source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    McCANN, DISTRICT ATTORNEY OF MILWAUKEE COUNTY v. BABBITZ
    No. 297.
    Decided October 12, 1970
   Per Curiam.

The appeal is dismissed. Mitchell v. Donovan, 398 U. S. 427, and Gunn v. University Committee to End the War in Viet Nam, 399 U. S. 383.


text:
    HANEMANN v. FLORIDA
    No. 5156.
    Decided October 12, 1970
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the District Court of Appeal of Florida, First District, for consideration in light of Ashe v. Swenson, 397 U. S. 436.


text:
    HALL v. UNITED STATES
    No. 5191.
    Decided October 12, 1970
   Per Curiam.

The motion- for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the United States District Court for the Middle District of Alabama with directions to dismiss the complaint as moot.


text:
    LOS ANGELES HERALD-EXAMINER et al. v. KENNEDY, REGIONAL DIRECTOR, NATIONAL LABOR RELATIONS BOARD, et al.
    No. 350.
    Decided October 12, 1970
   Per Curiam.

The motion of the Chamber of Commerce of the United States for leave to file a brief, as amicus curiae, is granted. The motion to defer consideration of the petition for a writ of certiorari is denied.

The petition for a writ of certiorari is granted. The orders of the Court of Appeals are vacated and the case is remanded to the United States District Court for the Northern District of California with directions to dismiss the case as ■ moot. Sears, Roebuck & Co. v. Carpet Layers, 397 U. S. 655.

Mr. Justice Douglas took no part in the consideration or decision of these motions or this petition.


text:
    UNITED STATES v. MARYLAND SAVINGS-SHARE INSURANCE CORP.
    No. 160.
    Decided October 19, 1970
   Per Curiam.

This is a direct appeal by the United States from a district court judgment holding unconstitutional § 501 (c)(14)(B) of the Internal Revenue Code of 1954, '26 U. S. C. §501 (c)(14)(B) (1964 ed., Supp. V), on the ground that it arbitrarily discriminates between Maryland Savings-Share Insurance Corp. (MSSIC), the ap-pellee, and-other similar nonprofit, mutual insurers.

MSSIC was established by the Maryland Legislature with the object of insuring the accounts of shareholders of member savings and loan associations. Although first chartered in 1962, it seeks the benefit of § 501 (c) (14) (B), which exempts from tax nonprofit corporations such as appellee but only if organized before September 1, 1957. MSSIC’s position is that September 1, 1957,. is an arbitrary and unconstitutional cutoff date which must be excised from the section, leaving the section applicable to all corporations of the same nature as itsélf regardless of the date of their creation. We do not agree.

Prior to 1951, all savings and loan associations were exempt from taxation of income derived from their operations. Also exempt were nonprofit corporations that insured the savings institutions. In 1951, the exemption for savings and loan associations was discontinued, on findings that the industry had developed to a. point comparable to that of commercial banks. The exemption for insurers, however, was continued, provided they were already in existence as of September 1, 1951. See Revenue Act of 1951, § 313 (b), 65 Stat. 490; S. Rep. No. 781, 82d Cong., 1st Sess., 22-29; 2 U. S. Code Cong. & Ad. News 1969, 1991-1997 (1951). As of that date three private insurers fell within the scope of the section — two of them in Massachusetts and one in Connecticut. Then, in 1956,'a fourth such corporation was organized in Ohio, and four years later Congress moved the cutoff date forward to September 1, 1957. Act of April 22, 1960, 74 Stat. 54.

In 1963, a similar bill, H. R. 3297, 88th Cong., 1st Sess., which would have moved the cutoff, date forward to January 1, 1963, for the benefit of MSSIC, passed the House, but was never reported out by the Senate Finance Committee. Testimony before the committee indicated that continued forward movement of the date might lead to proliferation of state insurers that could hinder the operations and threaten the financial stability of -the Federal Deposit Insurance Corporation and the Federal Savings and Loan Insurance Corporation. See Hearing on H. R. 3297 before the Senate Committee on Finance, 88th Cong., 2d Sess., 9-10 (1964).

