author: 'Mr. Justice Marshall Mr. Justice Harlan, Mr. Justice White, Mr. Justice Douglas,

text:
    CASE-SWAYNE CO., INC. v. SUNKIST GROWERS, INC.
    No. 66.
    Argued October 18-19, 1967.
    Decided December 18, 1967.

      William H. Henderson argued the cause for petitioner. With him on the briefs were W. Glenn Harmon and Richard A. Perkins.

      Seth M. Hufstedler argued the cause for respondent. With him on the brief were Charles E. Beardsley and Donald D. Stark.

   'Mr. Justice Marshall

delivered the opinion of the Court.

This is a treble-damage action under § 4 of the Clayton Act, 38 Stat. 731, 15 U. S. C. § 15, for alleged violations of both § 1 and § 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. §§ 1, 2. The District Court granted a directed verdict, at the close of plaintiff’s case, for the defendant, Sunkist Growers, Inc. The Court of Appeals for the Ninth Circuit reversed as to that portion of the complaint predicated on § 2 of the Sherman Act, holding that sufficient evidence was presented that Sunkist monopolized or attempted to monopolize trade in the relevant market; it affirmed as to the dismissal of the Sherman Act § 1 charge, holding that Sunkist qualified as a cooperative organization under the Capper-Volstead Act, 42 Stat. 388, 7 U. S. C. § 291, and therefore could not be held for any intraorganizational conspiracy to restrain trade. In order to determine the scope of that exemption from the antitrust laws, we granted certiorari. 387 U. S. 903 (1967).

The issue is whether Sunkist is an association of “[p]er-sons engaged in the production of agricultural products as . . . fruit growers” within the meaning of the Capper-Volstead Act, notwithstanding that certain of its members are not actually growers. We hold that it is not.

I.

The organizational structure of the Sunkist system is as follows. At the base are some 12,000 growers of citrus frpit in Arizona and California. The growers are organized into “local associations,” as they are designated in Sunkist’s bylaws, numbering approximately 160, each of which operates a packing house for the preparation of the fruit for market. The vast majority of these local associations — about 80% by number and 82% by volume of fruit marketed in the Sunkist system — are, it is stipulated, cooperative associations in which all members are fruit growers. A few of the local associations — no more than 5% by number and volume of fruit — are corporate growers whose total volume is sufficient to justify installation of their own packing house facilities.

The remainder of the local associations (also designated as “agency associations”) — about 15% by number handling about 13% of the fruit in the Sunkist system — are private corporations and partnerships, owning and operating packing houses for profit. Their relationship to the growers whose fruit they handle is defined not by a cooperative agreement but by a marketing contract, i. e., these packing houses contract with each grower to handle his fruit for cost plus a fixed fee. It is the membership of these agency associations in the Sunkist system that gives rise to the issue presented here.

The local associations, including these private packing houses, are members of “district exchanges,” nonprofit membership corporations. The principal functions of the approximately threescore district exchanges are in the marketing of the fresh fruit of their member associations; they negotiate sales, arrange for shipment, and serve as conduits of communication between the local associations and Sunkist. Representatives of the district exchanges select the board of directors of Sunkist.

Sunkist itself, since 1958, has two classes of “members”: the district exchanges, whose principal membership function is to select the board of directors, and the local associations, which vote on all other matters and which have the proprietary ownership of Sunkist’s assets. The corporate entity Sunkist Growers, Inc., owns the trade name “Sunkist” under which the fruit of its members is marketed. It has an extensive sales organization; employs marketing and traffic specialists; and performs many other services for its members through, for example, its research facilities.

More particularly, Sunkist owns processing facilities for what is known as “product” fruit, i. e., fruit that for various reasons is not sold in the fresh fruit market, but rather is used for processed fruit products such as canned or concentrated juices.

Sunkist controls approximately 70% of the oranges grown in California and Arizona, and approximately 67% of the product oranges. This control is manifested through various contractual agreements. For example, each grower in the cooperative local associations agrees that he will market all of his fruit through his association. Each grower who contracts with an agency association packing house appoints it as the marketing agent for all of his fruit. That agreement is generally for five shipping seasons, although it may be canceled at any time “by mutual consent” or on written notice by the grower during August of any year in which it is in force. An escape clause permits the grower to sell such fruit as may be “mutually agreed upon” between him and the packing house to others, if he can obtain a price higher, in the judgment of the packing house, than that which the grower would obtain through his agreement with it. Should the grower be so released from his agreement, he is to pay to the packing house $2.50 per ton of fruit released.

Each of the local associations, including the private packing house agency associations, contracts with its district exchange and with Sunkist Growers, Inc., to market all of its fruit — product and fresh — in the Sunkist system. Each association, under the Sunkist-District Exchange-Association Agreement, reserves the right to decide to what market it will ship and what price it is willing to receive for its fruit; however, Sunkist may decide to pool product fruit and fruit for export, in which event that fruit is handled solely in Sunkist’s discretion. Sunkist also determines “the maximum amount of fresh fruit to be marketed currently,” and allocates the “opportunity to ship equitably among Local Associations.” Each local association agrees not to release any of its growers from the marketing contract without notifying its district exchange and Sunkist, and must obtain the approval of both if releases total more than 5% of the volume of the particular variety of fruit handled by the association. Further, each district exchange and local association agrees that “[a] 11 prices, quotations and allowances shall be issued and distributed solely by Sunkist.”

Petitioner Case-Swayne manufactures single-strength orange juice and other blended orange juices. In its complaint, insofar as relevant to the issues here, petitioner charged that the Sunkist system was a conspiracy in restraint of trade in violation of § 1 of the Sherman Act, the effect of which was to limit sharply the supply of product citrus fruit available to petitioner during the period covered by the complaint.

II.

Section 1 of the Capper-Volstead Act (see n. 2, supra) privileges collective activity in processing and marketing on the part of “[p]ersons engaged in the production of agricultural products as farmers, planters, ranchmen, dairymen, nut or fruit growers . . . .” 42 Stat. 388, 7 U. S. C. § 291. Despite that specific language, Sunkist argues that Congress, in enacting the measure, intended to give sanction to any organizational form by which the benefits of collective marketing inured to the grower; and that, because the agency packing houses, by charging cost plus a fixed fee for their services, do not participate directly in the gain or loss involved in the collective marketing of fruit through the Sunkist system, they are in the Sunkist system a privileged form of organization for the growers who contract with them. We think that argument misconceives the requirements of the Act and runs counter to the relevant legislative history.-

Congress enacted § 6 of the Clayton Act in response to the urgings of those who felt the Sherman Act’s prohibition against combinations in restraint of trade might be applied to imperil the development of cooperative endeavors, principally unions. That section provided that the antitrust laws were not to be “construed to forbid the existence and operation of labor, agricultural, or horticultural organizations, instituted for the purposes of mutual help, and not having capital stock or conducted for profit,” i. e., such organizations were not to be deemed “illegal combinations or conspiracies in restraint of trade . . . .” 38 Stat. 731, 15 U. S. C. § 17. From the standpoint of agricultural cooperatives, the principal defect in that exemption was that it applied only to non-stock organizations. The Capper-Yolstead Act was intended to clarify the exemption for agricultural organizations and to extend it to cooperatives having capital stock.

