source: Caselaw Access Project

author: Me. Justice Clark

license: Public Domain

text:
    KATZENBACH, ACTING ATTORNEY GENERAL, et al. v. McCLUNG et al.
    No. 543.
    Argued October 5, 1964.
    Decided December 14, 1964.

      Solicitor General Cox argued the cause for appellants. With him on the brief were Assistant Attorney General Marshall, Ralph S. Spritzer, Philip B. Heymann, Harold H. Greene and Gerald P. Choppin.

      Robert McDavid Smith argued the cause for appellees. With him on the briefs was William G. Somerville.

      Jack Greenberg, Constance Baker Motley, James M. Nabrit III and Charles L. Black, Jr., filed a brief for the NAACP Legal Defense and Educational Fund, Inc., as amicus curiae, urging reversal.

      T. W. Bruton, Attorney General of North Carolina, and Ralph Moody, Deputy Attorney General, filed a brief for the State of North Carolina, as amicus curiae, urging affirmance.
   Me. Justice Clark

delivered the opinion of the Court.

This case was argued with No. 515, Heart of Atlanta Motel v. United States, decided this date, ante, p. 241, in which we upheld the constitutional validity of Title II of the Civil Rights Act of 1964 against an attack by hotels, motels, and like establishments. This complaint for injunctive relief against appellants attacks the constitutionality of the Act as applied to a restaurant. The case was heard by a three-judge.United States District Court and an injunction was issued restraining appellants from enforcing the Act against the restaurant. 233 F. Supp. 815. On direct appeal, 28 U. S. C. §§ 1252, 1253 (1958 ed.), we noted probable jurisdiction. 379 U. S. 802. We now reverse the judgment.

1. The Motion to Dismiss.

The appellants moved in the District Court to dismiss the complaint for want of equity jurisdiction and that claim is pressed here. The grounds are that the Act authorizes only preventive relief; that there has been no threat of enforcement against the appellees and that they have alleged no irreparable injury. It is true that ordinarily equity will not interfere in such cases. However, we may and do consider this complaint as an application for a declaratory judgment under 28 U. S. C. §§ 2201 and 2202 (1958 ed.). In this case, of course, direct appeal to this Court would still lie under 28 U. S. C. § 1252 (1958 ed.). But even though Rule 57 of the Federal Rules of Civil Procedure permits declaratory relief although another adequate remedy exists, it should not be granted where, a special statutory proceeding has been provided. See Notes on Rule 57 of Advisory Committee on Rules, 28 U. S. C. App. 5178 (1958 ed.). Title II provides for such a statutory proceeding for the determination of rights and duties arising thereunder, §§ 204r-207, .and courts should, therefore, ordinarily refrain from exercising their jurisdiction in such cases.

The present - case, however, is in a unique position. The interference with , governmental action has occurred and the constitutional question is before us. in the companion case of Heart of Atlanta Motel as well as in this case. It is important that a decision on the constitutionality of the Act ás applied in these cases be announced as quickly as possible. For these reasons, we have concluded, with the above caveat, that' the denial of discretionary declaratory relief is not required here.

2. The Facts.

Ollie’s Barbecue is a family-owned restaurant in Birmingham, Alabama, specializing in barbecued meats and homemade pies, with a seating capacity of 220 customers. It is located on a state highway 11 blocks from an interstate one and a somewhat greater distance from railroad and bus stations. The restaurant caters to a family and white-collar trade with a take-out service for Negroes. It employs 36 persons, two-thirds of whom are Negroes.

In the 12 months preceding the passage of the Act, the restaurant purchased locally approximately $150,000 worth of food, $69,683 or 46% of which was meat that it bought from a local supplier who had procured it from outside the State. The District Court expressly found that a substantial portion of the food served in the restaurant had moved in interstate commerce. The restaurant has refused to serve Negroes in its dining accommodations since its original opening in 1927, and since July 2, 1964, it has been operating in violation of the Act. The court below concluded that if it were required to serve Negroes it would lose a substantial amount of business.

On the merits, the District Court held that , the Act could not be applied under the Fourteenth Amendment because it was conceded that the State of Alabama was not involved in the refusal of the restaurant to serve Negroes. It was also admitted that the Thirteenth Amendment was authority neither for validating nor for invalidating the Act. As to the Commerce Clause, the court found that it was “an express grant of power to Congress to regulate interstate commerce, which consists of the movement of persons, goods or information' from one state to another” ;• and it found that the clause was also a grant of power “to regulate intrastaté activities, but only to the extent that action on its part is necessary or appropriate to the effective execution of its expressly granted power to regulate interstate commerce.” There must be, it said, a close and substantial relation betweén local activities and interstate commerce which requires control of the former in the protection of the latter. The court concluded, however, that the Congress, rather than finding facts sufficient to meet this rule, had legislated! a conclusive presumption that a restaurant affects interstate commerce if it serves or offers to serve interstate travelers or if a substantial portion of the food which it serves has moved in commerce. This, the court held, it could not do because there was no demonstrable connection between food purchased in interstate commerce and sold in a restaurant and the conclusion of Congress that discrimination in the restaurant would affect that commerce.

The basic holding in Heart of Atlanta Motel, answers many of the contentions made by the appellees. There we outlined the overall purpose and operational plan of Title II and found it a valid exercise of the power to regulate interstate commerce insofar as it requires hotels and motels to serve transients without regard to their race or color. In this case we consider its application to restaurants which serve food a substantial portion of which has moved in commerce.

3. The Act As Applied.

Section 201 (a) of Title II commands that all persons shall be entitled to the full and equal enjoyment of the goods and services of any place of public accommodation without discrimination or segregation on the ground of race, color, religion, or national origin; and § 201 (b) defines establishments as places of public accommodation if their operations affect commerce or segregation by them is supported by state action. Sections 201 (b) (2) and (e) place any "restaurant . . . principally engaged in selling food for consumption on the premises” under the Act “if ... it serves or offers to serve interstate travelers or a substantial portion of the food which it serves . . . has moved in commerce.”

Ollie’s Barbecue admits that it is covered by these provisions of the Act. The Government makes no contention that the discrimination at the restaurant was supported by the State of Alabama. There is no claim that interstate travelers frequented the restaurant. The sole question, therefore, narrows down to whether Title II, as applied to a restaurant annually receiving about $70,000 worth of food which has moved in commerce, is a valid exercise of thé power of Congress. The Government has contended that Congress had ample basis upon which to find that racial discrimination at restaurants which receive from out of state a substantial portion of the food served does, in fact, impose commercial burdens of national magnitude upon interstate commerce. The appellees’ major argument is directed to this premise. They urge that no such basis existed. It is to that question that we now turn.

4. The Congressional Hearings.

As we noted in Heart of Atlanta Motel both Houses of Congress conducted prolonged hearings on the Act. And, as we said there, while no formal findings were made, which of course are not necessary, it is well that we niáke mention of the testimony at these hearings the better to understand the problem before Congress and determine whether the Act is a reasonable and appropriate means toward its solution. The record is replete with testimony of the burdens placed on interstate commerce by racial discrimination in restaurants. A comparison of per cap-ita spending by Negroes in restaurants, theaters, and like establishments indicated less spending, after discounting income differences, in areas where discrimination is widely practiced. This condition, which was especially aggravated in the South; was attributed in the testimony of the Under Secretary of Commerce to racial segregation. See Hearings before the Senate Committee on Commerce on 5. 1732, 88th Cong., 1st Sess., 695. This diminutive spending springing from a refusal to serve Negroes and their total loss as customers has, regardless of the absence of direct evidence, a close connection to interstate commerce. The fewer customers a restaurant enjoys the less food it sells and consequently the less it buys. S. Rep. No. 872, 88th Cong., 2d Sess., at 19; Senate Commerce Committee Hearings, at 207. . In addition, the Attorney General testified that this type of discrimination imposed “an artificial restriction on the market” and interfered with the flow of merchandise. Id., at 18-19; also, on this point, see testimony of Senator Magnuson, 110 Cong. Rec. 7402-7403. In addition, there were many references to 'discriminatory situations causing wide unrest and having a depressant effect on general business conditions in the respective communities. See, e. g., Senate Commerce Committee Hearings, at 623-630, 695-700, 1384-1385.