Against this background, the District Court’s invalidation of § 501 (c) (14) (B) was error. The fact that Con-: gress enacts a statute containing a “grandfather clause,” which exempts from the general income tax certain corporations organized prior to a specified date, does not of itself indicate that Congress has made an arbitrary classification. Cf. Stanley v. Public Utilities Comm’n, 295 U. S. 76 (1935); Sperry & Hutchinson Co. v. Rhodes; 220 U. S. 502 (1911); Watson v. Maryland, 218 U. S. 173 (1910); Sampere v. New Orleans, 166 La. 776, 117 So. 827 (1928), aff’d per curiam, 279 U. S. 812 (1929). Normally, a legislative classification will not be set aside if any state of facts rationally justifying it is demonstrated to or perceived by the courts. McDonald v. Board of Election Comm’rs,.394 U. S. 802, 809 (1969); McGowan v. Maryland, 366 U. S. 420, 426. (1961); Standard Oil Co. v. City of Marysville, 279 U. S. 582, 586-587 (1929). See also Watson v. Maryland, supra, at 178. Here the legislative history of H. R. 3297 affirmatively discloses that Congress had a rational basis for declining in 1963 to broaden the exemption by extending the-cutoff-date of § 501 (c)(T4)(B). Just as a State may provide that after a specified date newly established common carriers must obtain state approval before entering into business so as to prevent proliferation of such carriers and excessive use of the State’s highways, see Stanley v. Public Utilities Comm’n, supra, similarly Congress does not exceed its power to tax nor does it violate the Fifth Amendment when it refuses to exempt from tax newly formed corporations, the multiplication of which might burden otherwise valid federal programs.

Having noted probable jurisdiction by order of October 12, 1970, we now reverse the judgment of the District ^our^'

So ordered;

Mr. Justice Harlan, considering that the issues in this case are deserving of plenary consideration, would set the case for argument.

       Internal Revenue Code § 501 (c) (14) (B), 26 U. S. C. §501 (c)(14)(B) (1964 ed., Supp. V), provides:
      “(B) Corporations or associations without capital stock organized before September 1, 1957, and operated for mutual • purposes and without profit for the purpose of providing reserve funds for, and insurance of shares or deposits in—
      “(i) domestic building and loan associations,
      “(ii) cooperative banks without capital stock organized and operated for mutual purposes and without profit, or
      “(in) mutual savings banks not having capital stock represented by shares.”

       The District Court’s reliance on Mayflower Farms, Inc. v. Ten Eyck, 297 U. S. 266 (1936), was misplaced, since, according to the Court in that case, the legislative record contained no affirmative showing of a valid legislative purpose. We thus heed not pass upon the- continuing validity of Mayflower’s holding. We also find unpersuasive MSSIC’s remaining argument that it is an instrumentality of the State and hence entitled to exemption from federal taxation under the doctrine of intergovernmental immunity and under § 115 (a)(1) of the Code, 26 U. S. C. § 115 (a)(1). The District Court properly rejected this argument.


author: Per Curiam. Mr. Justice Harlan,

text:
    UNITED STATES et al. v. CITY OF CHICAGO et al.
    No. 386.
    Decided October 19, 1970

      Together with:. No. 387, United States et al. v. Tennessee Public Service Commission et al., No. 396, Louisville & Nashville Railroad Co. v. Tennessee Public Service Commission et al., and No. 410, Chicago & Eastern Illinois Railroad et al. v. City of Chicago et al., also on appeal from the same court.

   Per Curiam.

These cases are a sequel to our decision in City of Chicago v. United States, 396 U. S. 162, last; Term. The Chicago & Eastern Illinois Railroad (C&EI) filed a notice under § 13a (1) of the Interstate Commerce Act, 72 Stat. 571, 49 U. S. C. .§ 13a (1), proposing to discontinue a pair of trains known as the “Georgian,” operated by it between Chicago, Illinois, and Evansville, Indiana, and operated in conjunction with trains of the Louisville & Nashville Railroad (L&N) between.Evansville, Indiana, and Atlanta, Georgia, crossing Kentucky and Tennessee en route.. Part of-this litigation grows out of the ICC’s approval of the C&EI’s discontinuance of the Chicago-Evansville segment of the “Georgian,” evidenced by its termination of its investigation.

The L&N also operates the “Hummingbird.” between Cincinnati, Ohio, and New Orleans, Louisiana. The “Hummingbird” connects with the “Georgian” at Nashville, Tennessee, where coaches and sleepers are transferred between the two trains. Following the ICC’s approval of C&EI’s discontinuance, the L&N served notice of discontinuance of the “Hummingbird” which the ICC also approved.