The reports on both H. R. 13931, the predecessor bill that failed of passage, and H. R. 2373, which became the Capper-Volstead Act, state:

“Section 1 defines and limits the kind of associations to which the legislation applies. These limitations are aimed to exclude from the benefits of this legislation all but actual farmers and all associations not operated for the mutual help of their members as such producers.” (Emphasis added.) H. R. Rep. No. 24, 67th Cong., 1st Sess., 1 (1921); H. R. Rep. No. 939, 66th Cong., 2d Sess., 1 (1920).

That it was intended that only actual producers of agricultural products be covered by the legislation is demonstrated in the debates on the two bills, e. g., the following exchange involving Senator Kellogg, a principal sponsor of the measure:

“Mr. CUMMINS. . . . Are the words 'as farmers, planters, ranchmen, dairymen, nut or fruit growers’ used to exclude all others who may be engaged in the production of agricultural products, or are those words merely descriptive of the general subject?
“Mr. KELLOGG. I think they are descriptive of the general subject. I think 'farmers’ would have covered them all.
“Mr. CUMMINS. I think the Senator does not exactly catch my point. Take the flouring mills of Minneapolis: They are engaged, in a broad sense, in the production of an agricultural product. The packers are engaged, in a broad sense, in the production of an agricultural product. The Senator does not intend by this bill to confer upon them the privileges which the bill grants, I assume?
“Mr. KELLOGG. Certainly not; and I do not think a proper construction of the bill grants them any such privileges. The bill covers farmers, people who produce farm products of all kinds, and out of precaution the descriptive words were added.
“Mr. TOWNSEND. They must be persons who produce these things.
“Mr. KELLOGG. Yes; that has always been the understanding.”

To be sure, a principal concern of Congress was to prohibit the participation in the collectivity of the predatory middleman, the speculator who bought crops in the field and returned but a small percentage of their eventual worth to the grower. Sunkist focuses on the expression of that concern, urging that the agency associations are not such predatory middlemen. That focus is wide of the mark. We deal here with “special exceptions to a general legislative plan,” Allen Bradley Co. v. Local No. 3, 325 U. S. 797, 809 (1945) (§ 6 of the Clayton Act), and therefore we are not justified in expanding the Act’s coverage, which otherwise appears quite plain. The Act states those whose collective activity is privileged under it; that enumeration is limited in quite specific terms to producers of agricultural products.

Nor does the proviso in § 1 — “[t]hat such associations are operated for the mutual benefit of the members thereof” — broaden the earlier language. That provision, in conjunction with the other prerequisites for qualification under the Act — either that each member be limited to one vote without regard to the capital he furnished or that dividends on capital be limited to 8%, and that dealings in products of nonmembers be limited — was designed to insure that qualifying associations be truly organized and controlled by, and for, producers. In short, Congress was aware that even organizations of producers could serve a purpose other than the mutual obtaining of a fair return to their members, as producers, or be controlled by persons other than producers, and the proviso adds a measure of insurance that such organizations do not gain the Act’s benefits. Moreover, virtually the only mention in the legislative history of possible participation in a Capper-Volstead cooperative by nonproducers occurs with respect to cooperatives issuing capital stock. Whatever may be the effect and significance of that recognition of the financial stake of non-producers in an otherwise solely producer organization, their participation and role being narrowly restricted by the voting and dividend prerequisites of the Act, they are unpersuasive here. Capital participation by non-producers — and that is the extent to which the debates can fairly be read as contemplating their participation at all — does not directly enlarge the market share already possessed by the producers themselves. The participation in Sunkist of the agency associations has precisely that effect.

Sunkist suggests that “membership” of the agency associations has no “economic significance,” relying on that provision of the Capper-Volstead Act permitting an association to deal in the products of nonmembers. The argument is that if the agency packing houses were not members of the Sunkist system, Sunkist would still be free to handle their products. But this Court has held that the antitrust implications of the relationship between a cooperative association and others is governed by entirely different standards. “The right of . . . agricultural producers thus to unite [under the Act] . . . cannot be deemed to authorize any combination or conspiracy with other persons in restraint of trade that these producers may see fit to devise.” United States v. Borden Co., 308 U. S. 188, 204-205 (1939); accord, Maryland & Virginia Milk Producers Assn. v. United States, 362 U. S. 458, 466-467 (1960). Moreover, the agency associations participate in the control and policy making of Sunkist, even though they may be private profit-making operations. We think Congress did not intend to allow an organization with such nonproducer interests to avail itself of the Capper-Volstead exemption.

The judgment below is reversed and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Mr. Justice Harlan,

concurring in part and dissenting in part.

I agree with the Court’s holding that Congress did not intend that nonstock organizations with nonproducer members should qualify for the antitrust exemption conferred by § 1 of the Capper-Volstead Act, 7 IT. S. C. § 291, and that the Sunkist system therefore is technically not a properly constituted Capper-Volstead cooperative. However, like my Brother White, I am unable to ignore the possible effect of the Court’s holding insofar as it subjects this large agricultural organization to antitrust liability extending far beyond the confines of this suit.

There is nothing in the record to indicate that Sunkist intended to evade the mandate of the Capper-Volstead Act when it allowed privately owned “agency association” packing houses to become members of the Sunkist system. Sunkist’s only apparent motive in including the agency associations as members was to provide a greater range of packing facilities for citrus growers who desired to market through Sunkist. The agency associations have been an integral part of the Sunkist system for many years. Until the bringing of the present action, this aspect of Sunkist’s organization had apparently gone without challenge from private persons who dealt with Sunkist. Its legality never seems to have been questioned by any agency of government. Sunkist argued before us, without challenge to its sincerity, that the membership of the agency associations did not deprive it of antitrust immunity so long as all of its actions were taken for the benefit of the growers. There is no reason to doubt that this has been Sunkist’s belief through the years.

In these circumstances, it seems inequitable that the membership of the agency associations should cause Sunkist to lose all of its previously assumed immunity from liability under § 1 of the Sherman Act. This would evidently be the consequence of the Court’s holding, and if not mitigated in any way it would appear to expose Sunkist to very large liabilities. Many of the activities of a marketing organization the size of Sunkist presumably amount to restraints of trade, and under the Court’s rationale Sunkist would be subject to treble damage suits in respect of all of them. The chief result would be to allow windfall treble damage recoveries to persons with whom Sunkist dealt at arm’s length and in good faith. The main burden would ultimately fall on the growers at the base of the Sunkist organization.

1 would hold that Sunkist is not liable under § 1 of the Sherman Act for past acts merely because the agency associations participated in its government by virtue of their membership. It seems to me that this result is not only more equitable but accords better with the basic purpose of Congress, which was to aid producers, than does the Court’s holding, which burdens the growers with heavy potential liabilities. This belief is supported by the frequent reference in the congressional debates to the forerunner of this very organization as one which Congress intended by the Act to protect. Sufficient precedent for this type of equitable mitigation is found in Sunkist Growers, Inc. v. Winckler & Smith Citrus Products Co., 370 U. S. 19, in which this Court held that Sunkist’s former “tripartite” structure did not deprive it of its § 1 immunity. The Court there stated that

“To hold otherwise would be to impose grave legal consequences upon organizational distinctions that are of de minimis meaning and effect to these growers who have banded together for processing and marketing purposes within the purview of the Clayton and Capper-Volstead Acts.” Id., at 29.