Moreover there was an impressive array of testimony that discrimination in restaurants had a direct and highly restrictive effect upon interstate travel by Negroes. This resulted, it was said, because discriminatory practices prevent Negroes from buying prepared food served on the premises while on a trip, except in isolated and unkempt restaurants and under most unsatisfactory and often unpleasant conditions. This obviously discourages travel and obstructs interstate commerce for one can hardly travel without eating. Likewise, it was said, that discrimination deterred professional, as well as skilled, people from moving into areas where such practices occurred and thereby caused industry to be reluctant to establish there. S. Rep. No. 872, supra, at 18-19.

We believe that this testimony afforded ample basis for. the conclusion that established restaurants in such areas sold less interstate goods because of the discrimination, that interstate travel was obstructed directly by it, that business in general suffered and that many new businesses refrained from establishing there as a result of it. Hence the District Court was in error in concluding that there was no connection between discrimination and the movement of interstate commerce. The court’s conclusion that such a connection is outside- “common experience” flies in the face of stubborn fact.

It goes without saying that, viewed in isolation, the volume of food purchased by Ollie’s Barbecue from sources supplied from out of state was insignificant when compared with the total foodstuffs moving in commerce: But, as our late Brother Jackson said for the Court in Wickard v. Filburn, 317 U. S. 111 (1942):

“That appellee’s own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial.” At 127-128.

We noted in Heart of Atlanta Motel that a number of witnesses attested to the fact that racial discrimination was not merely a state or regional problem but was one of nationwide scope. Against this background, we must conclude that while the focus of the legislation was on the individual restaurant’s relation to interstate commerce, Congress appropriately considered the importance of that connection with the knowledge that the discrimination was but “representative of many others throughout the country, the total incidence of which if left unchecked may well become far-reaching in its harm to commerce.” Polish Alliance v. Labor Board, 322 U. S. 643, 648 (1944).

With this situation spreading as the record shows, Congress was not required to await the total dislocation of commerce. As was said in Consolidated Edison Co. v. Labor Board, 305 U. S. 197 (1938):

“But it cannot be maintained that the exertion of federal power must await the disruption of that commerce. Congress was entitled to provide reasonable preventive measures and that was the object of the National Labor Relations Act.” At 222.

5. The Power of Congress to Regulate Local Activities.

Article I, § 8, cl. 3, confers upon Congress the power “[t]o regulate Commerce . . . among the several States” and . Clause 18 of the same Article grants it the power “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers . . . .” This grant, as we have pointed out in Heart of Atlanta Motel “extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce.” United States v. Wrightwood Dairy Co., 315 U. S. 110, 119 (1942). Much is said about a restaurant business being local but “even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce . . . .” Wickard v. Filburn, supra, at 125. The activities that are beyond the reach of Congress are “those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government.” Gibbons v. Ogden, 9 Wheat. 1, 195 (1824). This rule is as good today as it was when Chief -Justice Marshall laid it down almost a century and a half ago.

This Court has held time and again that this power extends to activities of retail establishments, including restaurants, which directly or indirectly burden or obstruct interstate commerce. We have detailed-the cases in Heart of Atlanta Motel, and will not repeat them here.

Nor are the cases holding that interstate commerce ends when goods come to rest in the State of destination apposite here. That line of cases has been applied with reference to state taxation or regulation but not in the field of federal regulation.

The appellees contend that Congress has arbitrarily created a conclusive presumption that all restaurants meeting the criteria, set out in the Act “affect commerce.” Stated another way, they object to the omission of a provision for a case-by-case detérmination — judicial or administrative — rthat racial discrimination in a particular restaurant affects commerce.

But Congress’ action in framing this Act was not unprecedented. In United States v. Darby, 312 U. S. 100 (1941), this Court held constitutional the Fair Labor Standards Act of 1938. There Congress determined that the payment of substandard wages to employees engaged in the production of goods for commerce, while not itself commerce, so inhibited it as to be subject to federal regulation. The appellees in that case argued, as do the appellees here, that the Act was invalid because it included no provision for an independent inquiry regarding the effect on commerce of substandard wagés in a particular business. (Brief for appellees, pp. 76-77, United States v. Darby, 312 U. S. 100.) But the Court rejected the argument, observing that:

“[S]ometimes Congress itself has said that a particular activity affects the commerce, as it did in the present.Act, the Safety Appliance Act and the Railway Labor Act. In passing on the validity of legislation of the class last mentioned the only function of courts is to determine whether the particular activity regulated or prohibited is within the reach of the federal power.” At 120-121.

Here, as there, Congress has determined for itself that refusals of service to Negroes have imposed burdens both upon the interstate flow of food and upon the movement of products generally. Of course, the mere fact that Congress has said when particular activity shall be deemed to affect commerce does not preclude further examination by this Court. But where we find that the legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end. The only remaining question — one answered in the affirmative by the court below — is whether the particular restaurant either serves or offers to serve interstate travelers or serves food a substantial portion of which has moved in interstate commerce.

The appellees urge that Congress, in passing the Fair Labor Standards Act and the National Labor Relations Act, made specific findings which were embodied in those statutes. Here, of course, Congress has included no formal findings. But their absence is not fatal to the validity of the statute, see United States v. Carotene Products Co., 304 U. S. 144, 152 (1938), for the evidence presented at the hearings fully indicated the nature and effect of the burdens on commerce which Congress meant to alleviate.

Confronted as we are with the facts laid before Congress, we must conclude that it had a rational basis for finding that racial discrimination in restaurants had a direct and adverse effect on the free flow of interstate commerce. Insofar as the sections of the Act here relevant are concerned, §§201 (b)(2) and (c), Congress prohibited discrimination only in those establishments having a close tie to interstate commerce, i. e., those, like the McClungs’, serving food that has come from out of the State. We think in so doing that Congress acted well within its power to protect and foster commerce in extending the coverage of Title II only to those restaurants offering to serve interstate travelers or serving food, a substantial portion of which has moved in interstate commerce.

The absence of direct evidence connecting discriminatory restaurant service with the flow of interstate food, a factor on which the appellees place much reliance, is not, given the evidence as to the effect of such practices on other aspects of commerce, a crucial matter.

The power of Congress in this field is-broad and sweeping; where it keeps within its sphere and violates no express constitutional limitation it has been the rule of this Court, going back almost to the founding days of the Republic, not to interfere. The Civil Rights Act of 1964, as here applied, we find to be plainly appropriate in the resolution of what the Congress found to be a national commercial problem of .the first magnitude. We find it in no violation of any express limitations of the Constitution and we therefore declare it valid.

The judgment js therefore

Reversed.

[For concurring opinion of Mr. Justice Black, see ante, p. 268.]

[For concurring opinion of Mr. Justice Douglas, see ante, p. 279.]

[For concurring opinion of Mr. Justice Goldberg, see ante, p. 291.]

       That decision disposes of the challenges that the appellees base on the Fifth, Ninth, Tenth, and Thirteenth Amendments, and on the Civil Bights Cases, 109 U. S. 3 (1883).

       52 Stat. 1060, 29 U. S. C. § 201 et seq. (1958 ed.).

       49 Stat. 449, as amended, 29 U. S. C. § 151 et seq. (1958 ed.b


author: Mr. Justice Clark Mr. Justice Douglas, Mr. Justice Black, Me. Justice Hablan, Mr. Justice Stewaet, Mr. Justice White,

text:
    HAMM v. CITY OF ROCK HILL.
    No. 2.
    Argued October 12, 1964.
    Decided December 14, 1964.

      Jack Greenberg argued the cause for petitioner in No. 2. Constance Baker Motley argued the cause for petitioners in No. 5. With them on the brief were James M. Nabrit III, Charles L. Black, Jr., Matthew J. Perry, Lincoln C. Jenkins, Donald James Sampson, Willie T. Smith,- Jr., Harold B. Anderson, Wiley A. Branton, William T. Coleman, Jr., and Marvin E. Frankel.

      Daniel R. McLeod, Attorney General of South Carolina, argued the cause for respondent in No. 2. With him on the brief was Everett N. Brandon, Assistant Attorney General of South Carolina.

      Jack L. Lessehberry, Chief Assistant Attorney General of Arkansas, argued the cause for respondent in No. 5. With him on the brief was Bruce Bennett, Attorney . General of Arkansas.

       Together with No. 5, Lupper et al. v. Arkansas, on certiorari- to the Supreme Court of Arkansas.

   Mr. Justice Clark

delivered the opinion of the Court.