In City of Chicago v. United States, supra, we held that ICC decisions to discontinue such an investigation were reviewable and remanded the cases- back to the District Court. That court then ordered consolidation . and remanded back to the ICC for further hearings, holding that the notice served by the C&EI on the Governors of Illinois and Indiana and at every station along the Chicago-Evansville run was inadequate because the people of Kentucky, Tennessee, and Georgia, and the Governors of those States were not notified. The “Hummingbird” discontinuance was also remanded to the ICC because of its close relationship with the “Georgian.” These appeals followed.

We note jurisdiction and reverse. Section 13a (1) provides: .

“A carrier or carriers subject to this part, if their rights with respect to the - discontinuance or change ... of the operation or service of any train . . . are súbject to any provision of the constitution or statutes of any State . ; . shall mail to the Governor of each State in which such train . .. . operated, and post in every station, depot or other facility served thereby, notice ... of any such proposed discontinuance or change.”

This section, as we read it, required C&EI to give notice in Illinois and Indiana, the only- States in which the line now in controversy has operated. No provision is made in § 13a (1) for notice to States served by connecting railroads which might be affected by a discontinuance.

The dissent finds ambiguity in the phrase “such train” in § 13a (1). It is argued that two interpretations of “such train” are possible: either the train of the C&EI between Chicago and Evansville or the “Georgian” between Chicago and Atlanta. By allowing discontinuance under § 13a (1), however, the ICC must have interpreted “such train” to refer to a train operated by one railroad only; and it. was only the Chicago-Evansville discontinuance that was before it at the time. The Commission ruled that: “Copies of the notices were duly served and posted in the manner required by section 13a (1) and our rules and regulations thereunder.” 331 I. C. C. 447, 448. We defer on this issue to the definition of “train” given by the administrative agency which has oversight of the problem. See, e. g., Udall v. Tallman, 380 U. S. 1, 16-17; Bowles v. Seminole Rock Co., 325 U. S. 410, 417-418.

It is true that the C&EI and the L&-N functioned in close harmony. Discontinuance of service on one line might have a substantial effect on the other. But this relationship is not unique in railroading. Congress is not unaware of the mutual interdependence of railroads. It designed a federal regulatory system that displaced a state regulatory system when the state system could defeat a carrier’s attempt to discontinue a train. Hence we think it distorts § 13a (1) to treat if. so as to require the giving of notice to States which had no regulatory-power over the carrier.

Accordingly, the decisions in No's. 386 and 410 are reversed. Since Nos. 387 and 396 were remanded to the Commission solely because of their relation to Nos. 386 and 410, those decisions are also reversed. The causes aré remanded to the District Court for review of any questions on the merits which may remain unresolved. •

It is so ordered.

Mr. Justice Harlan,

with whom Mr. Justice Black joins,

dissenting.

I think these cases do not lend themselves to summary disposition.

The Chicago & Eastern Illinois Railroad Co. and the Louisville & Nashville Railroad Co. jointly operated a train known as the “Georgian” which provided passenger service between Chicago, Illinois, and Atlanta, Georgia. At Evansville, Indiana, between the two terminal points on the “Georgian” run, the railroad companies switched engines and train crews; passengers, however, could' remain in the railroad cars and continue through to the-end of the run. The Chicago &■ Eastern Illinois sought ICC approval of its discontinuance of the Chicago-Evansville portion of the run; notice of the proposed discontinuance proceedings was not served on the Governors and residents of the States served by the Evansville-Atlanta portion of the “Georgian” run. After our remand in City of Chicago v. United States, 396 U. S. 162 (1969), the District Court held that notice of the ICC discontinuance proceedings should have been given to the Governors and residents of all the States served by the “Georgian” run. The Court, in Nos. 386 and 410, now summarily reverses that decision, holding that § 13a (1) of the Interstate Commerce Act, 49 U. S. C. § 13'a (1), requires that a carrier seeking to discontinue passenger service give notice only in those States having regulatory authority over the carrier.

