author: Mr. Justice Black Mr. Justice Harlan, Mr. Justice Stewart, Mr. Justice Goldberg,

text:
    POINTER v. TEXAS.
    No. 577.
    Argued March 15, 1965.
    Decided April 5, 1965.

      Orville A. Harlan, by appointment of the Court, 379 U. S. 911, argued the cause and filed a brief for petitioner.

      Gilbert J. Pena, Assistant Attorney General of Texas, argued the cause for respondent. With him on the brief were Waggoner Carr, Attorney General of Texas, Hawthorne Phillips, First Assistant Attorney General, Stanton Stone, Executive Assistant Attorney General, and Howard M. Fender and Alio B. Crow, Jr., Assistant Attorneys General.
   Mr. Justice Black

delivered the opinion of the Court.

The Sixth Amendment provides in part that:

“In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him . . . and to have the Assistance of Counsel for his defence.”

Two years ago in Gideon v. Wainwright, 372 U. S. 335, we held that the Fourteenth Amendment makes the Sixth Amendment’s guarantee of right to counsel obligatory upon the States. The question we find necessary to decide in this case is whether the Amendment’s guarantee of a defendant’s right “to be confronted with the witnesses against him,” which has been held to include the right to cross-examine those witnesses, is also made applicable to the States by the Fourteenth Amendment.

The petitioner Pointer and one Dillard were arrested in Texas and taken before a state judge for a preliminary hearing (in Texas called the “examining trial”) on a charge of having robbed Kenneth W. Phillips of $375 “by assault, or violence, or by putting in fear of life or bodily injury,” in violation of Texas Penal Code Art. 1408. At this hearing an Assistant District Attorney conducted the prosecution and examined witnesses, but neither of the defendants, both of whom were laymen, had a lawyer. Phillips as chief witness for the State gave his version of the alleged robbery in detail, identifying petitioner as the man who had robbed him at gunpoint. Apparently Dillard tried to cross-examine Phillips but Pointer did not, although Pointer was said to have tried to cross-examine some other witnesses at the hearing. Petitioner was subsequently indicted on a charge of having committed the robbery. Some time before the trial was held, Phillips moved to California. After putting in evidence to show that Phillips had moved and did not intend to return to Texas, the State at the trial offered the transcript of Phillips’ testimony given at the preliminary hearing as evidence against petitioner. Petitioner’s counsel immediately objected to introduction of the transcript, stating, “Your Honor, we will object to that, as it is a denial of the confrontment of the witnesses against the Defendant.” Similar objections were repeatedly made by petitioner’s counsel but were overruled by the trial judge, apparently in part because, as the judge viewed it, petitioner had been present at the preliminary hearing and therefore had been “accorded the opportunity of cross examining the witnesses there against him.” The Texas Court of Criminal Appeals, the highest state court to which the case could be taken, affirmed petitioner’s conviction, rejecting his contention that use of the transcript to convict him denied him rights guaranteed by the Sixth and Fourteenth Amendments. 375 á. W. 2d 293. We granted certiorari to consider the important constitutional question the case involves. 379 U. S. 815.

In this Court we do not find it necessary to decide one aspect of the question petitioner raises, that is, whether failure to appoint counsel to represent him at the preliminary hearing unconstitutionally denied him the assistance of counsel within the meaning of Gideon v. Wainwright, supra. In making that argument petitioner relies mainly on White v. Maryland, 373 U. S. 59, in which this Court reversed a conviction based in part upon evidence that the defendant had pleaded guilty to the crime at a preliminary hearing where he was without counsel. Since the preliminary hearing there, as in Hamilton v. Alabama, 368 U. S. 52, was one in which pleas to the charge could be made, we held in White as in Hamilton that a preliminary proceeding of that nature was so critical a stage in the prosecution that a defendant at that point was entitled to counsel. But the State informs us that at a Texas preliminary hearing, such as is involved here, pleas of guilty or not guilty are not accepted and that the judge decides only whether the accused should be bound over to the grand jury and if so whether he should be admitted to bail. Because of these significant differences in the procedures of the respective States, we cannot say that the White case is necessarily controlling as to the right to counsel. Whether there might be other circumstances making this Texas preliminary hearing so critical to the defendant as to call for appointment of counsel at that stage we need not decide on this record, and that question we reserve. In this case the objections and arguments in the trial court as well as the arguments in the Court of Criminal Appeals and before us make it clear that petitioner’s objection is based not so much on the fact that he had no lawyer when Phillips made his statement at the preliminary hearing, as on the fact that use of the transcript of that statement at the trial denied petitioner any opportunity to have the benefit of counsel’s cross-examination of the principal witness against him. It is that latter question which we decide here.

I.

The Sixth Amendment is a part of what is called our Bill of Rights. In Gideon v. Wainwright, supra, in which this Court held that the Sixth Amendment’s right to the assistance of counsel is obligatory upon the States, we did so on the ground that “a provision of the Bill of Rights which is 'fundamental and essential to a fair trial’ is made obligatory upon the States by the Fourteenth Amendment.” 372 U. S., at 342. And last Term in Malloy v. Hogan, 378 U. S. 1, in holding that the Fifth Amendment’s guarantee against self-incrimination was made applicable to the States by the Fourteenth, we reiterated the holding of Gideon that the Sixth Amendment’s right-to-counsel guarantee is “ 'a fundamental right, essential to a fair trial,’ ” and “thus was made obligatory on the States by the Fourteenth Amendment.” 378 U. S., at 6. See also Murphy v. Waterfront Comm’n, 378 U. S. 52. We hold today that the Sixth Amendment’s right of an accused to confront the witnesses against him is likewise a fundamental right and is made obligatory on the States by the Fourteenth Amendment.

It cannot seriously be doubted at this late date that the right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him. And probably no one, certainly no one experienced in the trial of lawsuits, would deny the value of cross-examination in exposing falsehood and bringing out the truth in the trial of a criminal case. See, e. g., 5 Wigmore, Evidence § 1367 (3d ed. 1940). The fact that this right appears in the Sixth Amendment of our Bill of Rights reflects the belief of the Framers of those liberties and safeguards that confrontation was a fundamental right essential to a fair trial in a criminal prosecution. Moreover, the decisions of this Court and other courts throughout the years have constantly emphasized the necessity for cross-examination as a protection for defendants in criminal cases. This Court in Kirby v. United States, 174 U. S. 47, 55, 56, referred to the right of confrontation as “[o]ne of the fundamental guarantees of life and liberty,” and “a right long deemed so essential for the due protection of life and liberty that it is guarded against legislative and judicial action by provisions in the Constitution of the United States and in the constitutions of most if not of all the States composing the Union.” Mr. Justice Stone, writing for the Court in Alford v. United States, 282 U. S. 687, 692, declared that the right of cross-examination is “one of the safeguards essential to a fair trial.” And in speaking of confrontation and cross-examination this Court said in Greene v. McElroy, 360 U. S. 474:

“They have ancient roots. They find expression in the Sixth Amendment which provides that in all criminal cases the accused shall enjoy the right ‘to be confronted with the witnesses against him.’ This Court has been zealous to protect these rights from erosion.” 360 U. S., at 496-497 (footnote omitted).

There are few subjects, perhaps, upon which this Court and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal. Indeed, we have expressly declared that to deprive an accused of the right to cross-examine the witnesses against him is a denial of the Fourteenth Amendment’s guarantee of due process of law. In In re Oliver, 333 U. S. 257, this Court said:

“A person’s right to reasonable notice of a charge against him, and an opportunity to be heard in his defense — a right to his day in court — are basic in our system of jurisprudence; and these rights include, as a minimum, a right to examine the witnesses against him, to offer testimony, and to be represented by counsel.” 333 U. S., at 273 (footnote omitted).

And earlier this Term in Turner v. Louisiana, 379 U. S. 466, 472-473, we held:

“In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the ‘evidence developed’ against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant’s right of confrontation, of cross-examination, and of counsel.”

Compare Willner v. Committee on Character & Fitness, 373 U. S. 96, 103-104.

We are aware that some cases, particularly West v. Louisiana, 194 U. S. 258, 264, have stated that the Sixth Amendment’s right of confrontation does not apply to trials in state courts, on the ground that the entire Sixth Amendment does not so apply. See also Stein v. New York, 346 U. S. 156, 195-196. But of course since Gideon v. Wainwright, supra, it no longer can broadly be said that the Sixth Amendment does not apply to state courts. And as this Court said in Malloy v. Hogan, supra, “The Court has not hesitated to re-examine past decisions according the Fourteenth Amendment a less central role in the preservation of basic liberties than that which was contemplated by its Framers when they added the Amendment to our constitutional scheme.” 378 U. S., at 5. In the light of Gideon, Malloy, and other cases cited in those opinions holding various provisions of the Bill of Rights applicable to the States by virtue of the Fourteenth Amendment, the statements made in West and similar cases generally declaring that the Sixth Amendment does not apply to the States can no longer be regarded as the law. We hold that petitioner was entitled to be tried in accordance with the protection of the confrontation guarantee of the Sixth Amendment, and that that guarantee, like the right against compelled self-incrimination, is “to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.” Malloy v. Hogan, supra, 378 U. S., at 10.

II.