These are “sit-in” cases that came here from the highest courts of South Carolina and Arkansas, respectively. Each of those courts affirmed convictions based upon state' trespass statutes against petitioners, who are Negroes, for participating in “sit-in” démonstrations in the luncheon facilities of retail stores in their respective States^ We granted certiorari in each of the cases, 377 U. S. 988, 989, and consolidated them for argument. The petitioners asserted both in the state courts and here the denial of rights, privileges, and immunities secured by the Fourteenth Amendment; in addition, they claim here that the Civil Rights Act of 1964, 78 Stat. 241, passed subsequent to their convictions and the affirmances thereof in the state courts, abated these actions.

1. The Facts.

In No. 2, Hamm v. Rock Hill, the petitioner, and a companion who is now deceased, entered McCrory’s variety store at Rock Hill, South Carolina. After making purchases in other parts of the store, they proceeded to the lunch counter and sought service. It was refused. The manager asked the petitioner and his associate to leave and when they refused he called the police. They were prosecuted and convicted under § 16-388 of the S. C. Code of Laws, making it an offense for anyone to enter a place of business after having been warned not to do so or to refuse to leave immediately after having entered therein. Petitioner’s companion died subsequently. The conviction of petitioner was affirmed by both the Court of General Sessions and the Supreme' Court of South Carolina, 24Í S. C. 420, 128 S. E. 2d 907 (1962).

Lupper v. Arkansas, No. 5, involves a group of Negroes who entered the department store of Gus Blass Company in Little Rock. The group went to the mezzanine tearoom of the store at the busy luncheon hour, seated themselves and requested service which was refused. Within a few minutes the group, including petitioners, was advised that Blass reserved the right to refuse service to anyone and was not prepared to serve them at that time. Upon being requested to leave, the petitioners refused. The police officers who were summoned located petitioners on the first floor of the store and arrested them. The officers’ testimony that petitioners admitted the whole affair was denied. The prosecutions in the Little Rock Municipal Court resulted in convictions -of petitioners based upon § 41-1433, Ark. Stat. Ann. (1964 Repl. Yol.), which prohibits a person from remaining on the premises of a business establishment after having been requested to leave by the owner or manager thereof. On appeal to the Pulaski Circuit Court, a trial de novo resulted in verdicts of guilty and the Arkansas Supreme Court affirmed, 236 Ark. 596, 367 S. W. 2d 750 (1963), sub nom. Briggs v. State.

We hold that the convictions must be vacated and the prosecutions dismissed. The Civil Rights Act of 1964 forbids discrimination in places of public accommodation and removes peaceful attempts to be served on an equal basis from the category of punishable activities. Although the conduct, in the present cases occurréd prior to enactment of the Act, the still-pending convictions are abated by its passage.

2. Application of Title II of the Civil Rights Act of 1964 to the Facts Here.

We treat these cases as involving' places of public accommodation covered by the Civil Rights Act of 1964. Under that statute, a place of public- accommodation is defined to include one which serves or offers to serve interstate travelers. Applying the rules of §§ 201 (b) (2), (c) we find that each of them offers to serve interstate travelers. In Hamm it is not denied that the lunch counter was in a McCrory’s 5-and-10-cent store, a large variety store at Rock Hill belonging to a national chain, which offers to • sell thousands of items to the public; that it invites all members of the public into its premises to do business and offers to serve all persons, except at its lunch counter which is restricted to white persons only. There is no contention here that it does not come within the Act. Likewise in Lupper the lunch counter area, called a tearoom, is located within and operated by the Gus Blass Company’s department store at Little Rock. It is a large department store dealing extensively in interstate commerce. It appears from the record that it also offered to serve all persons coming into its store but limited its lunch counter service to white persons. On argument it was frankly admitted that the lunch counter operation “probably would” come under the Act. Finally, neither respondent asks for a remand to determine the facts as to coverage of the respective lunch counters. In the light of such a record and the legislative history indicating that Congress intended to cover retail store lunch counters, See 110 Cong. Rec. 1519-1520, we hold that the Act covers both the McCrory and the Blass lunch counter operations.

3. The Provisions of the Act.

Under the Civil Rights Act, petitioners’ conduct could not be the subject of trespass prosecutions, federal or state, if it had occürred after the enactment of the statuté.

Title II includes several sections, some of which are relevant here, that create federal statutory rights. The first is § 201 (a) declaring that “[a]ll persons shall be entitled to the full and equal enjoymént of the goods, services, fácilities, privileges, advantages, and accommodations of any place of public accommodation,” which, as we have found includes the establishments here involved. Next, § 203 provides:

“No person shall (a) withhold, deny, or attempt to. withhold or deny, or deprive or attempt to deprive, any person of any right or privilege secured by section 201 or 202, or (b) intimidate, threaten, or coerce, or attempt to intimidate,, threaten, or coerce any person with the purpose of interfering with any right or privilege secured by section 201 or 202, or (c) punish or attempt to punish any person for exercising or attempting to exercise any right or privilege secured by section 201 or 202.” (Emphasis supplied.)

On its face, this language prohibits prosecution of any person for seeking service in a covered establishment, because of his race or color. It has been argued, however, that victims of discrimination must make use of the exclusive statutory mechanisms for the redress of grievances, and not resort to extralegal means. Although we agree that the law generally condemns self-help, the language of § 203 (c) supports a conclusion that nonforcible attempts to gain admittance to or remain in establishments covered by the Act, are immunized from prosecution, for the statute speaks of exercising or attempting to exercise a “right or privilege” secured by its earlier provisions. The availability of the Act as a defense against punishment is not limited solely to those who pursue the statutory remedies. The legislative history specifically notes that the Act would be a defense to criminal trespáss, breach of the peace and similar prosecutions. Senator Humphrey, floor manager of the bill in the Senate, said in explaining the bill:

“This plainly means that a defendant in a criminal trespass, breach of the peace, or other similar case can assert the rights created by 201 and 202 and that State courts must entertain defenses grounded upon these provisions. . . .” 110 Cong. Rec. 9767.

In effect the Act prohibits the application of state laws in a way that would deprive any person of the rights granted under the Act. The Supremacy Clause, Art. VI, cl. 2, requires this result where “there is a.clear collision” between state and federal law, Kesler v. Department of Safety, 369 U. S. 153, 172 (1962), or a conflict between. federal law and the application of an otherwise valid state enactment, Hill v. Florida, 325 U. S. 538 (1945). There can be no question that this was the intended result here in light of §203 (c). The present convictions and the command of the Civil Rights Act of 1964 are clearly in direct conflict. The only remaining question is the effect, of the Act on judgments rendered, but not finalized, before its passage.

4. Effect of the Act upon the Prosecutions.

Last Term, in Bell v. Maryland, 378 U. S. 226, we noted the existence of a body of federal and state law to the effect that convictions on direct review at the time the conduct in question is rendered no longer unlawful by statute, must abate. We consider first the effect the Civil Rights Act would have on petitioners’ convictions if they had been federal convictions, and then,the import of the fact that these are state and not federal convictions. We think it is clear that the convictions, if federal, would abate.

The doctrine found its earliest expression in Chief Justice Marshall’s opinion in United States v. Schooner Peggy, 1 Cranch 103, 110 (1801):

“But if subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. If the law be constitutional ... I know of no. court which' can contest its obligation. It is true that in mere private cases between individuals, a court will and ought to struggle hard against a construction which will, by a retrospective operation, , affect the rights of parties, but in great national concerns . . . [the law] ought always to receive a construction conforming to its manifest import .... In such a case the court must* decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside."

Although the decision in that case arguably rested on the premise that appeals in admiralty were trials de novo, and that prize litigation applied the law of the time of trial, see Yeaton v. United States, 5 Cranch 281, 283 (1809); Maryland v. Baltimore & O. R. Co., 3 How. 534, 552 (1845); United States v. Tynen, 11 Wall. 88, 95 (1871); United States v. Reisinger, 128 U. S. 398, 401 (1888); United States v. Chambers, 291 U. S. 217, 222-223 (1934); Massey v. United States, 291 U. S. 608 (1934), the later cases applied the rule in quite different contexts, see United States v. Tynen, supra; United States v. Reisinger, supra. The reason for the rule was stated by Chief Justice Hughes, in United States v. Chambers: “Prosecution for crimes is but an application or enforcement of the law, and if the prosecution continues the law must continue to vivify it.” 291 U. S. 217, at 226. Although Chambers specifically left open the question of the effect of its rule on cases where final judgment was rendered prior to ratification of the Twenty-first Amendment, and petition for certiorari sought thereafter, such an extension of the rule was taken for granted in the per curiam decision in Massey v. United States, supra, handed down shortly after Chambers.