The issue, in my opinion, is not one justifying summary resolution, as an examination of the Court’s opinion indicates. The Court relies in the first instance on the absence of an explicit provision in § 13a (1) of .the Act for notice to States served by “connecting railroads.” However, the statutory provision in question is manifestly highly ambiguous with regard to the scope of the notice obligation in situations where two carriers, though subject to different state regulatory authorities, offer their services to the public in a manner which, from the consumer standpoint, is indistinguishable from passenger service offered by a single carrier. Section 13a (1) provides in relevant part:

“A carrier or carriers ... if their rights with respect to the discontinuance or change, in whole or in part, of the operation or service of any train . . . operating from a point in one State to a point in any other State . . . are subject to any provision of the constitution or statutes of any State or any regulation or order of (or are the subject of any proceeding pending before) any court or an administrative or regulatory agency of any State, may, but shall not be required to, file with the Commission, and upon such filing shall mail to the Governor of ■ each State in which such train ... is operated, and post in every station, depot or other facility served thereby, notice at least thirty days in advance of any such proposed discontinuance or change. . . .”

Appellants in Nos. 386 and 410 argue that since § 13a (1) accords carriers a right to commence discontinuance proceedings before the ICC if their rights with respect to the operation of train service are subject to any state regulatory authority, the scope of the notice requirement should be limited by the reach of the state regulatory' power giving rise, in the first instance,.'to' the carrier’s right to go before , the ICC. Appellees-in" Nos. 386 and 410, for their part, contend that the notice requirement is geared to the areas through which “such train” is operated, not merely the areas reached by a State’s regulatory power over the carrier. Por my part, I find the language and structure of the statutory provision singularly opaque; and I am not aided in my choice between these competing constructions by the Court’s observation that § 13a (1) makes no provision for notice in States served by “connecting railroads.”

' In view of the structural and linguistic ambiguity of the statutory provision, the Court’s reliance on the absence of an explicit reference to carrier arrangements of this sort would carry weight only if the legislative policy underlying § 13a (1) of the Act solidly supported the result reached today. Lacking that, the description of congressional . policy in n. 3 of the Court’s opinion, ante, at 11, hardly warrants the Court’s inference in the text of its opinion that the statutory purpose underpinning § 13a (1) is served by a limitation of the notice requirements according to the reach of the State’s regulatory power over the carrier filing with the ICC. Indeed, the concern with state regulatory parochialism, and the resulting burden on interstate commerce caused by economically wasteful passenger service arrangements, argue with at least equal force for an interpretation of the notice requirements of § 13a (1) as reach-, ing beyond the relatively narrow parochial interests likely to be called forth by only a particular State’s participation in a hearing. on the discontinuance of multicarrier service.

Apparently, the Court recognizes the inherent ambiguity of the statute. Thus, its opinion finally comes to rest on the principle of deference to the administrative agency’s construction of the statute. Suffice it to say that I am not persuaded by the deference argument as applied to the agency’s pro forma finding of adequate notice in this very litigation where the notice issue evidently was not before the agency at the time of its .ruling. See 3311. C. C. 447, 448.

The above considerations are not meant to reflect any conclusions concerning the. merits of the statutory construction issue presented in these cases. To the contrary, my point-is simply that, without briefs and oral argument by the parties on the merits of the question,

I would refrain from choosing between the conflicting constructions of § 13a (1) pressed upon the Court by the parties. Therefore, I would note probable jurisdiction in Nos. 386 . and 410. I would withhold action in No. 387 pending dispositions in Nos. 386 and 410. In No. 396, -I would note probable jurisdiction, limited to the questions concerning the District Court’s action in reinstating the restraining order of September 6, 1968.

      No issue as to the adequacy of the notice given in the L&N proceeding is raised here.

       The regulation at the time provided for “[a] certificate [stating] that a copy of the notice * * * has been mailed to the Governor and railroad regulatory body of each State in which the subject train or ferry is operated.” (49 CFR § 143.5 (j),-formerly § 43.5 (j) (see 32 Fed. Reg. 5606)).