Under this Court’s prior decisions, the Sixth Amendment’s guarantee of confrontation and cross-examination was unquestionably denied petitioner in this case. As has been pointed out, a major reason underlying the constitutional confrontation rule is to give a defendant charged with crime an opportunity to cross-examine the witnesses against him. See, e. g., Dowdell v. United States, 221 U. S. 325, 330; Motes v. United States, 178 U. S. 458, 474; Kirby v. United States, 174 U. S. 47, 55-56; Mattox v. United States, 156 U. S. 237, 242-243. Cf. Hopt v. Utah, 110 U. S. 574, 581; Queen v. Hepburn, 7 Cranch 290, 295. This Court has recognized the admissibility against an accused of dying declarations, Mattox v. United States, 146 U. S. 140, 151, and of testimony of a deceased witness who has testified at a former' trial, Mattox v. United States, 156 U. S. 237, 240-244. See also Dowdell v. United States, supra, 221 U. S., at 330; Kirby v. United States, supra, 174 U. S., at 61. Nothing we hold here is to the contrary. The case before us would be quite a different one had Phillips’ statement been taken at a full-fledged hearing at which petitioner had been represented by counsel who had been given a complete and adequate opportunity to cross-examine. Compare Motes v. United States, supra, 178 U. S., at 474. There are other analogous situations which might not fall within the scope of the constitutional rule requiring confrontation of witnesses. The case before us, however, does not present any situation like those mentioned above or others analogous to them. Because the transcript of Phillips’ statement offered against petitioner at his trial had not been taken at a time and under circumstances affording petitioner through counsel an adequate opportunity to cross-examine Phillips, its introduction in a federal court in a criminal case against Pointer would have amounted to denial of the privilege of confrontation guaranteed by the Sixth Amendment. Since we hold that the right of an accused to be confronted with the witnesses against him must be determined by the same standards whether the right is denied in a federal or state proceeding, it follows that use of the transcript to convict petitioner denied him a constitutional right, and that his conviction must be reversed.

Reversed and remanded.

Mr. Justice Harlan,

concurring in the result.

I agree that in the circumstances the admission of the statement in question deprived the petitioner of a right of “confrontation” assured by the Fourteenth Amendment. I cannot subscribe, however, to the constitutional reasoning of the Court.

The Court holds that the right of confrontation guaranteed by the Sixth Amendment in federal criminal trials is carried into state criminal cases by the Fourteenth Amendment. This is another step in the onward march of the long-since discredited “incorporation” doctrine (see, e. g., Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding, 2 Stan. L. Rev. 5 (1949); Frankfurter, Memorandum on “Incorporation” of the Bill of Rights Into the Due Process Clause of the Fourteenth Amendment, 78 Harv. L. Rev. 746 (1965)), which for some reason that I have not yet been able to fathom has come into the sunlight in recent years. See, e. g., Mapp v. Ohio, 367 U. S. 643; Ker v. California, 374 U. S. 23; Malloy v. Hogan, 378 U. S. 1.

For me this state judgment must be reversed because a right of confrontation is “implicit in the concept of ordered liberty,” Palko v. Connecticut, 302 U. S. 319, 325, reflected in the Due Process Clause of the Fourteenth Amendment independently of the Sixth.

While either of these constitutional approaches brings one to the same end result in this particular case, there is a basic difference between the two in the kind of future constitutional development they portend. The concept of Fourteenth Amendment due process embodied in Palko and a host of other thoughtful past decisions now rapidly falling into discard, recognizes that our Constitution tolerates, indeed encourages, differences between the methods used to effectuate legitimate federal and state concerns, subject to the requirements of fundamental fairness “implicit in the concept of ordered liberty.” The philosophy of “incorporation,” on the other hand, subordinates all such state differences to the particular requirements of the Federal Bill of Rights (but see Ker v. California, supra, at 34) and increasingly subjects state legal processes to enveloping federal judicial authority. “Selective” incorporation or “absorption” amounts to little more than a diluted form of the full incorporation theory. Whereas it rejects full incorporation because of recognition that not all of the guarantees of the Bill of Rights should be deemed “fundamental,” it at the same time ignores the possibility that not all phases of any given guaranty described in the Bill of Rights are necessarily fundamental.

It is too often forgotten in these times that the American federal system is itself constitutionally ordained, that it embodies values profoundly making for lasting liberties in this country, and that its legitimate requirements demand continuing solid recognition in all phases of the work of this Court. The “incorporation” doctrines, whether full blown or selective, are both historically and constitutionally unsound and incompatible with the maintenance of our federal system on even course.

Mr. Justice Stewart,

concurring in the result.

I join in the judgment reversing this conviction, for the reason that the petitioner was denied the opportunity to cross-examine, through counsel, the chief witness for the prosecution. But I do not join in the Court’s pronouncement which makes “the Sixth Amendment’s right of an accused to confront the witnesses against him . . . obligatory on the States.” That questionable tour de force seems to me entirely unnecessary to the decision of this case, which I think is directly controlled by the Fourteenth Amendment’s guarantee that no State shall “deprive any person of life, liberty, or property, without due process of law.”

The right of defense counsel in a criminal case to cross-examine the prosecutor’s living witnesses is “[o]ne of the fundamental guarantees of life and liberty,” and “one of the safeguards essential to a fair trial.” It is, I think, as indispensable an ingredient as the “right to be tried in a courtroom presided over by a judge.” Indeed, this Court has said so this very Term. Turner v. Louisiana, 379 U. S. 466, 472-473.

Here that right was completely denied. Therefore, as the Court correctly points out, we need not consider the case which could be presented if Phillips’ statement had been taken at a hearing at which the petitioner’s counsel was given a full opportunity to cross-examine. See West v. Louisiana, 194 U. S. 258.

Mr. Justice Goldberg,

concurring.

I agree with the holding of the Court that “the Sixth Amendment’s right of an accused to confront the witnesses against him is ... a fundamental right and is made obligatory on the States by the Fourteenth Amendment.” Ante, at 403. I therefore join in the opinion and judgment of the Court. My Brother Harlan, while agreeing with the result reached by the Court, deplores the Court’s reasoning as “another step in the onward march of the long-since discredited ‘incorporation’ doctrine,” ante, at 408. Since I was not on the Court when the incorporation issue was joined, see Adamson v. California, 332 U. S. 46, I deem it appropriate to set forth briefly my view on this subject.

I need not recapitulate the arguments for or against incorporation whether “total” or “selective.” They have been set forth adequately elsewhere. My Brother Black’s view of incorporation has never commanded a majority of the Court, though in Adamson it was assented to by four Justices. The Court in its decisions has followed a course whereby certain guarantees “have been taken over from the earlier articles of the federal bill of rights and brought within the Fourteenth Amendment,” Palko v. Connecticut, 302 U. S. 319, 326, by a process which might aptly be described as “a process of absorption.” Ibid. See Cohen v. Hurley, 366 U. S. 117, 154 (dissenting opinion of Mr. Justice Brennan) ; Brennan, The Bill of Rights and the States, 36 N. Y. U. L. Rev. 761 (1961). Thus the Court has held that the Fourteenth

1 See Adamson v. California, supra, at 59 (concurring opinion of Mr. Justice Frankfurter); id., at 68 (dissenting opinion of Mr. Justice Black); Malloy v. Hogan, 378 U. S. 1; id., at 14 (dissenting opinion of Mr. Justice Harlan) ; Gideon v. Wainwright, 372 U. S. 335, 345 (concurring opinion of Mr. Justice Douglas); id., at 349 (concurring opinion of Mr. Justice Harlan) ; Poe v. Ullman, 367 U. S. 497, 509 (dissenting opinion of Mr. Justice Douglas) ; Frankfurter, Memorandum on “Incorporation” of the Bill of Rights Into the Due Process Clause of the Fourteenth Amendment, 78 Harv. L. Rev. 746; Black, The Bill of Rights, 35 N. Y. U. L. Rev. 865 (1960); Brennan, The Bill of Rights and the States, 36 N. Y. U. L. Rev. 761 (1961); Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding, 2 Stan. L. Rev. 5 (1949); Green, The Bill of Rights, the Fourteenth Amendment and the Supreme Court, 46 Mich. L. Rev. 869 (1948); Henkin, “Selective Incorporation” in the Fourteenth Amendment, 73 Yale L. J. 74 (1963). Amendment guarantees against infringement by the States the liberties of the First Amendment, the Fourth Amendment, the Just Compensation Clause of the Fifth Amendment, the Fifth Amendment’s privilege against self-incrimination, the Eighth Amendment’s prohibition of cruel and unusual punishments, and the Sixth Amendment’s guarantee of the assistance of counsel for an accused in a criminal prosecution.

With all deference to my Brother Harlan, I cannot agree that this process has “come into the sunlight in recent years.” Ante, at 408. Rather, I believe that it has its origins at least as far back as Twining v. New Jersey, 211 U. S. 78, 99, where the Court stated that “it is possible that some of the personal rights safeguarded by the first eight Amendments against National action may also be safeguarded against state action, because a dénial of them would be a denial of due process of law. Chicago, Burlington & Quincy Railroad v. Chicago, 166 U. S. 226.” This passage and the authority cited make clear that what is protected by the Fourteenth Amendment are “rights,” which apply in every case, not solely in those cases where it seems “fair” to a majority of the Court to afford the protection; Later cases reaffirm that the process of “absorption” is one of extending “rights.” See Ker v. California, 374 U. S. 23; Malloy v. Hogan, 378 U. S. 1, and cases cited- by Mr. Justice Brennan in his dissenting opinion in Cohen v. Hurley, supra, at 156. I agree with these decisions, as is apparent from my votes in Gideon v. Wainwright, 372 U. S. 335; Malloy v. Hogan, supra, and Murphy v. Waterfront Comm’n, 378 U. S. 52, and my concurring opinion in New York Times Co. v. Sullivan, 376 U. S. 254, 297, and I subscribe to the process by which fundamental guarantees of the Bill of Rights are absorbed by the Fourteenth Amendment and thereby applied to the States.