It is apparent that the rule exemplified by Chambers does not depend on the imputation of a specific intention to Congress in any particular statute. None of the cases cited drew on any reference to the problem in the legislative history or the language of the statute. Rather, the principle takes the more general form of imputing to Congress an intention to avoid inflicting punishment at a time when it can no longer further any legislative purpose, and would be unnecessarily vindictive. This general principle, expressed in the rule, is to be read wherever applicable as part of the background against which Congress acts. Thus, we deem it irrelevant that Congress made no allusion to the problem in enacting the Civil Rights Aclt.

Nor do we believe that the provisions of the federal saving statute, 61 Stat. 635, 1 U. S. C. § 109 (1958 ed.), would nullify abatement of a federal conviction. In Chambers, a case where the cause for punishment was removed by a repeal of the constitutional basis for the punitive statute, the Court was quite certain as to this. See 291 Ü. S., at 224 and n. 2, involving.the identical statute. The federal saving statute was originally enacted in 1871, 16 Stat. 432. It was meant to obviate mere technical abatement, such as that illustrated by the application of the rule in Tynen decided in 1871. There a substitution of a new statute with a greater schedule of penalties was held to abate the previous prosecution. In contrast, the Civil Rights Act works no such technical abatement. It substitutes a right for a crime. So drastic a change is well beyond the narrow language of amendment and repeal. It is clear, therefore, that if the convictions were under a federal statute they would be' abated.

We believe the fact that the convictions were under state statutes is in these cases a distinction without a difference. We cannot believe the Congress, in enacting-such a far-reaching and comprehensive scheme, intended the Act to operate less effectively than the run-of-the-mill repealer. Since the provisions of the Act would abate all federal prosecutions it follows that the same rule must prevail under the Supremacy Clause which requires that a contrary state practice or state statute must give way. Here the Act intervened before either of the judgments under attack was finalized. Just as in federal cases abatement must follow in these state prosecutions. Rather than a retroactive intrusion into state criminal law this is but the application of a long-standing federal rule,.namely, that since the Civil Rights Act substitutes a right for a crime any state statute, or its application, to the contrary must by virtue of the Supremacy Clause give way under the normal abatement rule covering pending convictions arising out of a pre-enactment activity. The great purpose of the civil rights legislation was to obliter- . ate the effect of a distressing chapter of our history. This demands no less than the application of a normal rule, of statutory construction to strike down pending convictions inconsistent with the purposes of the Act.

Far from finding a bar to the application of the rule where a state statute is. involved, we find that our construction of the effect of the Civil Rights Act is more than statutory. It is required by the Supremacy Clause of the Constitution. See Kesler v. Department of Safety, 369 U. S. 153, 172 (1962); Hill v. Florida, 325 U. S. 538 (1945). Future state prosecutions under the Act being unconstitutional and there being no saving clause in the Act itself, convictions for pre-enactment violations would be equally unconstitutional and abatement necessarily follows.

Nor do we find persuasive reasons for. imputing to the Congress an intent to insulate such prosecutions. As we have said, Congress, as well as the two Presidents who recommended the legislation, clearly intended to eradicate an unhappy chapter in our history. The peaceful conduct for which petitioners were prosecuted was on.behalf of a principle since embodied in the law of the land. The convictions were based on the theory that the rights of a property owner had been violated. However, the supposed right to discriminate on the basis of race, at least in covered establishments, was nullified by the statute. Under such circumstances the actionable nature of the acts in question must be viewed in the light of the statute .and its legislative purpose.

We find yet another reason for applying the Chambers rule of construction. In our view Congress clearly had the power to extend immunity to pending prosecutions. Some might say that to permit these convictions to stand would have no effect on interstate commerce which we have held justified the adoption of the Act. But even if this be true, the principle of abatement is so firmly imbedded in our jurisprudence as to be a necessary and proper part of every statute working a repealer of criminal legislation. Where Congress sets out to regulate a situation within its power, the Constitution 'affords it a wide choice of remedies. This being true, the only question remaining is whether Congress exercised its power in the Act' to abate the prosecutions here. If we held that it did not we would then have to pass on the constitutional question of whether the Fourteenth Amendment, without the benefit of the Civil Rights Act, operates of its own force to bar criminal trespass convictions, where, as here, they are used to enforce a pattern of racial discrimination. As we have noted, some of the Justices joining this opinion believe that the Fourteenth Amendment does so operate; others are of the contrary opinion. Since this point is not free from, doubt, and since as we have found ■ Congress has ample power to extend the statute to pending convictions we avoid that question by favoring an interpretation of the statute which renders a constitutional decision unnecessary.

In short, now that Congress has exercised its constitutional power in enacting the Civil Rights Act of 1964 and declared that the public policy of our country is to prohibit discrimination in public accommodations as therein defined, there is no public interest to be served in the further prosecution of the petitioners. And in accordance with the long-established rule of our cases they must be abated and the judgment in each is therefore vacated and the charges are ordered dismissed.

It is so ordered.

Mr. Justice Douglas,

whom Mr. Justice Goldberg joins,

concurring.

Some of my Brethren raise constitutional doubts about the power of Congress to nullify the convictions of sit-in demonstrators for violation of state trespass laws prior to the passage of the Civil Rights Act of 1964. My Brother Harlan observes that it is difficult to see, in the absence of any evidence in the legislative record of the Act, how “giving effect to past state trespass convictions would result in placing any burden on present interstate' commerce,” post, p. 325. I merely note here that, in joining the opinion of the Court, I am faced with no such difficulty. That is because, as my Brother Goldberg and I said in our respective concurring opinions in Heart of Atlanta Motel, Inc. v. United States, ante, pp. 291, 279, Congress has, in passing this Act, not merely sought to remove burdens from interstate commerce; it has also sought to protect and enforce the Fourteenth Amendment right - to be free of discriminatory treatment, based on race, in places of public accommodation. It is certainly not difficult to see how Congress could appropriately conclude that all state interference with the exercise of this right should come to a halt on the passage of the Act, that the States should not ‘be permitted to insist on punishing one whose only “crime” was assertion of a constitutional right, albeit prior to the enactment of the present legislation, and that this Court should not put its imprimatur on such state prosecutions, whenever they arose.

Mr. Justice Black,

dissenting.

The Civil Rights Act of 1964, validly, I think, made it unlawful for certain restaurants thereafter to refuse to serve food tó colored people because of their color. The Court now interprets the Act as a command making it unlawful for the States to prosecute and convict “sit-in” demonstrators who had violated valid state trespass laws prior to passage of the federal Act. The idea that Congress has power to accomplish such a result has no precedent, so far as I know, in the nearly 200 years that Congress has been in existence.

The record shows that the two petitioners in Lupper, No. 5, were part of a group of persons who went to a department store tearoom, seated themselves at tables and at the counter as part of a “sit-in” demonstration, and refused to leave when asked to do so. The Court says that this conduct “could not be the subject of trespass prosecutions, federal or state, if it had occurred after the enactment of the statute.” I do not understand from what the Court says that it interprets those provisions of the Civil Rights Act which give a right to be served without discrimination in an establishment which the Act covers as also authorizing persons who are unlawfully refused service a “right” to take the law into their own hands by sitting down and occupying the premises for as long as they choose to stay. I think one of the chief purposes of the 1964 Civil Rights Act was to take such disputes out of the streets and restaurants and into the courts, which Congress has granted power to provide an adequate and orderly judicial remedy.

Even assuming, however, that the Civil Rights Act Was intended to let people who enter restaurants take the law into their own hands by forcibly remaining when service is refused them, this would be no basis for holding that Congress also meant to compel States to abate convictions like these for lawless conduct occurring before the Act-was passed. See Bell v. Maryland, 378 U. S. 226, 318 (dissenting opinion). The judge-made “common law rule” of construction on which the Court relies has been applied heretofore only where theré was a repeal of one statute by another — not, as my Brother Harlan points out, where as here a later law passed by Congress places certain restrictions on the operation of the still valid law of a "State. But even if the old common-law rule of construction taken alone would otherwise have abated these convictions, Congress nearly a century ago passed a “saving” statute, 1 Ü. S. C. § 109 (1968 ed.), to keep courts from imputing to it an intent to abate cases retroactively, unless such an intent was expressly stated in the law it passed. That statute says:

“The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force,for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability. . . .”

