question of the consent decree entered with Hearst. As to it the District Court said: “King Features may continue to engage in the practice of combining the sale of features and printing until the court shall determine the antitrust issue as to Greater Buffalo. The decree also provided that Hearst shall obey the antitrust laws during the pendency of the action.”

We do not have enough information about the consent decree and its operation and the related facts to know how it should now be integrated into a decree.

Second. In the fifties Greater Buffalo erected a printing plant at Lufkin, Texas, to improve its market in that area by saving transportation costs. There is some evidence that in 1950 Greater Buffalo made a moral commitment to certain newspapers to build a plant in the Deep South. A plant was constructed at Sylacauga, Alabama, after the acquisition of International.

There are cross-currents in the record which suggest that the Sylacauga plant was the product of International’s wishes, rather than Greater Buffalo’s, and that the primary motive for Greater Buffalo’s acquisition of International stock was to eliminate International’s planned expansion in the South as a competitive threat.

The status of the Sylacauga plant is a matter to be considered by the District Court under the controlling precedents. See, e. g., United States v. Aluminum Co. of America, 247 F. Supp. 308, aff’d, 382 U. S. 12.

The judgment is reversed and the cause remanded for the drafting of a decree and the making of such additional findings both as respects the consent decree and the Sylacauga plant as may be appropriate or necessary for an effective remedy.

Reversed and remanded.

       Section 7 provides in part:
      “That no corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital and no corporation subject to the jurisdiction of the Federal Trade Commission shall acquire the whole or any part of the assets of another corporation engaged also in commerce, where in any line of commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.”

       A monopolization charge against Greater Buffalo was eliminated by an amended complaint.

       The United States did not appeal from the dismissal against NEA.


author: Mr. Justice Douglas Mr. Justice Stewart,

text:
    UNITED STATES v. INTERNATIONAL MINERALS & CHEMICAL CORP.
    No. 557.
    Argued April 26, 1971
    Decided June 1, 1971
    Douglas, J., delivered the opinion of the Court, in which Burger, C. J., and Black, White, Marshall, and Blackmun, JJ., joined. Stewart, J., filed a dissenting opinion, in which HarlaN and Bren-NAN, JJ., joined, post, p. 565.

      John F. Dienelt argued the cause for the United States pro hac vice. With him on the briefs were Solicitor General Griswold, Assistant Attorney General Wilson, and Beatrice Rosenberg.

      Harold E. Spencer argued the cause for appellee. With him on the brief was Charles J. McCarthy.

   Mr. Justice Douglas

delivered the opinion of the Court.

The information charged that appellee shipped sulfuric acid and hydrofluosilicic acid in interstate commerce and “did knowingly fail to show on the shipping papers the required classification of said property, to wit, Corrosive Liquid, in violation of 49 C. P. R. 173.427.”

Title 18 U. S. C. § 834 (a) gives the Interstate Commerce Commission power to “formulate regulations for the safe transportation” of “corrosive liquids” and 18 U. S. C. § 834 (f) states that whoever “knowingly violates any such regulation” shall be fined or imprisoned.

Pursuant to the power granted by § 834 (a) the regulatory agency promulgated the regulation already cited which reads in part:

“Each shipper offering for transportation any hazardous material subject to the regulations in this chapter, shall describe that article on the shipping paper by the shipping name prescribed in § 172.5 of this chapter and by the classification prescribed in § 172.4 of this chapter, and may add a further description not inconsistent therewith. Abbreviations must not be used.” 49 CFR § 173.427.

The District Court, relying primarily on Boyce Motor Lines, Inc. v. United States, 342 U. S, 337, ruled that the information did not charge a “knowing violation” of the regulation and accordingly dismissed the information.

The United States filed a notice of appeal to the Court of Appeals, 18 U. S. C. § 3731, and in reliance on that section later moved to certify the case to this Court which the Court of Appeals did; and we noted probable jurisdiction, 400 U. S. 990.

Here as in United States v. Freed, 401 U. S. 601, which dealt with the possession of hand grenades, strict or absolute liability is not imposed; knowledge of the shipment of the dangerous materials is required. The sole and narrow question is whether “knowledge” of the regulation is also required. It is in that narrow zone that the issue of “mens rea” is raised; and appellee bears down hard on the provision in 18 U. S. C. § 834 (f) that whoever “knowingly violates any such regulation” shall be fined, etc.