Furthermore, I do not agree with my Brother Harlan that once a provision of the Bill of Rights has been held applicable to the States by the Fourteenth Amendment, it does not apply to the States in full strength. Such a view would have the Fourteenth Amendment apply to the States “only a ‘watered-down, subjective version of the individual guarantees of the Bill of Rights.’ ” Malloy v. Hogan, supra, at 10-11. It would allow the States greater latitude than the Federal Government to abridge concededly fundamental liberties protected by the Constitution. While I quite agree with Mr. Justice Brandéis that “[i]t is one of the happy incidents of the federal system that a . . . State may . . . serve as a laboratory; and try novel social and economic experiments,” New State Ice Co. v. Liebmann, 285 U. S. 262, 280, 311 (dissenting opinion), I do not believe that this includes the power to experiment with the fundamental liberties of citizens safeguarded by the Bill of Rights. My Brother Harlan’s view would also require this Court to make the extremely subjective and excessively discretionary determination as to whether a practice, forbidden the Federal Government by a fundamental constitutional guarantee, is, as viewed in the factual circumstances surrounding each individual case, sufficiently repugnant to the notion of due process as to be forbidden the States.

Finally, I do not see that my Brother Harlan’s view would further any legitimate interests of federalism. It would require this Court to intervene in the state judicial process with considerable lack of predictability and with a consequent likelihood of considerable friction. This is well illustrated by the difficulties which were faced and were articulated by the state courts attempting to apply this Court’s now discarded rule of Betts v. Brady, 316 U. S. 455. See Green, The Bill of Rights, the Fourteenth Amendment and the Supreme Court, 46 Mich. L. Rev. 869, 897-898. These difficulties led the Attorneys General of 22 States to urge that this Court overrule Betts v. Brady and apply fully the Sixth Amendment’s guarantee of right to counsel to the States through the Fourteenth Amendment. See Gideon v. Wainwright, supra, at 336. And, to deny to the States the power to impair a fundamental constitutional right is not to increase federal power, but, rather, to limit the power of both federal and state governments in favor of safeguarding the fundamental rights and liberties of the individual. In my view this promotes rather than undermines the basic policy of avoiding excess concentration of power in government, federal or state, which underlies our concepts of federalism.

I adhere to and support the process of absorption by means of which the Court holds that certain fundamental guarantees of the Bill of Rights are made obligatory on the States through the Fourteenth Amendment. Although, as this case illustrates, there are differences among members of the Court as to the theory by which the Fourteenth Amendment protects the fundamental liberties of individual citizens, it is noteworthy that there is a large area of agreement, both here and in other cases, that certain basic rights are fundamental — not to be denied the individual by either the state or federal governments under the Constitution. See, e. g., Cantwell v. Connecticut, 310 U. S. 296; NAACP v. Alabama ex rel. Patterson, 357 U. S. 449; Gideon v. Wainwright, supra; New York Times Co. v. Sullivan, supra; Turner v. Louisiana, 379 U. S. 466.

      See state and English cases collected in 5 Wigmore, Evidence §§ 1367, 1395 (3d ed. 1940). State constitutional and statutory provisions similar to the Sixth Amendment are collected in 5 Wigmore, supra, § 1397, n. 1.

        Kirby v. United States, 174 U. S. 47, 55.

        Alford v. United States, 282 U. S. 687, 692.

        Rideau v. Louisiana, 373 U. S. 723, 727.

         See also In re Murchison, 349 U. S. 133, where the Court said that "due process requires as a minimum that an accused be given a public trial after reasonable notice of the charges, have a right to examine witnesses against him, call witnesses on his own behalf, and be represented by counsel.” 349 U. S., at 134.

       See, e. g., Gitlow v. New York, 268 U. S. 652, 666; De Jonge v. Oregon, 299 U. S. 353, 364; Cantwell v. Connecticut, 310 U. S. 296, 303; Louisiana ex rel. Gremillion v. NAACP, 366 U. S. 293, 296; New York Times Co. v. Sullivan, 376 U. S. 254.

       See Wolf v. Colorado, 338 U. S. 25; Mapp v. Ohio, 367 U. S. 643.

         Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226.

        Malloy v. Hogan, 378 U. S. 1.

        Robinson v. California, 370 U. S. 660.

        Gideon v. Wainwright, 372 U. S. 335.


source: Caselaw Access Project

author: MR. Justice Brennan Mr. Justice Harlan, Mr. Justice Stewart,

license: Public Domain

text:
    DOUGLAS v. ALABAMA.
    No. 313.
    Argued March 9-10, 1965.
    Decided April 5, 1965.

      Charles Cleveland argued the cause for petitioner. With him on the brief were Bryan A. Chancey and Robert 8. Gordon.

      Paul T. Gish, Jr., Assistant Attorney General of Alabama, argued the cause for respondent. With him on the brief was Richmond M. Flowers, Attorney General of Alabama.
   MR. Justice Brennan

delivered the opinion of the Court.

The petitioner and one Loyd were tried separately in Alabama’s Circuit Court on charges of assault with intent to murder. Loyd was tried first and was found guilty. The State then called Loyd as a witness at petitioner’s trial. Because Loyd planned to appeal his conviction, his lawyer, who also represented petitioner, advised Loyd to rely on the privilege against self-incrimination and not to answer any questions. When Loyd was sworn, the lawyer objected, on self-incrimination grounds, “to this witness appearing on the stand,” but the objection was overruled. Loyd gave his name and address but, invoking the privilege, refused to answer any questions concerning the alleged crime. The trial judge ruled that Loyd could not rely on the privilege because of his conviction, and ordered him to answer, but Loyd persisted in his refusal. The judge thereupon granted the State Solicitor’s motion “to declare [Loyd] a hostile witness and give me the privilege of cross-examination.” The Solicitor then produced a document said to be a confession signed by Loyd. Under the guise of cross-examination to refresh Loyd’s recollection, the Solicitor purported to read from the document, pausing after every few sentences to ask Loyd, in the presence of the jury, “Did you make that statement?” Each time, Loyd asserted the privilege and refused to answer, but the Solicitor continued this form of questioning until the entire document had been read. The Solicitor then called three law enforcement officers who identified the document as embodying a confession made and signed by Loyd. Although marked as an exhibit for identification, the document was not offered in evidence.

This procedure, petitioner argues, violated his rights under the Confrontation Clause of the Sixth Amendment as applied to the States. The statements from the document as read by the Solicitor recited in considerable detail the circumstances leading to and surrounding the alleged crime; of crucial importance, they named the petitioner as the person who fired the shotgun blast which wounded the victim. The jury found petitioner guilty. The Court of Appeals of Alabama affirmed, 42 Ala. App. 314,163 So. 2d 477. Although stating that Loyd’s alleged confession was inadmissible in evidence against petitioner under state law because “[tjhere must be confrontation face to face to allow viva voce cross-examination before the jury,” and noting that “it might be claimed that the repeated and cumulative use of the confession might have been an indirect mode of getting the inadmissible confession in evidence,” the Court of Appeals affirmed petitioner’s conviction on the ground that petitioner’s counsel had “stopped objecting" and that in that circumstance, “the failure to object was waiver.” 42 Ala. App., at 329, 332, 163 So. 2d, at 493, 495. The Supreme Court of Alabama denied review, 276 Ala. 703, 163 So. 2d 496. We granted certiorari, 379 U. S. 815. We reverse.

I.

We decide today that the Confrontation Clause of the Sixth Amendment is applicable to the States. Pointer v. Texas, ante, p. 400. Our cases construing the clause hold that a primary interest secured by it is the right of cross-examination; an adequate opportunity for cross-examination may satisfy the clause even in the absence of physical confrontation. As the Court said in Mattox v. United States,

“The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits . . . being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” 156 U. S. 237, 242-243.

See also 5 Wigmore, Evidence §§ 1365, 1397 (3d ed. 1940); State v. Hester, 137 S. C. 145, 189, 134 S. E. 885, 900 (1926).

In the circumstances of this case, petitioner’s inability to cross-examine Loyd as to the alleged confession plainly denied him the right of cross-examination secured by the Confrontation Clause. Loyd’s alleged statement that the petitioner fired the shotgun constituted the only direct evidence that he had done so; coupled with the description of the circumstances surrounding the shooting, this formed a crucial link in the proof both of petitioner’s act and of the requisite intent to murder. Although the Solicitor’s reading of Loyd’s alleged statement, and Loyd’s refusals to answer, were not technically testimony, the Solicitor’s reading may well have been the equivalent in the jury’s mind of testimony that Loyd in fact made the statement; and Loyd’s reliance upon the privilege created a situation in which the jury might improperly infer both that the statement had been made and that it was true. Slochower v. Board of Higher Education, 350 U. S. 551, 557-558; United States v. Maloney, 262 F. 2d 535, 537 (C. A. 2d Cir. 1959). Since the Solicitor was not a witness, the inference from his reading that Loyd made the statement could not be tested by cross-examination. Similarly, Loyd could not be cross-examined on a statement imputed to but not admitted by him. Nor was the opportunity to cross-examine the law enforcement officers adequate to redress this denial of the essential right secured by the Confrontation Clause. Indeed, their testimony enhanced the danger that the jury would treat the Solicitor’s questioning of Loyd and Loyd’s refusal to answer as proving the truth of Loyd’s alleged confession. But since their evidence tended to show only that Loyd made the confession, cross-examination of them as to its genuineness could not substitute for cross-examination of Loyd to test the truth of the statement itself. Motes v. United States, 178 U. S. 458; cf. Kirby v. United States, 174 U. S. 47.