       Until 1958 railroad discontinuances required approval of the appropriate regulatory agency in each of the States in which the line operated. Congress knew of the financial difficulties of the railroads and concluded that the problem of discontinuance had to be removed from its parochial setting where state agencies 'too often required the “maintenance of uneconomic and unnecessary services and facilities.” S. Rep. No. 1647, 85th Cong.,'2d Sess., 22. Therefore, Congress vested power over discontinuances in a body aware of the national transportation problems and needs. See generally City of Chicago v. United States, 396 U. S. 162 (1969), and Southern R. Co. v. North Carolina, 376 U. S. 93 (1964).
      The problem of discontinuance of services as put to the Congress by the Association of American Railroads was described as follows: “[S]uch matters are subject to approval of State regulatory commissions and authority for. such discontinuances or abandonments must be obtained within the scope of statutes or procedures under which those State commissions operate.” Problems of the Railroads, Hearings before the Subcommittee on Surface Transportation of the Senate Committee on Interstate and Foreign Commerce, 85th Cong., 2d Sess., pt. 1, p. 25 (Jan. 13, 1958).
      The legislation was responsive to that need and may not be easily construed to do more than track the jurisdiction of a' State over the carrier in question.

      Nos. 387 and 396 are appeals by the Government, the ICC. and the Louisville' & Nashville Railroad Co. challenging the District Court’s holding that the issues involving the discontinuance of the Louisville & Nashville Railroad Co.’s' “Hummingbird” train are So factually related to the discontinuance of the “Georgian” run.that the “Hummingbird” discontinuance should be remanded in light of the projected reconsideration of, the “Georgian” discontinuance. In addition, the Louisville & Nashville Railroad Co., in No. 396, challenges the District. Court’s action in reinstating the September 6, 1968, restraining order entered by Judge Robson; that restraining order prohibited discontinuance of the “Hummingbird” trains pending • resolution of the case in the District Court. On April 3, 1970, this Court stayed the District Court’s action in reinstating the earlier restraining order. 397 U. S. 1019. The effect of today’s opinion on the status of that restraining order is unclear.

       The disconnected nature of the Court’s reasoning is nicely illustrated in n. 3 of its opinion, ante, at 11. We are offered two . quotations — one from the Senate Report and' the other from the Association of American Railroads — as legislative history supporting the Court’s construction of § 13a (1). The substance of both clearly supports the view of § 13a (1) as seeking to remedy state regulatory parochialism. Unfortunately, neither quotation speaks to the question put in issue by the Court’s rationale for summarily disposing of these cases; i. e., whether the congressional decision to proffer an alternative national forum as a remedy for state parochialism is to be construed solely in light of the carrier interest in escaping state regulatory agencies. Yet the Court, after reciting these quotations, chooses to draw the inference that the statute cannot be easily construed to do more than serve that interest of the carriers. I must respectfully submit .that this is a rather obvious non sequitur.


text:
    COLOMBO v. NEW YORK
    No. 175.
    Decided October 19, 1970
   Per Curiam.

The petition for a writ of certiorari is granted, the judgment is vacated, and the case is remanded to the Court of Appeals of New York for further consideration in light of Waller v. Florida, 397 U. S. 387.

Mr. Justice Black is of the opinion that certiorari should be granted and the judgmeht reversed on the ground that the state prosecution is barred by the Double Jeopardy Clause of the Fifth Amendment of the Constitution.


text:
    THOMPSON v. UNITED STATES
    No. 5272.
    Decided October 26, 1970
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a- writ of certiorari are granted. The judgment is vacated and the case is remanded to the Ignited States District Court for the Eastern District of Louisiana for consideration of the request contained ' in the memorandum filed in this Court by the Solicitor General.

■ Mr. Justice Black, with whom Mr. Justice Douglas joins, would grant certiorari and reverse the decision below for the reasons stated in his dissenting opinions in Abbate v. United States, 359 U. S. 187,. 201 (1959), and Bartkus v. Illinois, 359 U. S. 121, 150 (1959).


author: Per Curiam. Mr. Justice Hablan,

text:
    LINES v. FREDERICK et al.
    No. 412.
    Decided November 9, 1970
   Per Curiam.

This casé presents the question of whether a bankrupt wage earner's vacation pay, accrued but unpaid at the time of the filing of his petition, passes to the trustee in bankruptcy as. “property” under § 70a (5) of the Bankruptcy Act, 30 Stat. 565, as amended, 11 U. S. C. § 110 (a) (5). The facts are not in dispute. Respondent Frederick, employed by a large manufacturing company, had accrued vacation pay of $137.28 at the time he filed his petition. He could collect this sum either during the annual period when his employer shut down the plant in which he worked, or on final termination of his employment. Respondent Harris had accrued vacation pay of $144.14, which he could draw either on termination or under a conventional voluntary vacation plan of his employer. In each case, the referee in bankruptcy made a “turnover order” requiring the bankrupt to pay to the trustee on receipt all of his accrued vacation pay, less one-half of that part accrued during the 30 days prior to the filing of the petition (the deducted sum being exempt under Cal. Code Civ. Proc. § 690.11 (Supp. 1970)).