The purpose of this statute is plain on its face — it was to prevent courts from imputing to Congress an intent which Congress never entertained. This was. broad, remedial legislation, see Great Northern R. Co. v. United States, 208 U. S. 452; United States v. Reisinger, 128 U. S. 398; United States v. Ulrici, 3 Dillon 532, 28 Fed. Cas. 328 (No. 16,594) (C. C. E. D. Mo.) (opinion of Mr. Justice Miller on circuit), and by any fair reading it is broad enough to wipe out any and every application of the common-law rule which it was designed to do away with, unless judge-made rules of construction have some sort of superiority over congressionally enacted statutes. In United States v. Chambers, 291 U. S. 217, and Massey v. United States, 291 U. S. 608, the only cases which the Court cites as authority for disregarding the federal saving statute, this Court made clear that the saving statute was not involved in any way since the abatement there was by force of the Twenty-first Amendment, and of course an' amendment to the Constitution supersedes an Act of Congress, See 291 U. S., at 223-224. By today’s discovery of a “long-established rule of our cases,” the Court has now put back on Congress the burden of spelling out expressly, statute by statute, in laws passed hereafter that it does not want to upset convictions for past crimes, a burden which Congress renounced nearly 100 years ago and which it did not know it had when it passed the 1964 Act.

Furthermore, I have grave doubt about the power of Congress acting under the Commerce Clause and the Necessary and Proper Clause to take the unprecedented step of abating these past state convictions. Yet the Court judicially declares that “there is no public interest to be served” in upholding the convictions of these trespassers, á conclusion of policy which I had thought was only for legislative bodies to decide. See Ferguson v. Skrupa, 372 U. S. 726.

In the early days of this country this Court did not so lightly intrude upon the criminal laws of a State. In Cohens v. Virginia, 6 Wheat. 264, 443, decided in 1821, Chief Justice John Marshall speaking for the Court said:

“To interfere with the penal laws of a State, where they are not levelled against the legitimate, powers of the Union, but have for their sole object the internal government of the country, is a very serious measure, which Congress cannot be supposed to adopt lightly, or inconsiderately. The motives for it must be serious and weighty. It would be .taken deliberately, and the intention would be clearly and unequivocally expressed.
“An act, such as that under consideration, ought not, we' think, to be so construed as to imply this intention, unless' its provisions were such as to render the construction inevitable.”

Nothing in the language or history of the 1964 Act makes the Court’s reading into it of a purpose to interfere with ■state laws “inevitable” or even supportable, nor in any way justifies the Court’s offhand assertion that it is carrying out the “legislative purpose.” For I do not find one paragraph, one sentence, one clause, or one word in the 1964 Act on which the most strained efforts of the most fertile imagination could support such a conclusion. And in what is perhaps the most extensive and careful legislative history ever compiled, dealing with one of the most thoroughly discussed and debated bills ever passed by Congress, a history including millions and millions of words written on tens of thousands of pages contained in volumes weighing well over half a hundred pounds, in which every conceivable aspect and application of the 1964 Act were discussed ad infinitum, not even once did a single sponsor, proponent or opponent of the Act intimate a hope or express a fear that the Act was intended to have the effect which the Court gives it today.

Me. Justice Hablan,

dissenting.

The Court holds that these state trespass convictions, occurring before the passage of the Civil Rights Act of 1964, must be set aside by virtue of the federal doctrine of criminal abatement. This remarkable conclusion finds no support in reason or authority.

The common-law rule of abatement is basically a canon of construction conceived by the courts as a yardstick for determining whether a legislature, which has enacted a statute making conduct nohcriminal which was proscribed by an earlier criminal statute, also intended to put an end to nonfinal convictions under the former legislation. In effect, the doctrine of abatement establishes a presumption that such was the purpose of the legislature in the absence of a demonstrated contrary intent, as evidenced, for example, in the case of congressional enactments by the federal saving statute,. see United States v. Reisinger, 128 U. S. 398. As was said in United States v. Tynen, 11 Wall. 88, 95:

“By the repeal of the 13th section of the act of 1813 all criminal proceedings taken under it fell. There can be no legal conviction, nor any valid judgment pronounced upon conviction, unless the law creating the offence be at the time in existence. By the repeal the legislative will is expressed that no further proceedings be had under the act repealed.”

The doctrine has its origins in the English common law, see, e. g., Rex v. Cator, 4 Burr. 2026, 98 Eng. Rep. 56; King v. Davis, 1 Leach Crown Cases 306 (3d ed.), 168 Eng. Rep. 238, and has been embraced in American state and federal jurisprudence.

The abatement doctrine serves a useful and appropriate purpose in a framework of the legislation of a single political sovereignty. The doctrine strikes a jarring note, however, when, it is applied so as to affect the legislation of a different sovereignty, as the federal doctrine is now used to abate these state convictions. Our federal system tolerates wide differences between state and federal legislative policies, and the presumption of retroactive exculpation that readily attáches to a federal criminal statute which unreservedly repeals earlier federal legislation cannot, in my opinion, be automatically thought to embrace exoneration from earlier wrongdoing under a state statute.

I know of no case which suggests that the doctrine of abatement can be applied to affect the existing legislation of another jurisdiction. Until today the dofetrine has always been applied only with respect to legislation of the same sovereignty, e. g., Rex v. Cator, supra; King v. Davis, supra; United States v. Tynen, supra; Yeaton v. United States, 5 Cranch 281. And all of the cases relied on by the Court are of. that character.

The Supremacy Clause cannot serve as a vehicle for extending- the federal doctrine of abatement beyond proper bounds. That provision of the Constitution would come into play only if it appeared from the Civil Rights Act itself or from its legislative history and setting that Congress’ purpose was to displace past as well as prospective applications of state laws touching upon the matters with which the federal statute is concerned. For me, this would have to be made to appear in unmistakable terms, for such a purpose would represent an exercise of federal legislative power wholly unprecedented in our history. .

I entirely agree with my Brother Black’s poignant observations on this score; there is not a scintilla of evidence which remotely suggests that Congress had any such revolutionary course in mind. Section 1104 of the Civil Rights Act indeed provides that nothing in the statute is to be “construed as invalidating any provision of State law unless . . . inconsistent with any of the jaur-poses of this Act, or any provision thereof.” Whether or not state trespass laws as applied to “racial trespasses” occurring after the effective date of the Civil Rights Act are to be deemed inconsistent with the provisions of § 203 (c) of the Act, a question which I find unnecessary to decide at this juncture, there is certainly no such plain inconsistency between § 203 (c) and state trespass laws as applied in those situations arising before the passage of the Civil Rights Act as would justify this Court’s attributing to Congress a purpose to pre-empt state law in such instances.

Moreover, the contrary conclusion would confront us with constitutional questions of the gravest import, for the legislative record is barren of any evidence showing that giving effect to past state trespass convictions would result in placing any burden on present interstate commerce. Such evidence, at the very least, would be a prerequisite to the validity of any purported exercise of the Commerce power in this regard. See Heart of Atlanta Motel, Inc. v. United States, ante, p. 241; Katzenbach v. McClung, ante, p. 294. There is, indeed, nothing to indicate that Congress even adverted to such a question.

Finally, the Court’s decision cannot be justified under the rule of avoidance of constitutional questions, see Court’s opinion, ante, p. 316. That rule does not reach to the extent .of enabling this Court to fabricate nonconsti-tutional grounds of decision out of whole cloth.

“ 'A statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional, but also grave doubts upon that score.’ United States v. Jin Fuey Moy, supra [241 U. S. 394, 401]. But avoidance of a difficulty will not be pressed to the point of disingenuous evasion.” Moore Ice Cream Co. v. Rose, 289 U. S. 373, 379 (Cardozo, J.).

Concluding that these trespass convictions are not abated, I would affirm the judgments in both of these cases for the reasons given by Mr. Justice Black in his dissenting opinion in Bell v. Maryland, 378 U. S. 226, 318, in which I joined.

Mr. Justice Stewaet,

dissenting.