Hence, effective confrontation of Loyd was possible only if Loyd affirmed the statement as his. However, Loyd did not do so, but relied on his privilege to refuse to answer. We need not decide whether Loyd properly invoked the privilege in light of his conviction. It is sufficient for the purposes of deciding petitioner’s claim under the Confrontation Clause that no suggestion is made that Loyd’s refusal to answer was procured by the petitioner, see Motes v. United States, supra, at 471; on this record it appears that Loyd was acting entirely in his own interests in doing so. This case cannot be characterized as one where the prejudice in the denial of the right of cross-examination constituted a mere minor lapse. The alleged statements clearly bore on a fundamental part of the State’s case against petitioner. The circumstances are therefore such that “inferences from a witness’ refusal to answer added critical weight to the prosecution’s case in a form not subject to cross-examination, and thus unfairly prejudiced the defendant.” Namet v. United States, 373 U. S. 179, 187. See also Fletcher v. United States, 118 U. S. App. D. C. 137, 332 F. 2d 724 (1964).

II.

We cannot agree with the Alabama Court of Appeals that petitioner’s counsel waived the right to confrontation through failure to make sufficient objection to the reading of Loyd’s alleged confession. The court stated: “There must be a ruling sought and acted on before the trial judge can be put in error. Here there was no ruling asked or invoked as to the questions embracing the alleged confession.” 42 Ala. App., at 332, 163 So. 2d, at 495. Yet, as the colloquy set out in the margin shows, petitioner’s counsel did object three times to the reading of the confession before the jury. After the second time, the Solicitor assured him that he already had an objection in— plainly implying that further objection to the reading of the document was unnecessary. The ground for objection to later questions would have been the same, that the confession was being read to the jury. In light of this record it is difficult to understand the Court of Appeals’ conclusion; nevertheless, accepting the finding as an authoritative interpretation of Alabama law, we follow our consistent holdings that the adequacy of state procedural bars to the assertion of federal questions is itself a federal question. See Wright v. Georgia, 373 U. S. 284, 289-291. In determining the sufficiency of objections we have applied the general principle that an objection which is ample and timely to bring the alleged federal error to the attention of the trial court and enable it to take appropriate corrective action is sufficient to serve legitimate state interests, and therefore sufficient to preserve the claim for review here. Davis v. Wechsler, 263 U. S. 22, 24; Love v. Griffith, 266 U. S. 32, 33-34. No legitimate state interest would have been served by requiring repetition of a patently futile objection, already thrice rejected, in a situation in which repeated objection might well affront the court or prejudice the jury beyond repair. Too, after the confession was read, the defense moved to exclude it; it then moved for a mistrial and for a new trial; all three motions were denied. After two of the three law enforcement officers had testified, the defense renewed its objections to the hearsay references in Loyd’s alleged confession and again was overruled. On these facts, it is clear that the defense brought the objection to the attention of the court at several points, at any of which corrective action could have been taken by stopping the questioning, excusing the jury, or excluding the evidence. To the extent that the Alabama rule requires objection after each and every question in this prolonged series, it is plainly inadequate to bar our review of the federal question presented.

Reversed and remanded.

Mr. Justice Harlan,

concurring in the result.

For reasons stated in the opinion of the Court, I agree that petitioner was denied a right of “confrontation” embodied in the concept of ordered liberty. I concur in the judgment of reversal on the premises stated in my opinion concurring in the result in Pointer v. Texas, ante, p. 408, decided today.

Mr. Justice Stewart,

concurring in the result.

The Court says that what happened in this case violated the petitioner’s “rights under the Confrontation Clause of the Sixth Amendment as applied to the States.” I concur in the Court’s judgment, because I think the petitioner was deprived of his liberty without due process of law in violation of the Fourteenth Amendment. This difference in view is, of course, far more than a matter of mere semantics. See my opinion concurring in the result in Pointer v. Texas, ante, p. 409.

         Loyd had not been sentenced at the time of petitioner’s trial. The trial judge initially threatened to hold Loyd in contempt for persisting in his refusal to answer after the judge had ruled that Loyd could not rely on the privilege since “the jury has already determined your guilt.” However, the judge did not proceed with the contempt citation but interrupted petitioner’s trial to sentence Loyd to 20 years’ imprisonment.

       There were 21 questions occupying seven pages in the printed record.

       Two of the Solicitor’s questions were as follows:
      “Did you make the further statement, ‘We intended to shoot these trucks before they got to Centreville, but when we turned and went back north and passed the trucks again I was unable to bring myself to the point of shooting the trucks. After we passed the trucks this time we turned around and went south again toward Centreville, Alabama. These trucks were both stopped at a truck stop in Centre-ville where we passed them again and we proceeded on south on No. 5 about twenty miles. We sat alongside of the highway waiting for the trucks to come on and several trucks passed us, so we thought we ought to move before someone recognized us. We went back north again and saw a station wagon that looked suspicious so we turned off No. 5 onto 16. We drove over this route about six or eight miles and pulled in behind a church. We sat there for about, five minutes and then heard what sounded like two trucks together going south on No. 5. We thought this was the two trucks and we went back to No. 5. When we got to No. 5 I told Douglas that I would drive and he said that was fine because 1 knew the car better than he. I drove on until we caught these trucks about five or eight miles above the junction of No. 5 and No. 80 and we passed them proceeding on to the junction where we turned around and headed back north to meet these trucks. Jesse Douglas was in the back seat with the automatic shotgun that belongs to B. F. Jackson and had it loaded with buckshot. He rolled down the window and when we passed these trucks he shot the lead truck as we passed them heading back north as they were coming south. We then went on to Highway 14, turned left and went into Greensboro, Alabama. We turned left in Greensboro on No. 69, drove south about five miles and realized we were going the wrong direction to go to Tuscaloosa, Alabama. We turned around and went back up to No. 69 to Tuscaloosa.’ Did you make that statement?”
      “Were you asked the question, ‘How many shots were fired at the truck?’ And your answer, ‘Only one.’ Did you say that?”

         The following occurred:
      “Q. Is that your signature (showing witness signature on confession) ?
      “A. I’m not sure.
      “Q. I will ask you if on January 20, 1962—
      “Mr. Esco: (Interrupting) If your Honor please, I object to the reading of any document or purported confession,—
      “Mr. McLeod: (Interrupting) This is cross-examination.
      “The Court: Hostile witness. Overrule.
      “Mr. Esco: We except, if you please.
      “Q. I will ask you if on the night of January 20, 1962, in Selma, Alabama, in the Dallas County jail if you didn’t make the following statement: (reading) T, Olen Ray Loyd, make the — ’
      “Mr. Esco: (Interrupting) I object to this being read in the presence of the jury.
      “Mr. McLeod: You’ve already got an objection in there.
      “Mr. Esco: I object to this being read in the presence of the jury.
      “The Court: Overrule.
      “Mr. Esco: We except.”
      After the questions w'ere read, defense counsel renewed his objections:
      “Mr. Esco: I’d first like to object to the reading of this purported confession on the grounds that it is hearsay evidence, that it was made outside the hearing of this defendant, it was not subject to cross-examination, and we move to exclude it from the evidence.
      “The Court: The Court will deny your motion.
      “Mr. Esco: We except, if you please. And at this time, your Honor, we make a motion for a mistrial on the grounds that this jury has been so prejudiced from these proceedings, and from the attempts of the prosecution to use illegal evidence, that no fair and just verdict whatsoever could come from a jury that has been so prejudiced.
      “The Court: Motion is denied.
      “Mr. Esco: We except, if you please.
      “Mr. Esco: We would like to make a motion for a new on the grounds that the proceedings have been very irregular here today and we feel that it has been prejudicial to this defendant.
      "The Court: . . . Your objection is overruled.
      “Mr. Esco: It is a motion, your Honor.
      “The Court: Your motion is overruled.
      “Mr. Esco: We except, if you please.”


author: Mr. Justice Goldberg Mr. Justice Douglas,

text:
    BURNETT v. NEW YORK CENTRAL RAILROAD CO.
    No. 437.
    Argued March 11, 1965.
    Decided April 5, 1965.

      Douglas G. Cole argued the cause for petitioner. With him on the brief was Otto F. Putnick.

      Roy W. Short argued the cause and filed a brief for respondent.
   Mr. Justice Goldberg

delivered the opinion of the Court.