The District Court affirmed the referee in both cases, but the Court of Appeals for the Ninth Circuit reversed, holding that accrued but unpaid vacation pay is not “property” under the statute, and therefore finding it unnecessary to decide whether such accrued pay meets the further statutory requirement of being “transferable.” As the Court of Appeals noted, its decision was ■squarely in conflict with that of the Court of Appeals for the Fifth Circuit in Kolb v. Berlin, 356 F. 2d 269.

In Segal v. Rochelle, 382 U. S. 375, 379, we said that “[t]he main thrust of § 70a (5) is to secure for creditors everything of value the bankrupt may possess in alienable or leviable form when he files his .petition. To this end the term ‘property’ has been construed most generously and an interest is not outside its reach because it is novel or contingent or because enjoyment must be postponed.” But we pointed out that “ ‘[i]t is impossible to give any categorical definition to the word “property,” nor can we attach to it in certain relations the limitations which would be attached to it in others.’ ”

The most important consideration limiting the breadth of the definition of “property” lies in the basic purpose of the Bankruptcy Act to give the debtor a “new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt. The various provisions of the bankruptcy act were adopted in the light of that view and are to be construed when reasonably possible ■in harmony with it so as to effectuate the general purpose and policy of the act.” Local Loan Co. v. Hunt, 292 U. S. 234, 244-245 (citations omitted).

In Segal v. Rochelle, supra, the question was whether loss-carryback tax refunds arising out of business losses immediately prior to bankruptcy but not collected until the end of the calendar year were property subject to a turnover order in favor of the trustee. In that case, as in this one, the problem of classification for purposes of the Bankruptcy Act could not be resolved simply by reference to the time when the right to the payment “vested,” or to definitions of property drawn from other areas of the law. The Court looked to the purposes of the Act and concluded that the tax refund claim was “sufficiently rooted in the pre-bankruptcy past and so little entangled with the bankrupt’s ability- to make an unencumbered fresh start that it should be regarded as-‘property’ under § 70a (5).” 382 U. S., at 38Q,

Applied to the set of facts before us here, the principles reflected in the earlier cases compel a decision fdr the bankrupt. In Segal, a business had ceased to operate and the tásk of the trustees in bankruptcy was to marshal whatever assets were left for distribution to the creditors. The tax refund claim, arising out of the operations of the business and specifically out of the losses that had precipitated its failure, was such an asset. By contrast, the respondents here are wage earners whose sole source of income, before and after bankruptcy, is their weekly earnings. The function of their accrued vacation pay is to support the basic requirements of life for them and their families during brief vacation periods or in the event of layoff. Since it' is a part of their wagés, the vacation pay is “a specialized type of property presenting distinct problems in our economic -system.” Sniadach v. Family Finance Corp., 395 U. S. 337, 340. Where the minimal requirements for the economic survival of the debtor are at stake, legislatures have recognized that protection that might be unnecessary or unwise for other kinds of property may be required. See, e. g., the Consumer Credit Protection Act, § 301, 82 Stat. 163. 15 U. S. C. § 1671 (1964 ed., Supp. Y).

The wage-earning bankrupt who must take a vacation without pay or forgo a vacation altogether cannot be said to have achieved the “new opportunity in life and [the] clear field.for future effort, unhampered by the pressure and discouragement of preexisting debt,” Local Loan Co. v. Hunt, supra, which it was the purpose of the statute to, provide.

The motion of respondent Harris to proceed in forma pauperis is granted. The motion of respondent Frederick to dispense with printing his brief in opposition is granted. The petition for certiorari is granted and the judgment is affirmed.

The Chief Justice is of the opinion that the petition for writ of certiorari should be denied.

Mr. Justice Hablan,

dissenting.-

In my view this case is ■ another instance in which the pressure of an overcrowded docket has led the Court to deal summarily with an issue which, if deserving of our attention at all, is deserving of full-dress treatment. Cf. United States v. Maryland Savings-Share Insurance Corp., ante, p. 4; United States v. Chicago, ante, p. 8. Moreover, the Court disposes of the case despite the opaqueness of the record and the uncertainty with regard to relevant California law.