The chief difference between these cases and Bell v. Maryland, 378 U. S. 226, is that here federal rather than state legislation has intervened while the convictions were under review. As I understand the Court’s opinion, it first asserts that, if these had been federal convictions, the passage of the Civil Rights Act would have abated them under principles of federal decisional law. It then proceeds to apply those asserted principles to these state convictions through the Supremacy Clause of the Constitution. If I thought that Congress had provided that such nonfinal state convictions are to be abated, I would find no constitutional difficulty in joining the Court’s disposition of these cases under the Supremacy Clause. But Congress was silent on the subject, and I am unable to subscribe to the Court’s reasoning.

In Bell v. Maryland, we said that a State’s abatement policy was for the State to determine. Arkansas and South Carolina might hold that this supervening federal legislation provides a compelling reason to abate these proceedings, but I can find nothing in the legislation or in the Constitution which requires these States to do so.

We found in Bell that the law of Maryland was “open and arguable” on the issue of abatement. The law of Arkansas and South Carolina is no clearer. Like Maryland, Arkansas has' a saving statute similar to the federal counterpart. And like Maryland, South Carolina apparently has a policy favoring abatement when state criminal statutes are repealed while prosecutions are pending. See State v. Spencer, 177 S. C. 346, 181 S. E. 217.

For the reasons stated in the Court’s opinion in Bell v. Maryland, I would vacate the judgments and remand the cases to the state courts for reconsideration in the light of the supervening federal legislation.

Mr. Justice White,

dissenting.

Absent the Civil Rights Act there was, in my view, no constitutional infirmity in the state court convictions. Bell v. Maryland, 378 U. S. 226, 318 (dissenting opinion of Mr. Justice Black). And if Congress had the power to abate these convictions I am confident it had no intent of exercising it by passing the new law. There is nothing but silence to indicate that Congress meant to void outstanding judgments of state courts. I would not, for several reasons, read so much into nothing as the Court attempts to do.

It is wrong to impute to the silence of Congress an unusual and unprecedented step which at the very least poses constitutional problems of some import. By the time the Act was passed, Bell v. Maryland, supra, had forcefully raised the whole question of the status of previous convictions after a change in the law. I cannot believe, with that case on the books, remitting the matter to the state courts as it did, Congress would have left unstated.its intention to erase all state court trespass judgments then on appeal in the courts. Moreover, the common-law presumption of abatement was reversed by 1 U. S. C. § 109 (1958 ed.), which stands as the most relevant indicator of congressional intention in situations like this. Congressional silence in these circumstances seems to me to point to the conclusion exactly opposite to that reached by the Court.

Finally, had Congress intended to ratify massive disobedience to the law, so often attended by violence, I feel sure it would have said so in unmistakable language. The truth is that it is only judicial rhetoric to blame this result upon Congress. Given a discernable. congressional decision, I would be happy to follow it, as it is our task to do, absent constitutional limitations. But without it we have another case. Whether persons or groups should engage in nonviolent disobedience to laws with which they disagree perhaps defies any categorical answer for the guidance of every individual in every circumstance. But whether a court should give it wholesale sanction is a wholly different question which calls for only one answer.

       Section 201:
      “(b) Each of the following establishments which serves the public is a place of public accommodation within the meaning of this title if its operations affect commerce . . .
      “(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally ’ engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment . . .
      “(c) The operations of an establishment affect commerce within the meaning of this title if ... it serves or offers to serve interstate travelers . . . .”

       In Lupper the State’s brief says, “a remand of these cases would not reap any . . . benefits.” At 13.

       Some of us believe that the substantive rights granted by the Act here, i: e., freedom from discrimination in places of public accommodation are also included in the guarantees of the Fourteenth Amendment, see concurring opinions in Bell v. Maryland, 378 U. S. 226; others take the position that the Amendment creates no such substantive rights, see dissenting opinion in Bell v. Maryland, supra. No such question, is involved here, and we do not pass upon it in any manner. We deal only with the statutory rights created in the Act.

       In Bell v. Maryland, supra, we dealt with the problem arising when a state enactment intervened prior to the finalizing of. státe criminal trespass convictions. Because we were dealing with the effect of a state statute on a state conviction prior to the Act’s passage we felt that the state courts should be allowed to pass on the question. Here, we have an intervening federal statute and in attempting to judge its effect on a state conviction we are faced with a federal not a state question. Because of this distinction we do not feel that remand is esquired or desirable.

       See my concurring, opinion in Heart of Atlanta Motel, Inc. v. United States, ante, p. 268.

       Sections 2Ó1-203, 78 Stat. 243-244, 42 U. S. C. §§ 2000ar-2000a-2 (1964 ed.). ■

       The Court says that:
      “The federal saving statute was originally enacted in 1871, 16 Stat. 432. It was meant to obviate mere technical abatement such as that illustrated by the application of the rule in Tynen decided in 1871. There a substitution of a new statute with a greater schedule of penalties was held to abate the previous prosecution.” Ante, p. 314. There 'is no support for this statement in the language of the statute, in its .legislative history, or in subsequent decisions under it.

       1 U.S. C. § 109 (1958ed.):
      “The repeal of any statute shall not have the effect to release or extinguish any pénalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability. The expiration of a temporary statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the temporary statute shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.”
      I accept the Court’s conclusion that this section has no application here, but only because there has been no repeal or amendment of an existing federal statute.

       Arkansas, for example, has a saving clause, Ark. Stat. Ann. §§ 1-103, 1-104, similar to 1 U. S. C. § 109, which expresses a state policy to save the conviction of Lupper. See Mack v. Connor, 220 Ga. 450, 139 S. E. 2d 286 (1964). Cf. Bell v. Maryland, 378 U. S. 226, conviction affirmed on remand, 236 Md. 356, 204 A. 2d 54; rehearing granted and argument deferred “awaiting the outcome of similar issues now pending before the United States Supreme Court,” quite obviously referring to these cases.

       See Cohens v. Virginia, 6 Wheat. 264, 443, quoted in my Brother Black’s opinion, ante, p.' 321.

       Quoted in the Court’s opinion, ante, pp. 310-311.

       No attempt is made by the Court to justify the retroactive application of the Civil Rights Act under the Fourteenth Amendment.

       See also International Association of Machinists v. Street, 367 U. S. 740, 797 (Frankfurter, J., dissenting).


author: Mr. Justice Harlan Mr. Justice White,

text:
    KING, EXECUTRIX, et al. v. UNITED STATES.
    No. 16.
    Argued October 19, 1964.
    Decided December 14, 1964.

      David S. Bate argued the cause for petitioners. With him on the brief was Paul T. Murphy.

      Alan S. Rosenthal argued the cause for the United States. With, him on the brief wére Solicitor General Cox, Assistant Attorney General Douglas, Hadley W. Libbey and Frederick B. Abramson.

   Mr. Justice Harlan

delivered the opinion of the Court.

This is an action brought by the United States against the executrix of George King, a deceased distributing agent for a debtor in a Chapter XI proceeding, and against his surety. The Government alleged that King was personally liable under R. S. § 3467, 31 U. S. C. § 192 (1958 ed.), because he satisfied claims of nonpriority creditors with knowledge of an outstanding government priority claim, in consequence of which the Government could not be paid in full.

The facts of the case were stipulated and are essentially as follows. On October 1, 1946, Seeley Tube & Box Company, Inc., a New Jersey corporation, filed a petition for reorganization under Chapter XI of the Bankruptcy Act, 30 Stat. 563, as amended, 52 Stat. 905. Soon thereafter, the United States notified Seeley that it intended to terminate, because of Seeley’s default, two federal contracts between Seeley and the Picatinny Arsenal, an installation of the War Department of the United States; the Government further signified its pur-r pose to relet the contracts and to hold Seeley liable for any excess costs. On March 17, 1947, the referee appointed King, who was Seeley’s president, as distributing agent and accepted his surety bond for $10,000. On March 21, 1947, after a hearing, a plan of arrangement submitted by Seeley was confirmed; the Government was not listed as a creditor in Seeley’s petition, but the Picatinny contracts were noted in an annexed schedule as executory. The plan called for Seeley, the debtor corporation, to deposit with the distributing agent $160,193.68 to be distributed pursuant to orders of the court by checks signed by the distributing agent and countersigned by the referee. The plan contained no written provision for payment of the Government’s as yet unliquidated and unfiled claim.