On March 13, 1963, petitioner, a resident of Kentucky, began an action under the Federal Employers’ Liability Act, 35 Stat. 65, as amended, 45 U. S. C. § 51 et seg. (1958 ed.), in the Common Pleas Court of Hamilton County, Ohio. He alleged that he had been injured on March 17, 1960, in Indiana, while in. the course of his employment with respondent, the New York Central Railroad. The Ohio court had jurisdiction of the action, and respondent was properly served with process. The action was dismissed upon respondent’s motion, however, because venue was improper. While in Ohio in most transitory actions venue is proper wherever the defendant can be summoned, see Ohio Rev. Code §§ 2307.36, 2307.38, 2307.39, venue is properly laid in actions against railroads to recover for personal injuries only in the county of the plaintiff’s residence or the county where the injury occurred. See Ohio Rev. Code § 2307.37, Loftus v. Pennsylvania R. Co., 107 Ohio St. 352, 140 N. E. 94. On June 12, 1963, eight days after his state court action was dismissed, petitioner brought an identical action in the Federal District Court for the Southern District of Ohio. The District Court dismissed petitioner’s complaint on the ground that although the state suit was brought within the limitations period, the federal action was not timely and was then barred by the limitation provision of the FELA, 35 Stat. 66, as amended, 45 U. S. C. § 56 (1958 ed.), which provides: “That no action shall be maintained under this Act unless commenced within three years from the day the cause of action accrued.” 230 F. Supp. 767. The Court of Appeals, rejecting petitioner’s argument that his suit in the state court had tolled the FELA limitation provision, affirmed the District Court’s dismissal of his suit. 332 F. 2d 529. The Court of Appeals reasoned that since the limitation provision does not limit a common-law right, but, rather, is contained in the same Act which creates the right being limited, the limitation is “substantive” and not “procedural.” For this reason, it held, “[fjailure to bring the action within the time prescribed extinguished the cause of action.” 332 F. 2d, at 530. We granted certiorari to determine whether petitioner's suit in the Ohio state court tolled the FELA statute of limitations. 379 U. S. 913.

There is no doubt that, as a matter of federal law, the state action here involved was properly “commenced” within the meaning of the federal limitation statute which provides that “no action shall be maintained . . . unless commenced within three years from the day the cause of action accrued.” As this Court held in Herb v. Pitcairn, 325 U. S. 77, 79, “when process has been adequate to bring in the parties and to start the case on a course of judicial handling which may lead to final judgment without issuance of new initial process, it is enough to commence the action within the federal statute.” Had Ohio law permitted this state court action simply to be transferred to another state court, Herb v. Pitcairn holds that it would have been timely. The problem here, however, is that the timely state court action was not transferable under Ohio law but, rather, was dismissed, and a new action was brought in a federal court more than three years after the cause of action accrued. Nonetheless, for the reasons set out below, we hold that the principles underlying the Court's decision in Herb v. Pitcairn lead to the conclusion that petitioner’s state court action tolled the federal limitation provision and therefore petitioner’s federal court action here was timely.

The basic question to be answered in determining whether, under a given set of facts, a statute of limitations is to be tolled, is one “of legislative intent whether the right shall be enforceable . . . after the prescribed time.” Midstate Horticultural Co. v. Pennsylvania R. Co., 320 U. S. 356, 360. Classification of such a provision as “substantive” rather than “procedural” does not determine whether or under what circumstances the limitation period may be extended. As this Court has expressly held, the FELA limitation period is not totally inflexible, but, under appropriate circumstances, it may be extended beyond three years. Glus v. Brooklyn Eastern Terminal, 359 U. S. 231. See Osbourne v. United States, 164 F. 2d 767 (C. A. 2d Cir.); Scarborough v. Atlantic Coast Line R. Co., 178 F. 2d 253 (C. A. 4th Cir.); Frabutt v. New York, C. & St. L. R. Co., 84 F. Supp. 460 (D. C. W. D. Pa.). These authorities indicate that the basic inquiry is whether congressional purpose is effectuated by tolling the statute of limitations in given circumstances.

In order to determine congressional intent, we must examine the purposes and policies underlying the limitation provision, the Act itself, and the remedial scheme developed for the enforcement of the rights given by the Act. Such an examination leads us to conclude that it effectuates the basic congressional purposes in enacting this humane and remedial Act, as well as those policies embodied in the Act's limitation provision, to hold that when a plaintiff begins a timely FELA action in a state court of competent jurisdiction, service of process is made upon the opposing party, and the state, court action is later dismissed because of improper venue, the FELA limitation is tolled during the pendency of the state action.

Statutes of limitations are primarily designed to assure fairness to defendants. Such statutes “promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.” Order of Railroad Telegraphers v. Railway Express Agency, Inc., 321 U. S. 342, 348-349. Moreover, the courts ought to be relieved of the burden of trying stale claims when a plaintiff has slept on his rights.

This policy of repose, designed to protect defendants, is frequently outweighed, however, where the interests of justice require vindication of the plaintiff’s rights. Thus, this Court has held that an FELA action is not barred, though brought more than three years after the cause of action accrued, where a defendant misled the plaintiff into believing that he had more than three years in which to bring the action. Glus v. Brooklyn Eastern Terminal, supra. Moreover, it has been held that the FELA limitation provision is tolled when war has prevented a plaintiff from bringing his suit, even though a defendant in such a case might not know of the plaintiff’s -disability and might believe that the statute of limitations renders him immune from suit. See Osbourne v. United States, supra; Frabutt v. New York, C. & St. L. R. Co., supra. In such cases a plaintiff has not slept on his rights but, rather, has been prevented from asserting them.

Considerations in favor of tolling the federal statute of limitations in this case are similar to those leading to an extension of the limitation period in the cases mentioned above. Petitioner here did not sleep on his rights but brought an action within the statutory period in a state court of competent jurisdiction. Service of process was made upon the respondent notifying him that petitioner was asserting his cause of action. While venue was improper in the state court, under Ohio law venue objections may be waived by the defendant, and evidently in past cases defendant railroads, including this respondent, had waived objections to venue so that suits by nonresidents of Ohio could proceed in state courts. Petitioner, then, failed to file an FELA action in the federal courts, not because he was disinterested, but solely because he felt that his state action was sufficient. Respondent could not have relied upon the policy of repose embodied in the limitation statute, for it was aware that petitioner was actively pursuing his FELA remedy; in fact, respondent appeared specially in the Ohio court to file a motion for dismissal on grounds of improper venue.

Both federal and state jurisdictions have recognized the unfairness of barring a plaintiff’s action solely because a prior timely action is dismissed for improper venue after the applicable statute of limitations has run. In both federal and state systems of justice rules have been devised to prevent this from happening. Thus a federal statute, 28 U. S. C. § 1406 (a), allows a district court “of a district in which is filed a case laying venue in the wrong division or district . . . if it be in the interest of justice,” to “transfer such case to any district or division in which it could have been brought.” Congress thereby recognized that the filing of a lawsuit “itself shows the proper diligence on the part of the plaintiff which . . . statutes of limitation were intended to insure. If by reason of the uncertainties of proper venue a mistake is made . . . 'the interest of justice’ may require that the complaint ... be transferred in order that the plaintiff not be penalized by . . . 'time-consuming and justice-defeating technicalities.’ ” Goldlawr, Inc. v. Heiman, 369 U. S. 463, 467. If petitioner in this case had instituted his suit in a federal court where venue was improper, his case could simply have been transferred under § 1406 (a) to a court with proper venue; the statute of limitations would not have barred his action.

The States have developed two methods for preserving causes of action which would otherwise be barred by the passing of a limitation period after a plaintiff has brought his action in a court with improper venue. The first method is analogous to the congressional statute, 28 U. S. C. § 1406 (a), and permits transfer within the State from a court with improper venue to one where venue is proper. This Court has held that when a timely FELA action is brought in a state court without proper venue and service of process issues, the statute of limitations cannot bar the action when it is later transferred to a proper state court after the limitation period has run. Herb v. Pitcairn, supra. Thus, if venue for petitioner’s action were proper in some other county in Ohio, and if Ohio chose to preserve improper venue actions by means of a “transfer” statute, petitioner’s action would not have been barred by the statute of limitations. The second method used by many States to preserve actions brought in a court where venue is improper is a “saving” statute. Such a statute specifically gives to a plaintiff whose timely action is dismissed for procedural reasons such as improper venue a specified time in which to bring a second action. Ohio has such a statute, Ohio Rev. Code § 2305.19, and, had petitioner’s action been one arising under Ohio law, he would have had an additional year in which to file his action in a proper court. State causes of action brought in a court where venue is improper are preserved by one or the other of these two methods in 44 States.

These factors point to the conclusion that Congress did not intend the statute of limitations to bar a plaintiff who brings a timely FELA action in a state court of competent jurisdiction, who serves the defendant with process, and whose action is later dismissed for improper venue. This does not mean that we can accept petitioner’s argument that the federal limitation provision incorporates the Ohio Saving Statute. To allow the limitation provision to incorporate state saving statutes would produce nonuniform periods of limitation in the several States. The scope of such statutes and the length of additional time they allow vary considerably from State to State. Moreover, not all States have saving statutes. This Court has long recognized that the FELA “has a uniform operation, and neither is nor can be deflected therefrom by local statutes.” Panama R. Co. v. Johnson, 264 U. S. 375, 392; Second Employers’ Liability Cases, 223 U. S. 1, 51, 55. This Court has also specifically held that “[t]he period of time within which an action may be commenced is a material element in . . . [a] uniformity of operation” which Congress would not wish “to be destroyed by the varying provisions of the state statutes of limitation.” Engel v. Davenport, 271 U. S. 33, 39. The incorporation of variant state saving statutes would defeat the aim of a federal limitation provision designed to produce national uniformity.