Boyce Motor Lines, Inc. v. United States, supra, on which the District Court relied, is not dispositive of the issue. It involved a regulation governing transporting explosives, inflammable liquids, and the like and required drivers to “avoid, so far as practicable, and, where feasible, by prearrangement of routes, driving into or through congested thoroughfares, places where crowds are assembled, street car tracks, tunnels, viaducts, and dangerous crossings.” The statute punished whoever “knowingly” violated the regulation. Id., at 339. The issue of “mens rea” was not raised below, the sole question turning on whether the standard of guilt was unconstitutionally vague. Id., at 340. In holding the statute was not void for vagueness we said:

“The statute punishes only those who knowingly violate the Regulation. This requirement of the presence of culpable intent as a necessary element of the offense does much to destroy any force in the argument that application of the Regulation would be so unfair that it must be held invalid. That is evident from a consideration of the effect of the requirement in this case. To sustain a conviction, the Government not only must prove that petitioner could have taken another route which was both commercially practicable and appreciably safer (in its avoidance of crowded thoroughfares, etc.) than the one it did follow. It must also be shown that petitioner knew that there was such a practicable, safer route and yet deliberately took the more dangerous route through the tunnel, or that petitioner willfully neglected to exercise its duty under the Regulation to inquire into the availability of such an alternative route.
“In an effort to give point to its argument, petitioner asserts that there was no practicable route its trucks might have followed which did not pass through places they were required to avoid. If it is true that in the congestion surrounding the lower Hudson there was no practicable way of crossing the River which would have avoided such points of danger to a substantially greater extent than the route taken, then petitioner has not violated the Regulation. But that is plainly a matter for proof at the trial. We are not so conversant with all the routes in that area that we may, with no facts in the record before us, assume the allegations of the indictment to be false. We will not thus distort the judicial notice concept to strike down a regulation adopted only after much consultation with those affected and penalizing only those who knowingly violate its prohibition.” Id., at 342-343.

The “mens rea” that emerged in the foregoing discussion was not knowledge of the regulation but knowledge of the safer routes and those that were less safe within the meaning of the regulation. Mr. Justice Jackson, writing in dissent for himself, Mr. Justice Black, and Mr. Justice Frankfurter, correctly said:

“I do not suppose the Court intends to suggest that if petitioner knew nothing of the existence of such a regulation its ignorance would constitute a defense.” 342 U. S., at 345.

There is no issue in the present case of the propriety of the delegation of the power to establish regulations and of the validity of the regulation at issue. We therefore see no reason why the word “regulations” should not be construed as a shorthand designation for specific acts or omissions which violate the Act. The Act, so viewed, does not signal an exception to the rule that ignorance of the law is no excuse and is wholly consistent with the legislative history.

The failure to change the language in § 834 in 1960 should not lead to a contrary conclusion. The Senate approved an amendment deleting “knowingly” and substituting therefor the language “being aware that the Interstate Commerce Commission has formulated regulations for the safe transportation of explosives and other dangerous articles.” But the House refused to agree. As the House Committee stated, its version would “retain the present law by providing that a person must ‘knowingly’ violate the regulations.”

The House Committee noted there was a “judicial pronouncement as to the standards of conduct that make a violation a ‘knowing’ violation.” In St. Johnsbury Trucking Co. v. United States, 220 F. 2d 393, 397, Chief Judge Magruder had concluded that knowledge of the regulations was necessary. But whether the House Committee was referring to Boyce Motor Lines or the opinion of Chief Judge Magruder is not clear since both views of the section were before Congress. It is clear that strict liability was not intended. The Senate Committee felt it would be too stringent and thus rejected the position of the Interstate Commerce Commission. But despite protestations of avoiding strict liability the Senate version was very likely to result in strict liability because knowledge of the facts would have been unnecessary and anyone involved in the business of shipping dangerous materials would very likely know of the regulations involved. Thus in rejecting the Senate version the House was rejecting strict liability. But it is too much to conclude that in rejecting strict liability the House was also carving out an exception to the general rule that ignorance of the law is no excuse.

The principle that ignorance of the law is no defense applies whether the law be a statute or a duly promulgated and published regulation. In the context of these proposed 1960 amendments we decline to attribute to Congress the inaccurate view that that Act requires proof of knowledge of the law, as well as the facts, and that it intended to endorse that interpretation by retaining the word “knowingly.” We conclude that the meager legislative history of the 1960 amendments makes unwarranted the conclusion that Congress abandoned the' general rule and required knowledge of both the facts and the pertinent law before a criminal conviction could be sustained under this Act.