At the hearing, the following colloquy took place between the referee and Mr. Freeman, counsel for Seeley:

“The Referee. Is there a claim ^of the Picatinny Arsenal?
“Mr. Freeman. The Picatinny Arsenal may have some claim.
“The Referee. Have we put up enough money to meet it?
“Mr. Freeman. No.
“The Referee. Is there a problem there?
“Mr. Freeman. We do not owe them any money, and we want to bring them in. I want to state to your Honor further that the debtor company will. deposit any sum of money that is represented by any claim that the Picatinny Arsenal may file in these proceedings within a time that your Honor directs them to file it.
“The Referee.' Have you any notion of what they might claim?
“Mr. Freeman. We think they may claim $20,000.
“The Referee. Have you $20,000 available?
“Mr. Freeman. We have $94,000 available to pay them if necessary, and we represent-to your Honor that there will be at all times $20,000 or more available to dispose of that claim, in cash . . .

The record shows that King was present in the courtroom on the day of the hearing.

Thereafter the court entered an order directing the Government to file its claim on or before May 9, 1947. On May 9 the Government duly filed its preliminary contingent proof of claim in the amount of $26,818.82, later amended to $34,125.03, alleging a priority under § 64 of the Bankruptcy Act, 11 U. S. C. § 104 (1958 ed.), and R. S. § 3466, 31 U. S. C. § 191 (1958 ed.). However, in the seven weeks between the hearing and the filing of this claim, King, as distributing agent, had paid out by checks duly countersigned by the referee, all but $6,085.01 of the $160,193.68 deposited with him; $42,829.76 was paid to King himself as a creditor of the company. A long- litigation then commenced on the issue of whether the Government had timely filed its claim, with an ultimate determination being made in January 1955, in favor of the Government by the Court of Appeals for the Third Circuit. The court stated, “The disclosure by the debtor at the referee’s hearing on confirmation of the plan that the Government had become a creditor was ... in performance of its duty under the Act and amounted to an informal amendment of the list of creditors included in. the debtor’s schedules.” In re Seeley Tube & Box Co., 219 F. 2d 389, 391, cert. denied, 350 U. S. 821.

After King had distributed the $6,085.01 which still remained in his hands ($3,620.39 had gone to the United States) he filed his final report and account. On August 2, 1956, the Bankruptcy Court approved them and discharged King and his surety.

On July 3, 1958, the United States commenced this suit against King for $25,831.08, the balance outstanding on the claim as finally determined, and against the surety for $10,000. The Govérnment’s contention was that King incurred personal liability under § 192 for the unpaid amount by paying the claims of the debtor’s non-priority creditors and thereby so depleting the debtor’s assets that the Government’s § 191 priority claim could not be paid in full. Section 192 provides:

“Every executor, administrator, or assignee, or other person, who pays, in whole or in part, any debt due by the person or estate for whom or for which he acts before he satisfies and pays the debts due to the United States from such person or estate, shall become answerable in his own person and estate to the extent of such payments for the debts so due to the United States, or for so much thereof as may remain due and unpaid.”

The District Court dismissed the complaint on the theory that a distributing agent is not included within § 192 as an “executor, administrator, or assignee, or other person” because he, unlike those fiduciaries mentioned specifically in the statute, is not a personal representative of the debtor but an arm and a representative of the bankruptcy court. 208 F. Supp. 697. The decision was reversed on appeal, 322 F. 2d 317, and, because of a conflict among the circuits on the proper interpretation of § 192, we granted certiorari, 375 U. S. 983.

I.

Section 191, which establishes government priorities on any debts owed by an insolvent debtor to the United States, and § 192, which gives assurance that such debts will be paid, are part of a single statutory structure. The precursor of § 191 first appeared in 1789 in an act establishing customs duties (1 Stat. 29, 42). Section 21, relating to collection on bonds for the payment of duties, provided: “[A]nd in all cases of insolvency, or where any estate in the hands of executors or administrators shall be insufficient to pay all the debts due from the-^deceased, the debt due to the United States on any such bonds shall be first satisfied.” In 1792 the Government’s priority was extended to voluntary assignments for the benefit of creditors and to attachments of the property of “absconding, concealed or absent” debtors as well as to cases in which “an act of legal bankruptcy shall have been committed,” § 18, 1 Stat. 263. Prior to passage of the Act of 1797, “An internal revenue had been established, and extensive transactions had taken place; in the course of which, many persons had necessarily become indebted to the United States.” United States v. Fisher, 2 Cranch 358, 392. By the Act of 1797, the section was extended to cases involving “any revenue officer, or other person hereafter becoming indebted to the United States, by bond or otherwise.” 1 Stat. 515. See Price v. United States, 269 U. S. 492, 501. Then, in 1799, Con-greás took the step which concerns us here by adding the provision now embodied in § 192, establishing personal liability for those who frustrated the Government’s priority:

“. . . and in all cases of insolvency, or where any estate in the hands of the executors, administrators or assignees, shall be insufficient to pay all the debts due from the deceased, the debt or debts due to the United States, on any such bond or bonds, shall be first satisfied; and any executor, administrator, or assignees, or other person, who shall pay any debt due by the person or estate from whom, or for which, they are acting, previous to the debt or debts due to the United States from such person or estate being first duly satisfied and paid, shall become answerable in their own person and estate, for the debt or debts so due to the United States, or so much thereof as may remain due and unpaid . . . .” 1 Stat. 676.

Later, in the same section, the proviso extending the statute to voluntary assignments and absconding debtors is also included,.

Division of the provisions into separate sections in the Revised Statutes “did not'work any change in the purpose or meaning.” Price v. United States, 269 U. S. 492, 501. Thus, it is evident that §§ 191 and 192 must be interpreted in pari materia. The Court so stated in United States v. Butterworth-Judson Corp., 269 U. S. 504, 513, and so interpreted them- in Bramwell v. United States Fidelity & Guaranty Co., 269 U. S. 483, where it said: 1

“The specification in § 3466 [§ 191] of the ways insolvency may be manifested is aided by the designation in § 3467 [§ 192] of the persons made answerable for failure to pay the United States first from the inadequate estates of deceased debtors or from the insolvent estates of living debtors. The persons held are ‘every executor, administrator, or assignee, or other person.’ The generality of the language is significant. Taken together, these sections mean that a debt due the United States is required first to be satisfied when the possession and control of the estate of the insolvent is given to any person charged with the duty of applying it to the payment of the debts of the insolvent, as the rights and priorities of creditors may be made to appear.” 269 U. S., at 490.

II.

Petitioners, in oral argument, conceded the Government’s priority claim under § 191. Their contention, relying on United States v. Stephens, 208 F. 2d 105, is that distributing agents as a class are nonetheless excluded from the category of fiduciaries covered by § 192 because they are agents of the court rather than personal representatives of the debtor, and the words “or other person” are “limited to those who stand as personal representatives [of the debtor] not.only by the application of the principle of ejusdem generis but by the language qualifying ‘person’ as one ‘who pays in whole or in part any debt due by the person or estate for whom or for which he acts” Id., at 108.

Petitioners’ emphasis on a distinction between a personal representative and an agent of the court is misplaced in the context of §§ 191 and 192. The purpose of § 192, as recognized in Bramwell, is to make those into whose hands control and possession of the debtor’s assets are placed, responsible for seeing that the Government’s priority is paid. Whether or not King falls within the category of fiduciaries on whom such responsibility should be placed depends, not on the title of his position or the mode of his appointment, but, in practical terms, upon the degree of control he is in a position to assert over the allocation among creditors of the debtor’s assets in his possession. That appointment as an officer of the court does not decisively inhibit operation of § 192 -is shown by the express inclusion.within the scope of the statute of court-appointed administrators And Bramwell. showed that others besides personal representatives of the debtor may be included in § 192, for in that case this Court indicated that § 192 would apply to a state official charged with the function of liquidating a bank’s assets, although the official was clearly not acting as the personal representative of the bank. Petitioners would distinguish Bramwell in that the state official had a large measure of control, whereas King did not, but this, on the one hand, does not vitiate the point that one need not be a personal representative to come within the coverage of § 192, and, on the other, emphasizes that it is the element of control over the assets which is decisive.

We agree with Judge Browning, writing in United States v. Crocker, 313 F. 2d 946, 949, that “the debts paid by a liquidating receiver [and, we add, distributing agent], like those paid by an executor,'administrator, or assignee for the benefit of creditors, are primary obligations of the debtor; the phrase ‘for whom, or for which he acts’ should be read as a general acknowledgment of this fact rather than as imposing a restriction upon the reach of Section 192 inconsistent with the overall purpose of this section and Section 191.” • We reject, therefore, the proposition that because distributing agents in Chapter XI proceedings act primarily for the court rather than for the debtor they are categorically excluded from the coverage of § 192.