The very words of Capper-Volstead § 1, however, make it clear that Congress granted antitrust immunity to agricultural cooperatives only on condition that all of the benefits of cooperative organization were received by agricultural producers. Therefore, I would also hold that Sunkist may not assert antitrust immunity if the damage complained of resulted from attempts by the agency associations to use their power within Sunkist for their own benefit as distinguished from that of the growers.

The Court holds, and, for the future, I agree, that even those organizations in which all gains are channeled to the producers may not qualify under Capper-Volstead § 1 if they have nonproducer members. Congress may have excluded nonproducers simply because it felt that the benefits to producers from nonproducer membership were outweighed by the dangers of admitting nonproducer foxes into the cooperative hen roost. However, as the Court recognizes, see ante, at 394r-395, the evident congressional concern about the possibility of monopoly by organizations immunized from antitrust prosecution by Capper-Volstead indicates that in restricting membership to producers Congress also intended to limit in a rough way the amount of market power which could be controlled by such organizations. The resources of nonproducers were to be available to the cooperatives, not through the broad avenue of membership, but by the narrower path of contract: the Act provides that qualifying organizations and their members “may make the necessary contracts and agreements” to effect the Act’s purposes. To give effect to this legislative intent, I would hold that the marketing agreements of the agency associations with Sunkist and with individual growers must be tested by the standard applicable to contracts with nonmembers.

The Court of Appeals held that, treated as contracts with nonmembers, the agreements in question were proper under the Act. 369 F. 2d 449, 461-462. I agree. Regarded as contracts, these agreements provide essentially that a grower who desires to market through the Sunkist system and have his fruit packed by an agency association shall deliver to such association his entire crop for the year, that the agency association shall pack it in return for cost plus a fixed fee, and that the entire crop shall then be marketed by Sunkist. The contract may be canceled by the grower in August of any year. Since the main effect of these agreements is simply to give the growers who want to market through Sunkist a wider choice of packing facilities than they would enjoy if limited to cooperative packing houses, I would hold that the agreements are permissible when looked upon as contracts with nonmembers.

In accord with this opinion, I would remand the case to the District Court so that Case-Swayne may show what, if any, of the damage allegedly suffered by it resulted from actions taken by the agency associations for their own benefit as distinguished from that of the growers. I need hardly say that for the future Sunkist would forfeit its entire Capper-Volstead antitrust exemption were it to elect to continue the membership of the agency associations.

Mr. Justice White,

with whom Mr. Justice Stewart joins,

concurring in the result.

I agree with the Court’s basic judgment that Congress intended to grant immunity from the antitrust laws only to the cooperative efforts of “[p]ersons engaged in the production of agricultural products as farmers, planters, ranchmen, dairymen, nut or fruit growers . . . .” Arrangements between growers and nongrowers are subject to scrutiny under the antitrust laws. Under the controlling decisions any combination between Sunkist and nongrower packing houses, were they not members of Sunkist, would have to meet the standards of the antitrust statutes. United States v. Borden Co., 308 U. S. 188 (1939). Making the nongrower a member of the cooperative should not and does not immunize grower-nongrower transactions from any of the antitrust laws. Despite such membership, these transactions continue to be forbidden if they violate § 1. Indeed, membership should itself be looked upon as an agreement or combination between growers and nongrowers which, if it restrains trade, is subject to suit under the Sherman Act. Hence, since the complaint in this case encompassed a charge that certain arrangements between Sunkist and the nongrower agency associations denied product fruit to Case-Swayne and violated the antitrust laws, I agree that it was error to dismiss the § 1 charge on immunity grounds.

But it does not follow that Sunkist has lost its antitrust immunity completely. The bulk of its members are grower cooperatives or marketing agencies, and the great majority of its transactions are dealings with and for the account of these agricultural cooperatives which Congress clearly intended to exempt from the antitrust laws. An exempt organization may not conspire with an outsider to violate § 1, but if it does, it does not forfeit its immunity except for that transaction. I see no reason for a different consequence where the conspiracy or combination takes the form of granting membership in the exempt organization. If nongrower membership is a combination in restraint of trade or if any agreements between Sunkist and the nongrower member violate the Sherman Act, Case-Swayne should be able to collect treble damages for any injury flowing from such violations. But I see little basis for concluding that the membership of the agency association strips Sunkist of its status as an exempt cooperative and exposes it to what would be very extensive liability under the antitrust laws wholly unrelated to the nongrower affiliation.

At the base of the Sunkist organization are 12,000 growers who themselves are not members of Sunkist but who are members of local associations which operate packing houses and which pick, pack, and arrange for the marketing of the fruit grown by their members. Most of these local associations appear to qualify as exempt agricultural cooperatives. A relatively small number, however, the so-called agency associations, are privately owned packing houses which buy and pack the fruit of those growers with whom they contract. The local associations, including the agency associations, are in turn organized into district exchanges which, unless agency association membership disqualifies some of them, would seem also to be exempt cooperatives. The district exchanges are primarily marketing organizations. Sunkist, a member corporation, is at the top of the pyramid. Among other things, it has ultimate authority and responsibility for the marketing of both fresh and product fruit.

Membership in Sunkist is made up of the local associations and the district exchanges. The agency associations make up about 15% of the membership. They have, however, no direct voice in the election of Sunkist directors since the selection of directors is vested in the exchange members alone. The directors have very wide authority to conduct the affairs of Sunkist. Under the charter and bylaws, general membership carries with it little power and influence. Membership does, however, involve the execution of a membership application and agreement binding the member to Sunkist’s charter and bylaws, which give Sunkist extensive powers over the marketing of its members’ fruit, including the power to confine the packing, processing, and marketing functions to the Sunkist family. In addition, local associations and exchanges apparently execute the standard “Sunkist-District Exchange-Association Agreement” which, among other things, contains the agreement by the local association to market fruit exclusively through the exchanges and by the exchange to market exclusively through Sunkist.

If Sunkist’s exemption is completely lost because of the membership of the nongrower agency associations, several consequences follow. Those district exchanges which have nongrower members will likewise forfeit their exemption. The arrangements among Sunkist, exempt exchanges, and exempt local associations will be looked upon as arrangements between exempt and nonexempt organizations. Thus for all practical purposes the entire Sunkist structure will be exposed to antitrust liability for a great many transactions which are wholly between growers or between their cooperative organizations, transactions which Congress intended to exempt from the antitrust laws.

Neither the agency associations themselves nor their arrangements with growers are claimed by Sunkist to be Capper-Volstead cooperatives exempt because of that status from examination under the Sherman Act. Also, the contracts and arrangements between the agency associations, nonexempt entities, and the exchanges and Sunkist, which should be treated as otherwise exempt entities, are themselves within the reach of § 1. Among these nonexempt arrangements is the membership of an agency association in either an exchange or Sunkist itself. Case-Swayne should be able to recover from Sunkist those damages which flow from restraints of trade resulting from the agreements between the agency associations and Sunkist or between the agency associations and the district exchanges and from the membership of the agencies in either Sunkist or the exchanges. But Case-Swayne should not recover for injury to its business caused by other intercooperative or intergrower transactions and not resulting from the forbidden relationship between an exempt and a nonexempt entity. This result, in my view, will more nearly serve the policy of Congress in granting antitrust exemption to growers and their cooperative activities.