On the other hand, to accept respondent’s argument that the limitation provision is not tolled under the circumstances present here would do even greater violence to the policies underlying the limitation provision and the Act. It would produce a substantial nonuniformity by creating a procedural anomaly. A plaintiff who brings a timely FELA action in a federal court where venue is improper would not be barred by the subsequent running of the limitation period, 28 U. S. C. § 1406 (a), nor would a plaintiff who brings a timely FELA action in a state court where venue is improper be barred by the subsequent running of the limitation period provided that the State has a "transfer” statute and venue is proper elsewhere in the State. Herb v. Pitcairn, supra. However, a similar plaintiff in a state court would be barred from further actions by the running of the limitation period if the State relies upon a “saving” statute, rather than a “transfer” statute to preserve similar state actions. Thus, in effect, a nonuniform limitation provision would be produced. Yet, as we have pointed out, a major reason for having a federal limitation provision was to achieve national uniformity. Engel v. Davenport, supra. Moreover, to accept respondent’s position could only discourage FELA actions in the courts of certain States. Yet Congress, in providing for concurrent state and federal court jurisdiction and prohibiting removal of FELA cases to federal courts, has sought to protect the plaintiff’s right to bring an FELA action in a state court. See Great Northern R. Co. v. Alexander, 246 U. S. 276. Cf. Gibson, The Venue Clause and Transportation of Lawsuits, 18 Law & Contemp. Prob. 367 (1953). Further, as we have pointed out, both Congress and the States have made clear, through various procedural statutes, their desire to prevent timely actions brought in courts with improper venue from being time-barred merely because the limitation period expired while the action was in the improper court. Finally, the humanitarian purpose of the FELA makes clear that Congress would not wish a plaintiff deprived of his rights when no policy underlying a statute of limitations is served in doing so.

These considerations thus lead us to conclude that when a plaintiff begins a timely FELA action in a state court having jurisdiction, and serves the defendant with process and plaintiff’s case is dismissed for improper venue, the FELA limitation is tolled during the pendency of the state suit. We believe that the interests of uniformity embodied in the Act are best served by holding that this rule, tolling the statute, applies in all States regardless of whether or not a State has a “saving” statute. We further hold, under familiar principles which have been applied to statutes of limitations, that the limitation provision is tolled until the state court order dismissing the state action becomes final by the running of the time during which an appeal may be taken or the entry of a final judgment on appeal. While this rule produces a minor nonuniformity since the time allowed for taking an appeal is not the same in all States, to adopt state “saving” statutes would be far less uniform. The period “saved” under such statutes varies widely among the States, and some States do not have “saving” statutes. Similarly, to toll the federal statute for a “reasonable time” after the state court orders the plaintiff’s action dismissed would create uncertainty as to exactly when the limitation period again begins to run. This uncertainty would be compounded by applying the equitable doctrine of “laches” to the federal lawsuit brought after the dismissal of the state court action. Whether laches bars an action in a given case depends upon the circumstances of that case and “is a question primarily addressed to the discretion of the trial court.” Gardner v. Panama R. Co., 342 U. S. 29, 30. To apply it here would be at variance with the policies of certainty and uniformity underlying this statute of limitations. We conclude that a uniform rule tolling the federal statute for the period of the pendency of the state court action and until the state court dismissal order becomes final is fair to both plaintiff and defendant, carries out the purposes of the FELA, and best serves the policies of uniformity and certainty underlying the federal limitation provision.

Applying these principles to the present case, since petitioner brought a timely suit in the Ohio court, served defendant with process, and, after finding the state action dismissed for improper venue, filed his suit in the Federal District Court only eight days after the Ohio court dismissed his action, before his time for appealing from the Ohio order had expired, his federal court action was timely. The Court of Appeals decision affirming the District Court’s dismissal of petitioner’s action is therefore reversed, and this ease is remanded for proceedings consistent with this opinion.

Reversed and remanded.

Mr. Justice Douglas,

whom Mr. Justice Black joins,

concurring.

The federal question presented is whether this action, timely started in the state court but not timely started if the filing date in the federal court governs, was “commenced within three years from the day the cause of action accrued” within the meaning of 45 U. S. C. § 56. I think it was so “commenced,” as much as was the action in Herb v. Pitcairn, 325 U. S. 77.

In reaching this conclusion I do not find it necessary to rely on the fact that petitioner.filed in the federal court “before his time for appealing from the Ohio order had expired,” ante, this page. Instead I rest simply on the ground that “when process has been adequate to bring in the parties and to start the case on a course of judicial handling which may lead to final judgment without issuance of new initial process, it is enough to commence the action within the federal statute.” 325 U. S.,.at 79. (Emphasis supplied.) And see Herb v. Pitcairn, 324 U. S. 117, 132-133 (dissenting opinion of Black, J.), setting forth the requirements for commencing an FELA action within the meaning of 45 U. S. C. § 56: (1) a bona fide effort to prosecute the claim, (2) in a court having jurisdiction, (3) resulting in-notice to the defendant.

If after dismissal the plaintiff delays inexcusably in refiling his suit in the proper court and the defendant is prejudiced by the delay, the action will of course be barred by laches. Gardner v. Panama R. Co., 342 U. S. 29, 30-31. That familiar equitable doctrine provides the defendant with adequate protection against delay. The Court rejects this established doctrine, however, creating a new statute of limitations of its own which makes the timeliness of a federal cause of action depend on state time requirements which were adopted for other, unrelated purposes and which vary from State to State. The long-established federal rule of laches, in contrast, is uncomplicated, uniform, and directly responsive to the problem. Laches, of course, has no application in the instant case, as petitioner filed in the federal court only eight days after his state court action had been dismissed.

       Counsel for petitioner stated at oral argument that the constitutionality of this special venue provision for actions against railroads was being challenged in other litigation. No constitutional issue was raised in these proceedings, and we express no views upon any such question.

       The distinction between substantive and procedural statutes of limitations appears to have arisen in cases involving conflicts of laws, see The Harrisburg, 119 U. S. 199; Davis v. Mills, 194 U. S. 451; Restatement of the Law, Conflict of Laws § 605. While the embodiment of a limitation provision in the statute creating the right which it modifies might conceivably indicate a legislative intent that the right and limitation be applied together when the right is sued upon in a foreign forum, the fact that the right and limitation are written into the same statute does not indicate a legislative intent as to whether or when the statute of limitations should be tolled. Thus the “substantive”-“procedural” distinction would seem to be of little help in deciding questions of extending the limitation period. See Glus v. Brooklyn Eastern Terminal, 359 U. S. 231; Developments in the Law — Statutes of Limitations, 63 Harv. L. Rev. 1177, 1186— 1188 (1950); Note, 72 Yale L. J. 600, 604-605 (1963).

       See, e. g., Rogers v. Missouri Pac. R, Co., 352 U. S. 500, 507. See also Griffith, The Vindication of a National Public Policy under the Federal Employers’ Liability Act, 18 Law & Contemp. Prob. 160 (1953).

         See The Act of Limitation with a Proviso, 32 Hen. 8, c. 2 (1540): “Forasmuch as the Time of Limitation appointed for suing ... extend, and be of so far and long Time past, that it is above the Remembrance of any living Man, truly to try and know the perfect Certainty of such Things, as hath or shall come in Trial ... to the great Danger of Mens Consciences that have or shall be impanelled in any Jury for the Trial of the same . . . .”

        Shelly v. Jefferson State Bank, 9 Ohio St. 606; Ohio Southern R. Co. v. Morey, 47 Ohio St. 207,24 N. E. 269.

       Because of the provisions of Ohio Rev. Code § 2307.37, venue in a suit for injuries to person or property against a railroad is proper only in the county where the cause of action arose or where the plaintiff resides. Thus venue in an action by a resident of a foreign state against a railroad arising out of an accident outside the State is not proper anywhere within Ohio. Railroads can agree to venue in an Ohio state court in such a case, however, and evidently they have so agreed, as we were told on oral argument, for cases can be found which involve accidents occurring, and plaintiffs who reside, outside the county where suit was brought. See, e. g., Woodworth v. New York Central R. Co., 149 Ohio St. 543, 80 N. E. 2d 142.

       Numerous cases hold that when dismissal of an action for improper venue would terminate rights without a hearing on the merits because plaintiff’s action would be barred by a statute of limitations, “the interest of justice” requires that the cause be transferred. See, e. g., Gold v. Griffith, 190 F. Supp. 482 (D. C. N. D. Ind.); Dennis v. Galvanek, 171 F. Supp. 115 (D. C. M. D. Pa.); Schultz v. McAfee, 160 F. Supp. 210 (D. C. D. Me.).

       Thirty-one States have transfer-of-venue statutes which appear to be relevant: Alaska Stat. §22.10.040; Ariz. Rev. Stat. 1956, § 12-404; Deering’s Cal. Code Civ. Proc. Ann. 1959, § 396; Colo. Rules Civ. Proc., Rule 98 (f); Conn. Gen. Stat. 1958, §52-32; Fla. Stat. 1963, §53.17; Idaho Code 1947, §5-406; Smith-Hurd’s Ill. Ann. Stat. 1956, c. 110, § 10; Burns’ Ind. Ann. Stat. 1933, §2-1401; Kan. Code Civ. Proc. Ann. 1963, §60-611; Mass. Gen. Laws Ann. 1959, c. 223, §15; Mich. Stat. Ann. 1962, § 27A.1651; Minn. Stat. Ann. 1947, §542.10; Miss. Code 1942, §1441; Mont. Rev. Codes 1947, §93-2906; Nev. Rev. Stat. § 13.050; N. H. Rev. Stat. Ann. 1955, §507:11; N. J. Court Rules Rev. 1:27D; McKinney’s N. Y. Civ. Prac. Law & Rules 1963, § 510; N. C. Gen. Stat. § 1-25; N. D. Century Code 1960, §28-04-07; Ore. Rev. Stat. §14.110; S. C. Code 1962, §10-310; S. D. Code §33.0306; Vernon’s Tex. Rules Civ. Proc., Rule 257; Utah Code Ann. 1953, §78-13-8; Va. Code 1950, §8-157; Wash. Rev. Code §4.12.030; W. Va. Code 1961, §5699; Wis. Stat. 1963, §261.03; Wyo. Stat. 1957, Civ. Proc. Code §1-53.