Under the terms of respondent Frederick’s employment, his employer credited him with one day’s vacation pay for each month’s work. From September 15/ the date of bankruptcy, to December 23, the beginning of the shutdown and the enforced “vacation,” Mr. Frederick presumably became entitled to a little over three days’ pay. The same amount would have accrued to a person starting work on the date of bankruptcy with no debts or assets, the paradigm of “an unencumbered fresh start.” Indeed, the order not only permitted Mr. Frederick a fresh start; it gave him a head start, to the extent of half a day’s pay. Segal v. Rochelle, 382 U. S. 375 (1966), and Local Loan Co. v. Hunt, 292 U. S. 234 (1934), therefore tend to support, the position of the trustee rather than “compel a decision for the bankrupt.” Ante, p. 20. However, respondents can muster forceful arguments in their support, even on the assumption that the accrued vacation pay was subject to the claims of creditors — a point of California law which the court below found it unnecessary to decide.

Since the question tendered for review is close and has split the courts of appeals, I would set the case for argument.

       While neither the stipulated facts nor the opinions below reveal the rate of accrual of vacation pay, I take as true the uncontested representation in Mr. Frederick’s petition for review of the referee’s order.

       The case of respondent Harris is similar, but it is complicated by the fact that he could have chosen to forgo his vacation. As he observed in his petition to review the turnover order, the record is silent on whether such a choice would have wiped out his accrued vacation time and left nothing for him to turn over.


author: Per Curiam. Mr. Justice Douglas.

text:
    ODOM v. UNITED STATES
    No. 300.
    Decided November 9, 1970
   Per Curiam.

A writ of certiorari was granted in this case on June 22, 1970, 399 U. S. 904, limited to the question of the retro-activity of our decision in North Carolina v. Pearce, 395 U. S. 711. Since the granting of the writ there has come to the attention of the Court an order of Judge McRae of the United States District Court for the Middle District of Florida, dated July 1, 1970, denying a motion of petitioner Odom to set aside his. second sentence as illegally imposed under Pearce, supra. The order makes it clear that the greater severity of the second sentence was based on conduct on the part of the petitioner occurring after the time of the original sentencing proceeding, and that the new information was specifically referred to at resentencing. Since it is now apparent that this case does not present the issue of the retroactivity of North Carolina v. Pearce, supra, the writ is dismissed as improvidently granted.

Mr. Justice Douglas.

The question - is whether North Carolina v. Pearce, 395 U. S. 711, should be retroactive. In that case we said that “the factual data upon which the increased. sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.” Id., at 726. The information now reported to us by the District Court was never made á part of the record,. Hence an issue of retroactivity of Pearce is present .and I would decide the case on the1 merits.


author: Mr. Justice White Mr. Justice Brennan,

text:
    NORTH CAROLINA v. ALFORD
    No. 14.
    Argued November 17, 1969 — Reargued October 14, 1970—
    Decided November 23, 1970

      White, J., delivered the opinion of the Court, in which Burger, C. J., and HarlaN, Stewart, and BlackmuN, JJ., joined. Blach, J., filed a statement-concurring in the judgment, post, p. 39. BreN-NAN, J., filed a dissenting opinion, in which Douglas and Marshall, JJ., joined, post, p. 39.

      Jacob L. Safron reargued the cause for appellant. With him on the briefs were Robert Morgan, Attorney General of North Carolina, and Andrew A. Vanore, Jr., joined in and adopted by the Attorneys General for their respective States as follows: Joe Purcell of Arkansas, David P. Buckson of Delaware, William J. Scott of Illinois, John B. Breckinridge óf Kentucky, Joe T. Patterson of Mississippi, find Robert L. Woodahl of Montana; by the Government of the Virgin Islands; and by the National District Attorneys Association.

      Doris R. Bray, by appointment of the Court, 394 U. S. 1010, reargued the cause and filed briefs for appellee.

      Jack Greenberg, James M. Nabrit III, Michael Melts-ner, Ñorman C. Amaker, Charles Stephen Ralston, Anthony G. Amsterdam, J. LeVonne Chambers, and James E. Ferguson II filed a brief for Albert Bobby Childs et al. as amici curiae.

   Mr. Justice White

delivered the opinion of the Court.