I would remand to the District Court for a trial of the § 1 case under the above principles.

Mr. Justice Douglas,

dubitante.

I am not as certain as Mr. Justice White appears to be that the immunity of the growers or cooperatives granted by the Capper-Yolstead Act is only partially lost in case nongrowers combine with the growers or cooperatives. But the question is certainly not free of doubt and it has not been argued. Nor have the questions discussed by Mr. Justice Harlan been fully presented and argued. So far as we can tell at this stage of the litigation, all of those problems may turn out to be wholly abstract. The extent, let alone the nature, of participation by nongrower elements in the agreements and practices alleged to violate the antitrust laws has indeed hardly been explored. Therefore I think it is the part of wisdom specifically to reserve the questions with regard to the scope of the immunity that may survive today’s ruling.

       369 F. 2d 449 (1966), cert. denied, 387 U. S. 932 (1967). See Maryland & Virginia Milk Producers Assn., v. United States, 362 U. S. 458 (1960); Sunkist Growers, Inc. v. Winckler & Smith Citrus Products Co., 370 U. S. 19 (1962).

         Section 1 of the Act reads:
      “Persons engaged in the production of agricultural products as farmers, planters, ranchmen, dairymen, nut or fruit growers may act together in associations, corporate or otherwise, with or without capital stock, in collectively processing, preparing for market, handling, and marketing in interstate and foreign commerce, such products of persons so engaged. Such associations may have marketing agencies in common; and such associations and their members may make the necessary contracts and agreements to effect such purposes: Provided, however, That such associations are operated for the mutual benefit of the members thereof, as such producers, and conform to one or both of the following requirements:
      “First. That no member of the association is allowed more than one vote because of the amount of stock or membership capital he may own therein, or,
      “Second. That the association does not pay dividends on stock or membership capital in excess of 8 per centum per annum.
      “And in any case to the following:
      “Third. That the association shall not deal in the products of nonmembers to an amount greater in value than such as are handled by it for members.” 7 U. S. C. § 291.

       “Limitation of membership in local associations to actual citrus-fruit producers is a cardinal principle of the Exchange [i. e., Sunkist] system.” Gardner & McKay, California Fruit Growers Exchange System 88 (U. S. Dept. of Agriculture, FCA Cir. No. C-135 (1950)). See also Cumberland, Cooperative Marketing — Its Advantages as Exemplified in the California Fruit Growers Exchange 87 (1917). The corporate name of Sunkist prior to 1952 was the California Fruit Growers Exchange.

       In 1958, approximately the midpoint of the period relevant to this complaint, Sunkist altered its structure in two principal respects: first, local associations became members of Sunkist Growers directly, whereas under the old bylaws they had been represented through the district exchanges; second, two wholly owned corporate subsidiaries of Sunkist — Exchange Lemon Products Co. and Exchange Orange Products Co. — were merged into Sunkist. Since the parties have agreed that these changes in no way affect the issue here, we discuss Sunkist in its post-1958 form.

       Under the marketing contract, the agency packing house obtains for its services “all of its costs of every kind incurred in connection with” processing and marketing the fruit; the so-called “fixed fee,” in the contract in this record, is an amount “not in excess of 5 cents per field box on grapefruit, 10 cents on oranges,” etc. We are not advised how that fixed fee is determined, other than that it is the result of bargaining between the company and the grower. It may well be that the fixed fee is dependent on the benefits of collective marketing through Sunkist, in the limited sense that it represents to the parties what one can charge and the other can pay, both anticipating the return the grower may achieve through pooling his fruit with the Sunkist organization. The stipulation, we note, provides only that the agency association “does not itself participate in either the gain or loss involved in marketing fruit through Sunkist beyond the recovery of its costs and fixed fee for packing.” (Emphasis added.) In our view, however, that discrepancy in the record is not crucial to the decision here.

       The majority below held that the issue here was resolved sub silentio in favor of Sunkist in Sunkist Growers, Inc. v. Winckler & Smith Citrus Products Co., 370 U. S. 19 (1962). But nongrower participation in Sunkist was not pointed out nor was the issue raised in that case; indeed, it was conceded by the respondents there that Sunkist was a Capper-Volstead cooperative.

       See H. R. Rep. No. 627, 63d Cong., 2d Sess., 14-16 (1914) ; Allen Bradley Co. v. Local No. 8, 325 U. S. 797 (1945).

       The purpose and object of the limited exemption of the Capper-Volstead Act is fully discussed in Maryland & Virginia Milk Producers Assn. v. United States, 362 U. S. 458, 464-468 (1960); see also Hanna, Antitrust Immunities of Cooperative Associations, 13 Law & Contemp. Prob. 488 (1948).

       62 Cong. Rec. 2052 (1922). See also 60 Cong. Rec. 369 (1920) (remarks of Senator Lenroot). It is significant that an amendment was offered on the floor of the Senate to bring within the bill processors of agricultural products where the grower’s return depended upon the price the processor obtained for the finished product, reference being made to the beet sugar manufacturer. 62 Cong. Rec. 2273 (1922). Like Sunkist’s argument here, it was stated that “the beneficiary of this [amendment] would be the producer.” Id., at 2274. But as Senator Norris stated in opposition to the inclusion of the processors (id., at 2275):
      “They are not cooperators; they are not producers; it is not an organization composed of producers who incorporate together to handle their own products ...”
      The amendment was rejected. Id., at 2275, 2281.

       See Hulbert, Legal Phases of Farmer Cooperatives 170 (U. S. Dept, of Agriculture, FCS Bull. No. 10, 1958):
      “This and other language which appears in the act make it plain that a cooperative, to come within the act, must be composed of producers.”
      See also Hulbert, Legal Phases of Cooperative Associations 45 (U. S. Dept, of Agriculture, Bull. No. 1106, 1922); Mischler, Agricultural Cooperative Law, 30 Pocky Mt. L. Rev. 381, 385 (1958); 36 Op. Atty. Gen. 326, 339 (1930); Note, 44 Ya. L. Rev. 63, 69-70, 100 (1958).

       Cf. Sheffield Farms Co., 44 F. T. C. 555 (1948); Gold Medal Farms, Inc., 29 F. T. C. 356 (1939).

        E. g., 62 Cong. Rec. 2271 (1922); 60 Cong. Rec. 365 (1920).
      Sunkist — a membership, rather than stock, corporation — points out that it, then known as the California Fruit Growers Exchange, was favorably referred to during the debates, see, e. g., 62 Cong. Rec. 2052, 2267, 2271, 2277 (1922); 60 Cong. Rec. 312, 315, 360-361, 370 (1920). There is nothing to show, however, that Congress was aware that nonproducers participated in the marketing of fruit in the Sunkist system; in our reading of those references, it is more likely that Congress assumed the organization was solely of producers. For that matter, Senator Walsh, for one, doubted that the Exchange’s federation of cooperative associations would even be encompassed by the Act (62 Cong. Rec. 2277-2278). In any event, we cannot take those remarks as intending specific approval of Sunkist, in light of the language of the Act and its other history.