       Thirty-one States have “saving” statutes which appear to be relevant: Alaska Stat. §09.10.240 (one year); Ark. Stat. 1947, § 37-222 (one year); Conn. Gen. Stat. 1958, § 52-592 (one year); Del. Code Ann. 1953, Tit. 10, §8117 (one year); Ga. Code Ann. § 3-808 (six months); Smith-Hurd’s Ill. Ann. Stat. 1956, c. 83, § 24a (one year); Burns’ Ind. Ann. Stat. 1933, § 2-608 (five years); Iowa Code Ann. 1950, § 614.10 (six months); Kan. Code Civ. Proc. Ann. 1963, § 60-518 (six months); Ky. Rev. Stat. § 413.270 (90 days); Slovenko’s La. Civ. Code 1961, Art. 3555, R. S. 9:5801 (complete tolling); Me. Rev. Stat. 1954, c. 112, § 99 (six months); Mass. Gen. Laws Ann. 1959, c. 260, § 32 (one year); Mich. Stat. Ann. 1962, § 27A.5856 (90 days); Miss. Code 1942, § 744 (one year); Mont. Rev. Codes 1947, § 93-2708 (one year); N. H. Rev. Stat. Ann. 1955, §508:10 (one year); N. M. Stat. 1953, §23-1-14 (six months); McKinney’s N. Y. Civ. Prac. Law & Rules 1963, § 205 (six months); N. C. Gen. Stat. § 1-25 (one year); Ohio Rev. Code 1954, § 2305.19 (one year); Okla. Stat. Ann., Tit. 12, § 100 (one year); Ore. Rev. Stat. § 12.220 (one year); R. I. Gen. Laws § 9-1-22 (one year); Tenn. Code Ann. 1955, § 28-106 (one year); Vernon’s Tex. Civ. Stat. Ann., Tit. 91, Art. 5539a (60 days); Utah Code Ann. 1953, § 78-12-40 (one year); Vt. Stat. Ann. 1958, Tit. 12, § 558 (one year); Va. Code 1950, § 8-34 (one year); W. Va. Code 1961, § 5410 (one year); Wyo. Stat. 1957, § 1-26 (one year).

       See notes 8,9, supra, note 12, infra.

       An additional year is allowed in 20 States, six months in six States, 90 days in two States, 60 days in one State, five years in one State, and one State imposes no definite limitation upon the additional time allowed. See note 9, supra.

       Nineteen States appear to have no applicable saving statute. Alabama, Hawaii, Maryland, Missouri, Nebraska, and Pennsylvania appear to have neither a saving nor a transfer statute.

       This would be true in the 19 States which lack transfer statutes. Of those 19, 13 have saving statutes and six do not. See notes 8, 9, and 11, supra.

       Cf. Clayton Act, as amended, §5 (b), 69 Stat. 283, 15 U. S. C. § 16 (b) (1958 ed.); Electric Theater Co. v. Twentieth Century-Fox Film, Corp., 113 F. Supp. 937, 944 (D. C. W. D. Mo.); Subversive Activities Control Act of 1950, § 14, 64 Stat. 1001, 50 U. S. C. § 793 (b) (1958 ed.).


text:
    NATIONAL LABOR RELATIONS BOARD v. METROPOLITAN LIFE INSURANCE CO.
    No. 98.
    Argued January 21, 1965.
    Decided April 5, 1965.

      Daniel M. Friedman argued the cause for petitioner. On the briefs were Solicitor General Cox, Arnold Ordman, Dominick L. Manoli, Norton J. Come and Warren M. Davison.

      Burton A. Zorn argued the'cause for respondent. With him on the brief were George G. Gallantz, Thomas F. Delaney and Marvin Dicker.

   Mr. Justice Goldberg

delivered the opinion of the Court.

On petition of Insurance Workers International Union, AFL-CIO, and over the protest of respondent, Metropolitan Life Insurance Company, as to the appropriateness of the bargaining unit, the National Labor Relations Board, in a proceeding under § 9 (c) of the National Labor Relations Act, 49 Stat. 453, as amended, 29 U. S. C. § 159 (c) (1958 ed.), certified the union as the bargaining representative of all debit insurance agents, including all canvassing regular and office account agents, at respondent’s district office in Woonsocket, Rhode Island. Respondent deliberately refused to bargain with the union in order to challenge the appropriateness of the employee unit certified by the Board. See Pittsburgh Glass Co. v. Labor Board, 313 U. S. 146. The union thereupon filed unfair labor practice charges with the Board. The Board, adhering to its prior unit determination, held that respondent violated §§ 8 (a)(1) and (5) of the Labor Relations Act, 49 Stat. 452, as amended, 29 U. S. C. §§ 158 (a)(1) and (5) (1958 ed.), and directed respondent to bargain with the union. 142 N. L. R. B. 491. The Court of Appeals for the First Circuit refused to enforce the order on the grounds that in light of the “Board’s failure to articulate specific reasons for its unit determination,”' 327 F. 2d 906, 909, the Board’s apparently inconsistent determinations of appropriate units of respondent’s employees in other cities or regions, see 138 N. L. R. B. 565 (Delaware) ; 138 N. L. R. B. 734 (Sioux City); 144 N. L. R. B. 149 (Chicago); 138 N. L. R. B. 512 (Cleveland), its failure to discuss in these cases what weight, if any, it gave to the factor of the extent of union organization, and the fact that in these cases the Board consistently certified the unit requested by the union, the Court of Appeals could “only conclude that the . . . Board . . . has indeed . . . [regarded] the extent of union organization as controlling in violation of §9 (c)(5) of the Act.” 327 F. 2d, at 911. We granted certiorari because of an apparent conflict between this decision and the decisions of the Court of Appeals for the Third Circuit in Metropolitan Life Ins. Co. v. Labor Board, 328 F. 2d 820, petition for certiorari pending, No. 56 this Term, which sustained the Board’s determination in the Delaware case, 138 N. L. R. B. 565, and the Court of Appeals for the Sixth Circuit, Metropolitan Life Ins. Co. v. Labor Board, 330 F. 2d 62, petition for certiorari pending, No. 229 this Term, which sustained the Board’s determination in the Cleveland case, 138 N. L. R. B. 512. See also Labor Board v. Western & Southern Life Ins. Co., 328 F. 2d 891 (C. A. 3d Cir.), petition for certiorari pending, No. 91 this Term.

Section '9 (b) of the National Labor Relations Act, 49 Stat. 453, as amended, 29 U. S. C. § 159 (b) (1958 ed.) provides:

“The Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this subchapter, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof . . . .”

This broad delegation of authority, see Pittsburgh Glass Co. v. Labor Board, supra, was limited in 1947 by the enactment of §9 (c)(5) of the Act, 61 Stat. 144, 29 U. S. C. §159 (c)(5) (1958 ed.), which provides that “[i]n determining whether a unit is appropriate for the purposes specified in subsection (b) of this section the extent to which the employees have organized shall not be controlling.”

Although it is clear that in passing this amendment Congress intended to overrule Board decisions where the unit determined could only be supported on the basis of the extent of organization, both the language and legislative history of §9 (c)(5) demonstrate that the provision was not intended to prohibit the Board from considering the extent of organization as one factor, though not the controlling factor, in its unit determination.

The Court of Appeals here properly recognized this effect of § 9 (c)(5), but held, in light of the unarticulated bases of decision, and what appeared to it to be inconsistent determinations approving units requested by the union, that the only conclusion that it could reach was that the Board has made the extent of organization the controlling factor, in violation of the congressional mandate. We agree with the Court of Appeals that the enforcing court should not overlook or ignore an evasion of the §9(c)(5) command. We further agree that in determining whether or not there has been such an evasion, the results in other recent decisions of the Board are relevant. We cannot, however, agree that the only possible conclusion here is that the Board has violated § 9 (c)(5). Cf. Metropolitan Life Ins. Co. v. Labor Board (Cleveland), supra; Metropolitan Life Ins. Co. v. Labor Board (Delaware), supra.

On the other hand, due to the Board’s lack of articulated reasons for the decisions in and distinctions among these cases, the Board’s action here cannot be properly reviewed. When the Board so exercises the discretion given to it by Congress, it must “disclose the basis of its order” and “give clear indication that it has exercised the discretion with which Congress has empowered it.” Phelps Dodge Corp. v. Labor Board, 313 U. S. 177, 197. See Burlington Truck Lines v. United States, 371 U. S. 156, 167-169; Interstate Commerce Comm’n v. J-T Transport Co., 368 U. S. 81, 93. Although Board counsel in his brief and argument before this Court has rationalized the different unit determinations in the variant factual situations of these cases on criteria other than a controlling effect being given to the extent of organization, the integrity of the administrative process requires that “courts may not accept appellate counsel’s post hoc rationalizations for agency action . . . .” Burlington Truck Lines v. United States, supra, at 168; see Securities & Exchange Comm’n v. Chenery Corp., 332 U. S. 194, 196. For reviewing courts to substitute counsel’s rationale or their discretion for that of the Board is incompatible with the orderly function of the process of judicial review. Such action would not vindicate, but would deprecate the administrative process for it would “propel the court into the domain which Congress has set aside exclusively for the administrative agency.” Securities & Exchange Comm’n v. Chenery Corp., supra, at 196.

Accordingly, the judgment of the Court of Appeals is vacated and the case remanded to that court with instructions to remand it to the Board for further proceedings consistent with this opinion.

It is so ordered.