So far as possession, say, of sulfuric acid is concerned the requirement of “mens rea” has been made a requirement of the Act as evidenced by the use of the word “knowingly.” A person thinking in good faith that he was shipping distilled water when in fact he was shipping some dangerous acid would not be covered. As stated in Morissette v. United States, 342 U. S. 246, 250:

“The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.”

There is leeway for the exercise of congressional discretion in applying the reach of “mens rea.” United States v. Balint, 258 U. S. 250. United States v. Murdock, 290 U. S. 389, closely confined the word “willfully” in the income tax law to include a purpose to bring about the forbidden result:

“He whose conduct is defined as criminal is one who ‘willfully’ fails to pay the tax, to make a return, to keep the required records, or to supply the needed information. Congress did not intend that a person, by reason of a bona fide misunderstanding as to his liability for the tax, as to his duty to make a return, or as to the adequacy of the records he maintained, should become a criminal by his mere failure to measure up to the prescribed standard of conduct. And the requirement that the omission in these instances, must be willful, to be criminal, is persuasive that the same element is essential to the offense of failing to supply information.” Id., at 396.

In Balint the Court was dealing with drugs, in Freed with hand grenades, in this case with sulfuric and other dangerous acids. Pencils, dental floss, paper clips may also be regulated. But they may be the type of products which might raise substantial due process questions if Congress did not require, as in Murdock, “mens rea” as to each ingredient of the offense. But where, as here and as in Balint and Freedl, dangerous or deleterious devices or products or obnoxious waste materials are involved, the probability of regulation is so great that anyone who is aware that he is in possession of them or dealing with them must be presumed to be aware of the regulation.

Reversed.

Mr. Justice Stewart,

with whom Mr. Justice Harlan and Mr. Justice Brennan join, dissenting.

This case stirs large questions — questions that go to the moral foundations of the criminal law. Whether postulated as a problem of “mens rea,” of “willfulness,” of “criminal responsibility,” or of “scienter,” the infliction of criminal punishment upon the unaware has long troubled the fair administration of justice. See, e. g., Morissette v. United States, 342 U. S. 246; Lambert v. California, 355 U. S. 225; Scales v. United States, 367 U. S. 203. Cf. Durham v. United States, 214 F. 2d 862. But there is no occasion here for involvement with this root problem of criminal jurisprudence, for it is evident to me that Congress made punishable only knowing violations of the regulation in question. That is what the law quite clearly says, what the federal courts have held, and what the legislative history confirms.

The statutory language is hardly complex. Section 834 (a) of Title 18, U. S. C., gives the regulatory agency power to “formulate regulations for the safe transportation” of, among other things, “corrosive liquids.” Section 834 (f) provides that “[w]hoever knowingly violates any such regulation shall be fined not more than $1,000 or imprisoned not more than one year, or both.” In dismissing the information in this case because it did not charge the appellee shipper with knowing violation of the applicable labeling regulation, District Judge Porter did no more than give effect to the ordinary meaning of the English language.

It is true, as the Court today points out, that the issue now before us was not directly involved in Boyce Motor Lines, Inc. v. United States, 342 U. S. 337, which dealt with a claim that the statute is unconstitutionally vague. But in holding the statute valid, the Court bottomed its reasoning upon the proposition that “the presence of culpable intent [is] a necessary element of the offense.” Id., at 342. Other federal courts, faced with the precise issue here presented, have held that the statute means exactly what it says — that the words “knowingly violates any such regulation” mean no more and no less than “knowingly violates any such regulation.” St. Johnsbury Trucking Co. v. United States, 220 F. 2d 393 (CA1 1955); United States v. Chicago Express, 235 F. 2d 785 (CA7 1956). Chief Judge Magruder filed a concurring opinion in the St. Johnsbury case, and he put the matter thus:

“If it be thought that the indicated requirement of proof will seriously hamper effective enforcement of the Interstate Commerce Commission regulations, the answer is that Congress is at liberty to fix that up by striking out . . . the prescribed element of mens rea — 'knowingly'—as applied to violation of regulations of the sort here involved. . . .
“If a statute provides that it shall be an offense 'knowingly' to sell adulterated milk, the offense is complete if the defendant sells what he knows to be adulterated milk, even though he does not know of the existence of the criminal statute, on the time-honored principle of the criminal law that ignorance of the law is no excuse. But where a statute provides, as does 18 U. S. C. § 835, that whoever knowingly violates a regulation of the Interstate Commerce Commission shall be guilty of an offense, it would seem that a person could not knowingly violate a regulation unless he knows of the terms of the regulation and knows that what he is doing is contrary to the regulation. Here again the definition of the offense is within the control and discretion of the legislature.” Id., at 398.