       It was recognized, for example, that producers who desired to organize for collective marketing might not have, at the outset, the necessary finances to do so, and might therefore seek capital from nonproducers. See 60 Cong. Rec. 365 (1920) (remarks of Senator Walsh); 62 Cong. Rec. 2271 (1922) (same); 62 Cong. Rec. 2273 (1922) (remarks of Senator Norris). See also Hearings on H. R. 2373 before a Subcommittee of the Senate Judiciary Committee, 67th Cong., 1st Sess. (1921).

       As such, the agency association's interests may in some situations be antithetical to those of the growers with which it has contracted. For example, Sunkist has the power to review contracts between growers and the agency associations. Obviously, to the extent that the agency associations are represented in the councils of Sunkist, they in effect review their own contracts.

       All we decide is that Sunkist Growers, Inc., is not entitled to assert Capper-Volstead as a defense to the suit based on § 1 of the Sherman Act. We express no views on the merits of that suit.

       It appears that the agency associations have been members of the system at least since 1924. See McKay & Stevens, Organization and Development of a Cooperative Citrus-Fruit Marketing Agency 22-23 (U. S. Dept, of Agriculture, Bull. No. 1237, 1924).

       See n. 12, ante, at 394.

       See, e. g., 62 Cong. Ree. 2217-2226, 2257-2280.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    SIMS v. GEORGIA.
    No. 678.
    Decided December 18, 1967.

      Jack Greenberg, James M. Nabrit III, Anthony G. Amsterdam and Howard Moore, Jr., for petitioner.
   Per Curiam.

This case is before us for the second time. Last Term we granted certiorari to consider five constitutional questions raised by petitioner in challenging his conviction for rape and his accompanying death sentence. 384 U. S. 998 (1966). Because we decided the case on the ground that petitioner had not received the hearing on the vol-untariness of a confession introduced against him required by our decision in Jackson v. Denno, 378 U. S. 368 (1964), we did not reach the other issues argued by the parties. 385 U. S. 538 (1967).

On remand the case was submitted to the judge who had presided at petitioner’s original trial on the basis of the printed record previously before this Court. On that record alone the trial judge determined that petitioner’s confession had been voluntary and denied a new trial. The trial court specifically refused to pass on any of the other questions previously briefed and argued here, holding that the prior rulings on these issues by the Georgia Supreme Court constituted the law of the case. The Georgia Supreme Court affirmed, upholding the trial court on all points.

In his present application petitioner raises again two of the four issues not reached in our previous decision in this case: the voluntariness of his confession and the composition of the juries by which he was indicted and tried. In response to the State’s previous argument that “there was no evidence to make any issue of voluntariness” and therefore there was no need to apply Jackson v. Denno, Mr. Justice Clark stated:

“We cannot agree. There was a definite, clear-cut issue here. Petitioner testified that Doctor Jackson physically abused him while he was in his office and that he was suffering from that abuse when he made the statement, thereby rendering such confession involuntary and the result of coercion. The doctor admitted that he saw petitioner on the floor of his office; that he helped him disrobe and that he knew that petitioner required hospital treatment because of the laceration over his eye but he denied that petitioner was actually abused in his presence. He was unable to state, however, that the state patrolmen did not commit the alleged offenses against petitioner’s person because he was not in the room during the entire time in which the petitioner and the patrolmen were there. In fact, the doctor was quite evasive in his testimony and none of the officers present during the incident were produced as witnesses. Petitioner’s claim of mistreatment, therefore, went uncontradicted as to the officers and was in conflict with the testimony of the physician.” 385 U. S., at 543.

Thus in remanding the case for a hearing on volun-tariness we indicated to the State that as the evidence then stood it had failed adequately to rebut petitioner’s testimony that he had been subjected to physical violence prior to his confession. The State had every opportunity to offer the police officers, whose failure to testify had already been commented upon here, to contradict petitioner’s version of the events. Its failure to do so when given a second chance lends support to the conclusion that their testimony would not, in fact, have rebutted petitioner’s.

It needs no extended citation of cases to show that a confession produced by violence or threats of violence is involuntary and cannot constitutionally be used against the person giving it. Beecher v. Alabama, ante, p. 35. The reliance by the State on subsequent warnings made to petitioner prior to his confessing is misplaced. Petitioner had been in the continuous custody of the police for over eight hours and had not been fed at all during that time. He had not been given access to family, friends, or counsel at any point. He is an illiterate, with only a third grade education, whose mental capacity is decidedly limited. Under such circumstances the fact that the police may have warned petitioner of his right not to speak is of little significance. See Beecher v. Alabama, supra, at 37, n. 4. Compare Fikes v. Alabama, 352 U. S. 191 (1957).

Petitioner also contends that he was indicted and tried by juries from which members of his race had been unconstitutionally excluded. The facts reveal that the grand and petit jury lists were drawn from the county tax digests which separately listed taxpayers by race in conformity with then existing Georgia law. Negroes constituted 24.4% of the individual taxpayers in the county. However, they amounted to only 4.7% of the names on the grand jury list and 9.8% of the names on the traverse jury list from which petitioner’s grand and petit juries were selected. The State’s only response to that showing was to call one of the jury commissioners as a witness; the jury commissioner testified that he or one of the other commissioners knew personally every qualified person in the county and did not discriminate in selecting names for the jury lists. The facts in this case make it virtually indistinguishable from Whitus v. Georgia, 385 U. S. 545 (1967). Accordingly, it is clear that the juries by which petitioner was indicted and tried were selected in a manner that does not comport with constitutional requirements. See also Jones v. Georgia, ante, p. 24.

The petition for a writ of certiorari is granted, the judgment of the Supreme Court of Georgia is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion.

It is so ordered.

      The State has not filed a response. While ordinarily we would call for a response before deciding a case summarily, the exact issues presented now were briefed and argued fully by the State and petitioner last Term. Since the proceedings below on remand consisted -olely of a reconsideration of the printed record previously before us, we see no need for another presentation of the arguments already presented to us by the State.


text:
    UNITED STATES et al. v. DIXIE HIGHWAY EXPRESS, INC., et al.
    No. 694.
    Decided December 18, 1967.

      Acting Solicitor General Spritzer, Assistant Attorney General Turner, Howard E. Shapiro, Robert W. Ginnane and Betty Jo Christian for the United States et al. in No. 694. T. S. Christopher for appellant in No. 707.

      Robert E. Short for Dixie Highway Express, Inc., et al., and Bates Block, Wentworth Griffin, Ed White,W. D. Benson, Jr., John S. Fessenden, Robert E. Joyner, R. J. Reynolds III and William 0. Turney for Baggett Transportation Co. et al., appellees in both cases.

      Together with No. 707, Braswell Motor Freight Lines, Inc. v. Dixie Highway Express, Inc., et al., also on appeal from the same court.

   Per Curiam.