III.

. It remains to inquire whether King, by acting as an arm of the court under court instruction and approval lacked the degree of control necessary to make § 192 operative as to him. Petitioners argue that distributing agents exercise no discretion in the discharge of their duties, but perform only the ministerial function of paying out the deposited funds in conformity with the court’s orders. Indeed, it is contended that inclusion of distributing agents within the coverage of § 192 would have placed King on the horns of a dilemma, in that he must either have incurred personal liability to the Government or risked being held in contempt by the Bankruptcy Court. But this assumes that the plan of arrangement, once submitted to the court, was immutable. In fact, if King had objected at the confirmation hearing to paying out the deposited funds to nonpriority creditors before the Government’s claim was surely provided for, there can.be little doubt that he would have obtained satisfaction. Even after confirmation it is most unlikely that such an objection would have been ignored. Had it been, responsibility for the frustration of the Government’s claim would have devolved completely upon the court, and we would be faced with a very , different case.

We are not prepared to articulate any general rule defining the responsibility of distributing agents to make and press such objections. We hold only that King, on the facts of this case, did have such a responsibility. As president of the debtor corporation he must have been aware of the Government’s potential claim; most likely he took an active role in the formulation of the plan of arrangement which appended a reference to the Picatinny contracts. He had been appointed distributing agent before the day of the confirmation hearing, and was present in court on that day. In all likelihood, he was present at the time when the possibility of the government claim arose and Mr. Freeman, the company’s counsel, made the representation that $94,000 was available to meet it. Finally, he himself was one of the major distributees in the distribution plan. In these circumstances we think King was possessed of a sufficient degree of control over the allocation among creditors of the assets in his possession to give rise to responsibility under § 192 for seeing that the government priority was paid, a responsibility which King, so far as the record reveals, made no effort to discharge. This is not to say that King acted dishonestly in any way or that he positively intended to thwart the Government’s claim. He may well have relied either on the representation that $94,000 was available, or, as president of the corporation with full knowledge of its finances, on whatever underlying facts led Mr. Freeman to make that representation. But § 192 required more of King than an honest belief that the Government woüld be paid. It imposed upon him a duty to see that this was done.

Affirmed.

Mr. Justice Black and Mr. Justice Douglas share the views of the Court of Appeals for . the Fifth Circuit, United States v. Stephens, 208 F. 2d 105, as to the construction of the statute, and would therefore reverse the judgment below.

Mr. Justice White,

concurring.

In the typical Chapter XI case initiated by the debtor under § 322 it is the debtor that remains in possession and that has prepared and filed the petition and schedules and that proposes the arrangement. It is only after the arrangement has been approved by the creditors that a distributing agent is appointed and charged with the distribution to specified recipients of the deposit required by the Act. The agent, qua agent, has no reason or duty to know or to learn of unscheduled debts, priority or otherwise, and lacking such knowledge from-some other source such as his prior or current position with the debtor I would think he would be beyond the reach of 31 U. S. C. § 192 (1958 ed.) if a government priority claim is unscheduled and unpaid.

But the agent does have the task of distributing the deposit and the deposit is required to include a sufficient sum to pay all priority claims (with some exceptions), even those which are scheduled as disputed and unliqui-dated. Bankruptcy Act, § 337 (2), 11 U. S. C. § 737 (2) (1958 ed.); 8 Collier on Bankruptcy, ¶ 5.33 [2], at 696 (14th ed. 1963). His responsibility under Chapter XI and under 31 U. S. C. §§ 191 and 192 extends far enough to impose the obligation to ascertain that the deposit he is handling is ample to pay the claims specified in the statute and is disbursed as required by law. And as to scheduled claims, liquidated or not, disputed or undisputed, the distributing agent is furnished with sufficient knowledge to fasten upon him the responsibility of not paying out the deposit so as to defeat the priority of the Government under § 191, at least without a court determination that he should do so.

There remains, however, a difficulty in this case. Although the papers filed with the petition revealed the debtor had certain contracts with the'Government, the schedules did not list the United States as a creditor. However, the Government later terminated the contracts and at the confirmation hearing the existence of a claim of the. United States was made known:. The referee himself brought up the question of providing for payment of the Government’s claim and was told, as I read the testb mony, that the deposit did not include any sum to defray any part of this claim but that the debtor would have ample sums available to satisfy the claim and would make any deposit for this purpose which it was directed to make. The debtor’s attorney, however, made it clear that the debtor was disputing the claim of the United States. In effect, the situation at that point was as though a disputed and unliquidated claim had been scheduled. In re Seeley Tube & Box Co., 219 F. 2d 389, cert. denied, 350 U. S. 821. An arrangement may not be confirmed if a deposit does not inchfde an amount to take care of. all scheduled priority claims including those which are unliquidated. 8 Collier on Bankruptcy, ¶ 5.32 [8]. If the referee, as he apparently did here, confirmed the arrangement without having in hand a deposit to pay the debt to the Government if proved and allowed, it could well be argued that a distributing agent should not be required to have remonstrated with the referee or to bear the burden of the referee’s unauthorized act, for the distributing agent’s “control and possession” are limited to the deposit.

We need not pursue this phase of the matter further, however, since other facts justify holding the distributing agent accountable in this particular case. As the Court points out, the agent was an officer of the debtor, was undoubtedly familiar with its affairs and took no exception to the attorney’s statement that there would be ample funds to pay the government claim. This petitioner was not an uninformed distributing agent doing only what he was told to do but was both a distributing agent and an officer of the debtor, with ample notice of the Government’s claim and of the referee’s expéctation that when proved and allowed it would be paid. In paying out the deposit without provision for the claim of the United States he acted at his own risk and became personally liable under § 192 when the Government’s claim became liquidated.

       King died testate after commencement of the suit and his executrix was substituted as a party defendant by, court order. An action by the United States against a fiduciary under R. S. § 3467,31U. S. C. §.192 (1958 ed.), survives against his estate. See United States v. Dewey, 39 F. 251.

       This-fact, was not stipulated,-but appears in King’s final petition and report, tvhich was attached as Exhibit A to the Government’s complaint. See Brief for Respondent, p. 7, n. 4. .

       It was alleged in the Government’s complaint in this action that it received no notice of these events, but this allegation was denied in the answer and is not mentioned in the stipulated facts.

       See note 1, supra.

       Compare United States v. Stephens, 208 F. 2d 105 (C. A. 5th Cir. 1953), with United States v. Crocker, 313 F. 2d 946 (C. A. 9th Cir. 1963) and the decision of the court below in the present case.

       Section 191 provides:
      “Whenever any person indebted to the United States is insolvent, or whenever the estate of any deceased debtor, in the hands of the executors or administrators, is insufficient to pay all the debts due from the deceased, the debts due to the United' States shall be first satisfied; and the priority established shall extend as well to cases in which a debtor, not having sufficient property to pay all his debts, makes a voluntary assignment thereof, or in which the estate and effects of an absconding, concealed, or absent debtor are attached by process of law, as to cases in which an act of bankruptcy is committed.”-

         A trastee in bankruptcy, an officer of the court, has been included ■ as an “other person,” United States v. Kaplan, 74 F. 2d 664.

       See United States v. King, 322 F. 2d 317, at 322.

       See generally 8 Collier on Bankruptcy, ¶5.33 (14th ed. 1963).

       Cf. Field v. United States, 9 Pet. 182 (1835).

       Even if a distributing agent does learn of the government claims it may be that he should not be held liable under § 192, if such knowledge is not obtained until after confirmation. As the claim was neither scheduled nor filed prior to confirmation the Government would not be entitled to share in the deposit and a disbursement from the deposit to.the United States would probably subject the distributing agent to liability to creditors entitled to share in the composition. In re J. B. Poliak Co., 86 F. 2d 99. Only if the confirmation were set ¿side prior to distribution of the deposit, which normally occurs immediately, could provision be made to pay the government claim. In this respect it should be noted that the Court’s observation that even if King .had waited to object “to paying out the deposited funds to nonpriority creditors before the Government’s claim was surely provided for” until after confirmation “it is most unlikely that such an objection would have been ignored,” ante, pp. 338, 339, while perhaps true on the particular facts of this case, is greatly oversimplified if meant to apply to the distributing agent’s position generally.