Mr. Justice Douglas,

dissenting.

A reading of the Court’s opinion reveals the fallacies on which the Board proceeded. The employer sought review of the Board’s order, asking that it be set aside. Concededly it should be. But we need not act as amicus for the Board, telling it what to do. The Board is powerful and resourceful and can start over again should it wish. How stale this record may be we do not know. Neither of the parties asks for a remand. They are willing to stand or fall on the present record; and we should resolve the controversy in that posture.

       The Decision and Direction of Election issued by the Board on October 24, 1962, is unreported.

       In the Delaware case the Board certified as a unit two of respondent’s three district offices in the State; in the Sioux City case the unit certified was respondent’s single district office in Sioux City, Iowa, together with two detached offices under its administrative control in Fargo, North Dakota, and Sioux Falls, South Dakota, 284 and 120 miles distant, respectively, from Sioux City; in the Chicago case the unit certified was that of all of the district offices within the city limits of Chicago, although some of the city offices had territories extending into the suburbs and some of the suburban offices’ territories extended into the city; in the Cleveland case the certified unit consisted of respondent’s six offices in the city as well as three offices in the suburbs; finally, in the instant case the unit certified was respondent’s single district office in Woonsocket, Rhode Island, out of the eight offices in the State and the 75 offices in respondent’s “New England Territory.” In addition to the instant case and the Sioux City case, the Board has certified single district offices in Western & Southern Life Ins. Co., 138 N. L. R. B. 538; Metropolitan Life Ins. Co. (Meriden and New London), 147 N. L. R. B. 69; Metropolitan Life Ins. Co. (Holyoke), 147 N. L. R. B. 688; Metropolitan Life Ins. Co. (Chicago Heights), 148 N. L. R. B. No. 145. See also Metropolitan Life Ins. Co. (Detroit), 146 N. L. R. B. 1577; Metropolitan Life Ins. Co. (Toledo), 146 N. L. R. B. 967; Equitable Life Ins. Co., 138 N. L. R. B. 529.

       See H. R. Rep. No. 245, 80th Cong., 1st Sess., 37-38; H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess., 48;. 93 Cong. Rec. 6444, 6860.

       See National Labor Relations Board, Twenty-Eighth Annual Report 51 (1963), which properly states this statutory test: “Although extent of organization may be a factor evaluated, under section 9 (c) (5) it cannot be given controlling weight.”

       The Board’s entire basis of decision on this issue in this case was set forth in the following footnote in its unit determination decision:
      “The Employer has eight district offices and two detached offices in Rhode Island, and has only one district office in Woonsocket. The nearest district office is located 12 miles away in Pawtucket. In the prior proceeding in Case No. 4-RC-4865, based on the same record incorporated by reference herein, we found that each of Employer’s individual district offices was in effect a separate administrative entity through which the Employer conducted its business operations, and therefore was inherently appropriate for purposes of collective bargaining. See Metropolitan Life Insurance Company, 138 NLRB . . , [565], Applying the tests set forth therein, we find that, since there is no recent history of collective bargaining, no union seeking a larger unit, and the district office sought is located in a separate and distinct geographical area, the employees located at the Woonsocket district office constitute an appropriate unit. See also Metropolitan Life Insurance Company, . . . [138] NLRB . . . [734].”
      The cases cited are the Board’s decisions in the Delaware and Sioux City cases discussed supra. They do not appear, because of their variant factual circumstances, to be direct authority for decision in this case. Moreover, the Board made no attempt to distinguish other cases, particularly the Chicago and Cleveland cases discussed supra, in which it certified different types of units. The unfair labor practice proceeding added nothing to the analysis, as the trial examiner did not review the issue, as he felt “bound by the Board’s ruling in the representation proceeding,” 142 N. L. R. B., at 492, and the Board affirmed the trial examiner’s ruling without discussion, id., at 491.

       Of course, the Board may articulate the basis of its order by reference to other decisions or its general policies laid down in its rules and its annual reports, reflecting its “cumulative experience,” Labor Board v. Seven-Up Co., 344 U. S. 344, 349, so long as the basis of the Board’s action, in whatever manner the Board chooses to formulate it, meets the criteria for judicial review. Cf. Swayne & Hoyt, Ltd. v. United States, 300 U. S. 297, 299, 304; Radio & TV Local 1264 v. Broadcast Serv., ante, p. 255.


author: Per Curiam.

text:
    JENKINS v. UNITED STATES.
    No. 761.
    Argued April 1, 1965.
    Decided April 5, 1965.

      H. Thomas Sisk argued the cause for petitioner. With him on the brief were M. Michael Cramer and David B. Isbell.

      Philip B. Heymann argued the cause for the United States. On the brief were Solicitor General Cox, Assistant Attorney General Miller and Philip R. Monahan.

   Per Curiam.

Petitioner was charged in a two-count indictment in the United States District Court for the District of Columbia with robbing a High’s Dairy Products store on December 27, 1962 (count 1), and with assault with intent to rob upon the proprietress of a grocery store on January 24, 1963 (count 2), in violation of §§ 22-2901 and 22-501, respectively, of the District of Columbia Code. Following a trial by jury, he was found guilty on count 1 and not guilty on count 2. He was sentenced to imprisonment for from 3 to 10 years. A divided Court of Appeals affirmed the conviction, 117 U. S. App. D. C. 346, 330 F. 2d 220. A petition for rehearing en banc was denied, four judges dissenting.

Slightly more than two hours after the jury retired to deliberate, the jury sent a note to the trial judge advising that it had been unable to agree upon a verdict “on both counts because of insufficient evidence.” The judge thereupon recalled the jury to the courtroom and in the course of his response stated that “You have got to reach a decision in this case.” We granted certiorari, 379 U. S. 944, to consider whether in its context and under all the circumstances of this case the statement was coercive. The Solicitor General in his brief in this Court stated:

“Of course, if this Court should conclude that the judge’s statement had the coercive effect attributed to it, the judgment should be reversed and the cause remanded for a new trial; the principle that jurors may not be coerced into surrendering views conscientiously held is so clear as to require no elaboration.”

Upon review of the record, we conclude that in its context and under all the circumstances the judge’s statement had the coercive effect attributed to it. Accordingly the judgment of the Court of Appeals is reversed and the cause remanded for a new trial. Cf. Brasfield v. United States, 272 U. S. 448, 450; Burton v. United States, 196 U. S. 283, 307-308; United States v. Rogers, 289 F. 2d 433, 435 (C. A. 4th Cir.)

It is so ordered.

Mr. Justice Clark and Mr. Justice Harlan dissent.


text:
    ABERNATHY et al. v. ALABAMA.
    No. 9.
    Argued October 12-13, 1964.
    Decided April 5, 1965.

      Louis H. Poliak argued the cause for petitioners. With him on the brief were Jack Greenberg, Constance Baker Motley, James M. Nabrit III, Fred D. Gray and Charles S. Conley.

      Leslie Hall, Assistant Attorney General of Alabama, argued the cause for respondent. With him on the brief was Richmond M. Flowers, Attorney General of Alabama.
   Per Curiam.

The judgments are reversed. Boynton v. Virginia, 364 U. S. 454.

Mr. Justice Black and Mr. Justice White took no part in the consideration or decision of this case.


text:
    CHICAGO & NORTH WESTERN RAILWAY CO. v. CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILROAD CO. et al.
    No. 21.
    Argued November 17, 1964.
    Decided April 5, 1965.

      John C. Danielson argued the cause for appellant. With him on the briefs was Jordan Jay Hillman.

      Frank M. Long argued the cause for appellees. With him on the brief were Philip H. Porter, R. K. Merrill and Richard R. Robinson.

      Solicitor General Cox, Assistant Attorney General Or-rick, Lionel Kestenbaum, Robert W. Ginnane and Arthur Cerra filed a memorandum for the United States and the Interstate Commerce Commission.
   Per Curiam.

The judgment is reversed. Texas & P. R. Co. v. Gulf, C. & S. F. R. Co., 270 U. S. 266, 278.


text:
    McKINNIE et al. v. TENNESSEE.
    No. 148.
    Argued March 8, 1965.
    Decided April 5, 1965.

      James M. Nabrit III argued the cause for petitioners. With him on the briefs were Jack Greenberg, Constance Baker Motley, Avon N. Williams, Z. Alexander Looby and Charles L. Black, Jr.

      Thomas E. Fox, Assistant Attorney General of Tennessee, argued the cause for respondent. With him on the brief was George F. McCanless, Attorney General of Tennessee.
   Per Curiam.

The judgment is reversed. Hamm v. City of Rock Hill and Lupper v. Arkansas, 379 U. S. 306.

Mr. Justice Stewart would vacate the judgment and remand the case to the Supreme Court of Tennessee for reconsideration in the light of supervening federal legislation, in accordance with the views expressed in his dissenting opinion in Hamm v. City of Rock Hill, 379 U. S. 306, 326.

Mr. Justice Black, Mr. Justice Harlan, and Mr. Justice White would affirm the judgment of the Supreme Court of Tennessee for the reasons stated in their dissenting opinions in Hamm v. City of Rock Hill, 379 U. S. 306, 318, 322, 327.


text:
    U. S. A. C. TRANSPORT, INC. v. UNITED STATES et al.
    No. 856.
    Decided April 5, 1965.

      Paul F. Sullivan for appellant.

      Solicitor General Cox, Assistant Attorney General Orrick, Robert B. Hummel, Jerry Z. Pruzansky, Robert W. Ginnane and Betty Jo Christian for the United States et al.
   Per Curiam.

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