Pursuant to § 207 (a) of the Interstate Commerce Act, 49 Stat. 551, 49 U. S. C. § 307 (a), the Interstate Commerce Commission concluded that a certificate of public convenience and necessity should issue to Braswell Motor Freight Lines, Inc., authorizing Braswell to extend its motor carrier services to stated points. This conclusion was based upon the Commission’s finding that existing service to those points was inadequate to serve public needs. Upon suit by several competing motor carriers serving the area, the District Court enjoined the Commission from proceeding with the grant to Braswell on the ground that the Commission had failed to make adequate findings and that it had failed to afford existing carriers an opportunity to rectify deficiencies in their service. Upon remand, the Commission did not take further evidence, but it made additional findings in considerable detail. It again concluded that shippers and receivers were hampered by the inadequacy of existing service, and it held that, despite numerous complaints, existing carriers had not demonstrated that they could be depended upon to furnish adequate service.

The competing carriers then filed in the District Court a motion under the All-Writs .Act, 28 U. S. C. § 1651, contending that the Commission had disregarded the prior opinion and order of the court and asking that the court enforce its prior judgment. The District Court agreed. It stated that it was the Commission’s “invariable rule” that no certificate would issue to add a carrier to those serving an area without first furnishing existing carriers an opportunity to improve the service. It referred to this as a “rule of property” operating in favor of existing carriers. Accordingly, it permanently enjoined the Commission from issuing a certificate of convenience and necessity to Braswell “unless and until the [appellees — the existing motor carriers] are first afforded a reasonable opportunity to furnish such service . . . .”

The United States and the Commission, and Braswell, appealed the judgment to this Court under the provisions of 28 U. S. C. §§ 1253 and 2101 (b)

The District Court erred in holding that it is the “invariable rule” of the Commission to grant existing carriers an opportunity to remedy deficiencies in service, and in holding that carriers have a property right to such opportunity before a new certificate may be issued upon a lawful finding of public convenience and necessity pursuant to the statute. The Commission's power is not so circumscribed. No such limitation has been established by the Commission's own decisions or by judicial determinations. It is, of course, true that the Commission should consider the public interest in maintaining the health and stability of existing carriers, see United States v. Drum, 368 U. S. 370, 374 (1962); but it is also true that, upon the basis of appropriate findings, “the Commission may authorize the certificate even though the existing carriers might arrange to furnish successfully the projected service.” ICC v. Parker, 326 U. S. 60, 70 (1945); see Schaffer Transportation Co. v. United States, 355 U. S. 83, 90-91 (1957). Accordingly, we reverse and remand for further proceedings consistent with this opinion.

Me. Justice Makshall took no part in the consideration or decision of these cases.

       Appellees urge that the appeals are untimely because they were filed more than 60 days after the District Court’s initial judgment. This is palpably untenable because, without passing upon the appropriateness of the All-Writs procedure which appellees utilized, it is clear that the appeals were properly taken from the District Court’s second order entered after the Commission decision upon remand.


text:
    BROOKS v. FLORIDA.
    No. 14,
    Misc.
    Decided December 18, 1967.

      Earl Faircloth, Attorney General of Florida, and Wallace E. Allbritton, Assistant Attorney General, for respondent.
   Per Curiam.

Petitioner, Bennie Brooks, was convicted of participating in a riot in the Florida prison where he was an inmate and was sentenced to a term of nine years and eight months to run consecutively with the sentence he was already serving. His conviction was affirmed without opinion by the Florida District Court of Appeal, First District, and his petition for writ of certiorari filed in the Florida Supreme Court was dismissed, also without opinión.

The disturbance in the prison occurred on May 27, 1965. The same day Brooks was ordered confined in a punishment cell for 35 days with two other prisoners also accused of the rioting. Brooks says the cell was 7 feet long and 6% feet wide; a witness for the State testified it was 6 feet longer. This minor difference aside, the parties agree that the punishment cell had no external window, that it contained no bed or other furnishings or facilities except a hole flush with the floor which served as a commode, and that during the first 14 days he lived in this cell Brooks’ only contact with the outside was an unspecified number of interviews with the prison’s investigating officer. It is also agreed that while so confined Brooks was fed a “restricted diet” consisting, according to the testimony of the investigating officer, of “peas and carrots in a soup form” three times daily. Brooks’ more detailed description of this concoction— “they fed us four ounces of soup three times a day and eight ounces of water” — was not controverted, nor was his testimony that he was stripped naked before being thrown into the cell. On the 15th day of confinement under these conditions, Brooks was taken from the punishment cell and again brought directly to the investigating officer. This time, shortly after questioning began, Brooks confessed and dictated his statement into a tape recorder. The recording was introduced at trial. Brooks says that he was brutally beaten by one officer while the other was taking his statement. However, we do not consider this claim because the officer denied it and the judge disbelieved Brooks’ testimony. The judge also concluded that the confession was voluntary. We disagree.

Putting to one side quibbles over the dimensions of the windowless sweatbox into which Brooks was thrown naked with two other men, we cannot accept his statement as the voluntary expression of an uncoerced will. For two weeks this man’s home was a barren cage fitted only with a hole in one corner into which he and his cell mates could defecate. For two weeks he subsisted on a daily fare of 12 ounces of thin soup and eight ounces of water. For two full weeks he saw not one friendly face from outside the prison, but was completely under the control and domination of his jailers. These stark facts belie any contention that the confession extracted from him within minutes after he was brought from the cell was not tainted by the 14 days he spent in such an oppressive hole. In a long line of cases beginning with Brown v. Mississippi, 297 U. S. 278 (1936), and reaffirmed last Term in Clewis v. Texas, 386 U. S. 707 (1967), we have held that the Constitution does not permit prosecu-torial use of an involuntary confession. We have also asserted repeatedly that, in adjudicating the question of voluntariness, “we cannot escape the responsibility of making our own examination of the record.” Spano v. New York, 360 U. S. 315, 316 (1959). See Haynes v. Washington, 373 U. S. 503, 515 (1963); Chambers v. Florida, 309 U. S. 227, 228-229 (1940). The record in this case documents a shocking display of barbarism which should not escape the remedial action of this Court. Accordingly, we reverse the judgment below.

The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment of the Florida District Court of Appeal, First District, must be and hereby is

Reversed.

Mr. Justice Black concurs in the result.

      Because we hold that the use at trial of the involuntary confession requires reversal of petitioner’s conviction, we find it unnecessary to reach other issues raised by him. Thus, we express no views on petitioner’s contentions that (1) he was denied a fair trial because the residents of the rural county where venue was set were hostile toward inmates of the prison and (2) he was denied the effective assistance of counsel because his appointed attorney was forced to trial without an opportunity to prepare to represent petitioner and the 12 codefendants tried with him.


author: Per Curiam. Mr. Justice Harlan,

text:
    DAMICO et al. v. CALIFORNIA et al.
    No. 629,
    Misc.
    Decided December 18, 1967.

      George F. Duke for appellants.

      Thomas C. Lynch, Attorney General of California, and Richard L. Mayers and Elizabeth Palmer, Deputy Attorneys General, for appellees.
   Per Curiam.