In 1960 these judicial decisions were brought to the attention of the appropriate committees of Congress by the Interstate Commerce Commission, which asked Congress to overcome their impact by amending the law, either by simply deleting the word “knowingly” or, alternatively, by substituting therefor the words “being aware that the Interstate Commerce Commission has formulated regulations for the safe transportation of explosives and other dangerous articles.” The Senate passed a bill adopting the second alternative, based on a committee report that stated:

“Prosecution for violations of the Commission’s transportation of explosives regulations has been extremely difficult because of the requirement in section 835 of the act that violators must have knowledge that they violated the Commission’s regulations. While the committee believes that every reasonable precaution should be taken to provide for punishing those violating a statute whose purpose is to promote safety, the creation of an absolute liability is deemed too stringent.”

The House, however, refused to accept the Senate’s language and resubstituted the word “knowingly,” its committee report stating:

“The present Transportation and Explosives Act requires that a violation ‘knowingly’ be committed before penalty may be inflicted for such violation. Under the present law there is judicial pronouncement as to the standards of conduct that make a violation a 'knowing’ violation. The instant bill would change substantially the quantum of proof necessary to prove a violation since it provides that ‘any person who being aware that the Interstate Commerce Commission has formulated regulations for the safe transportation of explosives and other dangerous articles’ is guilty if there is a noncompliance with the regulations. Such language may well create an almost absolute liability for violation. . . . Since the penalties prescribed for violation of the Explosives Act are substantial and since proof required to sustain a charge of violation of such regulations under the bill would require little more than proof that the violation occurred, it is the considered opinion of the committee that such a substantial departure in present law is not warranted. It is the purpose of this amendment to retain the present law by providing that a person must ‘knowingly’ violate the regulations.”

Three days later the Senate agreed to the resubstitution of the word “knowingly” by passing the House version of the bill.

The Court today thus grants to the Executive Branch what Congress explicitly refused to grant in 1960. It effectively deletes the word “knowingly” from the law. I cannot join the Court in this exercise, requiring as it does such a total disregard of plain statutory language, established judicial precedent, and explicit legislative history.

A final word is in order. Today’s decision will have little practical impact upon the prosecution of interstate motor carriers or institutional shippers. For interstate motor carriers are members of a regulated industry, and their officers, agents, and employees are required by law to be conversant with the regulations in question. As a practical matter, therefore, they are under a species of absolute liability for violation of the regulations despite the “knowingly” requirement. This, no doubt, is as Congress intended it to be. Cf. United States v. Dotterweich, 320 U. S. 277; United States v. Balint, 258 U. S. 250. Likewise, prosecution of regular shippers for violations of the regulations could hardly be impeded by the “knowingly” requirement, for triers of fact would have no difficulty whatever in inferring knowledge on the part of those whose business it is to know, despite their protestations to the contrary. The only real impact of this decision will be upon the casual shipper, who might be any man, woman, or child in the Nation. A person who had never heard of the regulation might make a single shipment of an article covered by it in the course of a lifetime. It would be wholly natural for him to assume that he could deliver the article to the common carrier and depend upon the carrier to see that it was properly labeled and that the shipping papers were in order. Yet today’s decision holds that a person who does just that is guilty of a criminal offense punishable by a year in prison. This seems to me a perversion of the purpose of criminal law.

I respectfully dissent from the opinion and judgment of the Court.

       The regulatory authority originally granted the Interstate Commerce Commission was transferred to the Department of Transportation by 80 Stat. 939, 49 U. S. C. § 1655 (e) (1964 ed., Supp. V).

       See H. R. Rep. No. 1975, 86th Cong., 2d Sess., 10-11.

        Id., at 2.

        Ibid.

       See the HEW Staff Memorandum, id., at 16-19.

       S. Rep. No. 901, 86th Cong., 1st Sess., 3.

       The Senate language might “well create an almost absolute liability for violation.” H. R. Rep. No. 1975, supra, at 2.

       See H. R. Rep. No. 1975, 86th Cong., 2d Sess., 10-11.

       S. Rep. No. 901, 86th Cong., 1st Sess., 2-3.

       H. R. Rep. No. 1975, 86th Cong., 2d Sess., 2.

       49 CFR § 397.02.