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

Appellants, welfare claimants under California Welfare and Institutions Code §§ 11250, 11254, and regulation C-161.20 thereunder, sought damages, a declaratory judgment of unconstitutionality, and temporary and permanent injunctive relief in this suit under the Civil Rights Act, 42 U. S. C. § 1983, 28 U. S. C. § 1343. Their complaint alleges that the statute and regulation are discriminatory and that the appellees, in administering them and in applying them to appellants, deprived appellants of equal rights secured by the United States Constitution. The three-judge District Court dismissed the complaint solely because “it appear [ed] to the Court that all of the plaintiffs [had] failed to exhaust adequate administrative remedies.” This was error. In McNeese v. Board of Education, 373 U. S. 668, noting that one of the purposes underlying the Civil Rights Act was “to provide a remedy in the federal courts supplementary to any remedy any State might have,” id., at 672, we held that “relief under the Civil Rights Act may not be defeated because relief was not first sought under state law which provided [an administrative] remedy,” id., at 671. See Monroe v. Pape, 365 U. S. 167, 180-183. We intimate no view upon the merits of appellants’ allegations nor upon the other grounds not passed upon by the District Court.

The judgment of the District Court for the Northern District of California is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Mr. Justice Harlan,

dissenting.

California’s Aid to Families with Dependent Children program provides welfare assistance to mothers and children rendered destitute through desertion by or separation from the fathers of the children. The law requires that, unless a suit for divorce has been filed, the desertion or separation be of at least three months’ duration before AFDC aid will be granted.

Appellants were informed by a social worker that, no suit for divorce having been filed, they could not receive AFDC aid before the end of the three-month period; they then brought this suit for a declaration that the three-month requirement violated the Federal Constitution. The District Court, without reaching the question whether it should “abstain” pending appropriate state proceedings for relief, and without reaching the merits, dismissed on the ground that the plaintiffs had failed to exhaust “adequate administrative remedies.”

This Court, without. plenary consideration and without stating its reasons, now reverses the District Court’s dismissal, citing McNeese v. Board of Education, 373 U. S. 668. In McNeese, the Court held that Negro students, seeking relief from alleged school racial segregation, did not have to pursue and exhaust certain administrative remedies available under state law before bringing their federal action. Although I did not at the time and do not now fully understand the Court’s opinion in Mc-Neese, the net result of the case as I see it was that the right to assert, in a federal court, that state officials had acted in a manner depriving the plaintiff of clear constitutional rights could not be delayed by the interposition of intentionally or unintentionally inadequate state remedies for the alleged discrimination.

If that is a correct description of the exhaustion problem in McNeese, it bears little relation to the exhaustion question here. State AFDC relief was created pursuant to the provisions of the federal Social Security Act, 49 Stat. 627, 42 U. S. C. § 601 et seq. The Federal Government pays the major share of the cost of state aid, see 42 U. S. C. § 603, and in return closely supervises both how it shall be administered and what remedies shall be available to those who have complaints about its operation. Each State receiving federal assistance (which includes California) must formulate and submit to the Secretary of Health, Education, and Welfare, for his approval, a plan of operation of its AFDC program. 42 U. S. C. § 602. In particular, the plan must provide that “aid to families with dependent children . . . shall be furnished with reasonable promptness to all eligible individuals,” 42 U. S. C. § 602 (a)(9), and must “provide for granting ... a fair hearing before the State agency [whose creation is required by a separate provision, 42 U. S. C. 1 602 (a)(3)] to any individual whose claim for aid to families with dependent children is denied or is not acted upon with reasonable promptness.” 42 U. S. C. § 602 (a)(4). The California plan approved by the Secretary apparently includes both California’s three-month requirement and California’s hearing procedure.

The Court simply ignores the highly successful federal-state working relationship created by Congress in this area. The right of these appellants to receive AFDC funds involves not only questions of state law, but also the propriety of that law under federal statutory law. For the determination of these questions Congress has specified a state forum in the first instance. Today’s holding, made without benefit of briefs and oral argument and on a skimpy record, that 42 U. S. C. § 1983 may be used to bypass 42 U. S. C. § 602 is a disservice to both of these important statutes.

I would affirm the judgment below.

      The source of my difficulty is a compound of the occasional use of language broader than was necessary or warranted by the facts as the majority viewed them, and of my own disagreement with the majority’s view of the facts. In Monroe v. Pape, 365 U. S. 167, in an opinion which I joined, the Court declared that one complaining of unlawful search and seizure by state officials could sue them in a federal court under 42 U. S. C. § 1983, notwithstanding the availability of similar remedies under state law. That case did not say that one who is engaged in a course of dealing with an administrative agency may bypass the orderly procedures established by that agency and the procedures for review of agency action and sue its members individually at any stage. In McNeese it was the prevailing view, with which I disagreed under the circumstances, that the administrative procedures established by the State were inadequate for the vindication of federal rights. Reading Monroe to have interpreted 42 U. S. C. § 1983 “to provide a remedy where state law was inadequate, [and] ‘to provide a federal remedy where the state remedy, though adequate in theory, was not available in practice,”’ 373 U. S., at 672, the Court concluded that “[w]hen federal rights are subject to such tenuous protection, prior resort to a state proceeding is not necessary.” Id.., at 676.
      The majority opinion in McNeese also, however, attributed to Monroe the establishment of the principle that 42 U. S. C. § 1983 provides a “supplementary” remedy to any a State might have. This language is now interpreted by the Court to mean that there can be no requirement that a person dealing with an administrative agency continue to deal with it in an orderly fashion, no matter how adequate his remedy there. If this is what the majority opinion in McNeese meant to say, its dictum was gratuitous both in the sense that it was not compelled by the facts as the Court viewed them and in the sense that it was an incorrect interpretation of Monroe.


text:
    ROCKEFELLER, GOVERNOR OF NEW YORK, et al. v. WELLS et al.
    No. 691.
    Decided December 18, 1967.

      Louis J. Lefkowitz, Attorney General of New York, Samuel A. Hirshowitz, First Assistant Attorney General, and George D. Zuckerman, Assistant Attorney General, for appellants.

      Isidore Levine for appellees.
   Per Curiam.

The motion to affirm is granted and the judgment is affirmed.

Mr. Justice Harlan,

dissenting.

This action was brought by appellees under the Civil Rights Act, 42 U. S. C. §§ 1983, 1988, for declaratory and other relief. Their complaint alleged that New York’s congressional districting statute does not conform to the requirements of Art. I, § 2, of the United States Constitution, as those requirements are defined in Wesberry v. Sanders, 376 U. S. 1. A three-judge court was convened.

The court found, on the basis of 1960 census statistics, that the population of one of New York’s 41 congressional districts varied from the average population of the districts by 15.1%, and that 12 other districts varied from the population average by as much as 10%. It concluded that such a variation from average, without a suitable explanation, “violates constitutional requirements.” 273 F. Supp. 984, at 989. The court noted that there have been “substantial” population changes in these districts since 1960, and that complete accuracy in redistricting must await the results of the 1970 census, but reasoned that a suitable compromise would be to require redistricting immediately, premised on the best population figures now available. Revisions could then be made when the 1970 census statistics were released. This Court simply affirms, without elaboration or opinion.

There are, in my opinion, two principal issues here worthy of plenary consideration. First, the District Court thought it “too clear for debate” that this district-ing statute “violates constitutional requirements as enunciated by the Supreme Court.” 273 F. Supp., at 989. There are few issues in reapportionment cases that are clear beyond debate, and, with respect, the invalidity of this statute is certainly not among them. It is true that variations of as much as 18.28% were disapproved in Swann v. Adams, 385 U. S. 440, but the Court there also re-emphasized that the approval or disapproval of the variations in one State “has little bearing on the validity of a similar variation in another State.” Id., at 445. And see Reynolds v. Sims, 377 U. S. 533, 578. The impossibility of calculating the proper result in these cases from numerical variations is illustrated by Toombs v. Forison, 241 F. Supp. 65. The District Court there said specifically that “we will base any test as to the reasonableness of variances on the departure figure of 15 percent.” Id., at 70. This Court simply affirmed without opinion. 384 U. S. 210. See also Moore v. Moore, 246 F. Supp. 578, 582. Yet in this case, in which variations no greater than 15.1% are in issue, the Court again summarily affirms.

Presumably the size of the numerical variation is not alone decisive, but if the “particular circumstances of the case,” Reynolds v. Sims, supra, at 578, Swann v. Adams, supra, at 445, may be crucial to the validity of districting statutes, then surely the Court should endeavor to define what such circumstances are, and to indicate how they are relevant. Instead, the Court more and more often disposes of reapportionment cases summarily, see, e. g., Toombs v. Fortson, supra; Duddleston v. Grills, 385 U. S. 455; Kirkpatrick v. Preisler, 385 U. S. 450; Lucas v. Rhodes, ante, p. 212; and when the Court does issue an opinion, it is content simply to recite that such circumstances may be relevant, without undertaking any elucidation. See, e. g., Swann v. Adams, supra. All this has the effect of leaving the state legislatures, the lower courts, and even Congress without meaningful guidance.

Second, the confusion created by the Court’s reticence is compounded, in cases in which it is held that a dis-tricting statute does not satisfy constitutional requirements, by uncertainty as to the appropriate next step. See, e. g., Lucas v. Rhodes, supra. The District Court here noted that the Court’s cases provided “[l]ittle guidance or help,” but concluded, nonetheless, that immediate redistricting should be ordered, based on the best available population figures. It thought that this expedient was in the pattern set by Swann v. Adams, 383 U. S. 210. Swann, however, was merely a brief per curiam opinion, which did not purport to establish any general rule on appropriate remedies. As the elections of 1968 approach, it seems to me that the time has come for this Court to provide clearer guidance to the lower courts on the proper remedy in reapportionment cases. More particularly, some indication should be given as to what part, if any, 1960 census figures are to play, alone or in combination with later, albeit incomplete or unverified, population figures. See Lucas v. Rhodes, supra.

I would note probable jurisdiction, and set the case for argument.

       1 note, however, that the District Court in Preisler v. Secretary of State of Missouri, 257 F. Supp. 953, said specifically that “population and population alone is the sole standard for congressional representation.” Id., at 973. This Court affirmed without opinion. 385 U. S. 450. See also Bush v. Martin, 224 F. Supp. 499, 511, aff'd, 376 U. S. 222.

       The New York Legislature, for example, made careful efforts to comply with the constitutional requirements, as they had been enunciated by this Court. The Joint Legislative Committee on Reapportionment thus expressly recognized “the absence of Federal and State constitutional and statutory standards,” but concluded that “the most important standard is substantial equality of population.” Interim Report of the Joint Legislative Committee on Reapportionment, 1961 N. Y. Leg. Doc. No. 45, p. 4. It added that “[w]hile exact equality of population is the ideal, it is an ideal that, for practical reasons, can never be attained. Some variation from it will always be necessary. The question arises as to what is a permissible fair variation.” Ibid.

       The House Committee on the Judiciary, for example, reported favorably in 1965 on a bill which was intended to implement the requirements of Wesberry v. Sanders, supra, by creating a series of standards for the apportionment of congressional districts. The Committee noted that “[t]he courts . . . have been reluctant to prescribe standards ...” H. R. Rep. No. 140, 89th Cong., 1st Sess., 2. One standard included in the bill was a maximum permissible variation of 15% above or below the average population of the congressional districts within a State. Id., at 2-3. Given the present state of the law in this area, it is difficult to imagine how a legislator could sensibly decide whether such a maximum variation satisfied applicable constitutional requirements. Indeed, Representative Kastenmeier dissented from the Committee’s report, noting that “there is serious doubt whether H. R. 5505 can, in fight of the Wesberry case, withstand constitutional attack.” Id., at 5.


text:
    SIMON et al. v. WHARTON, TRUSTEE IN BANKRUPTCY.
    No. 72.
    Decided December 18, 1967.

      Marvin Schwartz for petitioners.

      Arthur Hill Christy for respondent.
   Per Curiam.

Upon consideration of the joint motion to vacate, the judgments of the lower courts are vacated and the case is remanded to the United States District Court for the Southern District of New York with instructions to dismiss the case as moot.


text:
    SATTERFIELD v. VIRGINIA.
    No. 216.
    Decided December 18, 1967.

      Henry W. McLaughlin, Jr., for petitioner.

      J. Willard Greer for respondent.
   Per Curiam.

The petition for a writ of certiorari is granted and the judgment is reversed. Miranda v. Arizona, 384 U. S. 436.


text:
    LANTZ, dba ALASKA TRUCK TRANSPORT, INC. v. LYNDEN TRANSFER, INC., et al.
    No. 623.
    Decided December 18, 1967.

      James T. Johnson for appellee Lynden Transfer, Inc.

      Acting Solicitor General Spritzer and Robert W. Gin-name for the United States et al.
   Per Curiam.

The motion of Douglas Lantz for leave to intervene and for other relief is denied. The motion to affirm is granted and the judgment is affirmed.


text:
    BURKE-PARSONS-BOWLBY CORP. et al. v. UNITED STATES et al.
    No. 711.
    Decided December 18, 1967.

      Gordon P. MacDougall for appellants.

      Solicitor General Griswold, Assistant Attorney General Turner and Robert W. Ginnane for the United States et al., and Laidler B. Mackall for the Baltimore & Ohio Railroad Co., appellees.
   Per Curiam.

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


text:
    ILLINOIS ex rel. MAERAS, TREASURER & EX-OFFICIO COLLECTOR OF TAXES OF MADISON COUNTY v. CHICAGO, BURLINGTON & QUINCY RAILROAD CO. et al.
    No. 670.
    Decided December 18, 1967.

      Burton C. Bernard for appellant.

      Hugh J. Dobbs, John F. Schlafly, Louis F. Gillespie, Gordon Burroughs, Eldon Martin, Jordan Jay Hillman and Robert L. Broderick for appellees.
   Per Curiam.

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


text:
    HULSHART v. MARYLAND.
    No. 708,
    Misc.
    Decided December 18, 1967.

      James D. Nolan for appellant.
   Per Curiam.

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


author: Per Curiam. Mr. Justice Douglas

text:
    MOSES et al. v. WASHINGTON et al.
    No. 246.
    Decided December 18, 1967.

      L. Frederick Paul and Frederick W. Post for appellants.

      James E. Kennedy and J. L. Coniff, Special Assistant Attorneys General of Washington, for appellees.

      Solicitor General Griswold for the United States, as amicus curiae.

   Per Curiam.

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

Mr. Justice Douglas

is of the opinion that probable jurisdiction should be noted.

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