On December 2, 1963, Alford was indicted for first-degree murder, a capital offense under North Carolina law. The court appointed an attorney to represent him, and this attorney questioned all but one of the various witnesses who appellee said would substantiate his claim of innocence. The witnesses, however, did-not support Alford’s story but gave statements that strongly ■ indicated his guilt. Faced with strong evidence of guilt and no substantial evidentiary support for the claim of innocence, Alford’s attorney recommended that he .plead guilty, but .left the ultimate decision to Alford himself. The prosecutor agreed to accept a plea of guilty to a charge of. second-degree murder, and on December 10, 1963, Alford pleaded guilty to the reduced charge.

Before the plea was finally accepted by the trial court, the court heard the sworn testimony of a police officer who summarized the State’s case. Two other witnesses besides Aiford were also heard. Although there was no eyewitness to the crime, the testimony indicated that shortly before the killing Alford took his gun from his house, stated his intention to kill the victim, and returned home with the declaration that he had carried out the killing. After the summary presentation of the State’s case, Alford took the stand and testified that he had not committed the murder but that he was pleading guilty because he faced the.threat of the death penalty if he did not do so. In response to the questions of his counsel, he acknowledged that his counsel had informed him of -the difference between second- and first-degree murder and of his rights in case he chose to go to trial. The trial court then asked appellee if, in light of his denial of guilt, he still desired to plead guilty to second-degree murder and appellee answered, “Yes, sir. I plead guilty on — from the circumstances that he [Alford’s attorney] told me.” - After eliciting information about Alford’s prior criminal record, which was a long one, the trial court sentenced him to 50 years’ imprisonment, the maximum penalty for second-degree, murder.

• Alford sought post-conviction relief in the state court. Among the claims raised was the claim that his plea of guilty was invalid because it was the product of fear and coercion. After a hearing, the state court in 1965 found that the plea was “willingly, knowingly, and understandingly” made on the advice of competent counsel and in the face of a strong prosecution case. Subsequently, Alford petitioned for a writ of habeas corpus, first in the United States District Court for the Middle District of North Carolina, and then in the Court of Appeals for the Fourth Circuit. Both courts denied, the writ on the basis of the state court’s findings that Alford yoluntarily and knowingly agreed to plead guilty. In 1967, Alford again petitioned for a writ of habeas corpus in the Dis-. trict Court for the Middle District of North Carolina. That court, without an evidentiary, hearing, again denied relief on the grounds that the guilty plea was voluntary and waived all defenses and nonjurisdictional' defects in any prior stage of the proceedings, and that the findings of the state court in 1965 clearly required rejection of Alford’s claim that he was denied effective assistance of-counsel prior to pleading guilty. On appeal, a divided panel of the Court of Appeals for the Fourth Circuit reversed on the ground that Alford’s guilty plea was made involuntarily. 405 F. 2d 340. (1968). In reaching itá conclusion, the Court of Appeals relied heavily on United States v. Jackson, 390 U. S. 570 (1968), which the court read to require invalidation of the North Carolina statutory framework for the imposition of the death penalty because North Carolina statutes encouraged defendants to waive constitutional rights by the promise of no more than life imprisonment if a guilty plea was offered and accepted. Conceding that Jackson did not require the automatic invalidation of pleas of guilty entered under the North Carolina statutes, the Court of Appeals ruled that Alford’s guilty plea was involuntary because its principal .motivation was fear of the death penalty. By this standard, even if both the judge and the jury had possessed the 4)0wer to impose the death, penalty for first-degree murder or if guilty pleas to capital charges had not been permitted, Alford’s plea of guilty to second-degree murder should still have been rejected because impermissibly induced by his desire to eliminate the possibility of a death sentence. We noted probable jurisdiction. 394 U. S. 956 (1969). We vacate the judgment of the Court of Appeals and remand the case for further proceedings.

We held in Brady v. United States, 397 U. S. 742 (1970), that a plea of guilty which would not have been entered except for the defendant’s desire to avoid.a possible death penalty and to limit the maximum penalty to life imprisonment or a term of years was not for that reason compelled within the meaning óf it 3 Fifth Amendment. , Jackson established no new test for determining the validity of guilty pleas. Th,e standard was' and remains whether the plea represents a voluntary and intelligent choice among the alternative courses .of action open to. the defendant. See Boykin v. Alabama, 395 U. S. 238, 242 (1969); Machibroda v. United States, 368. U. S. 487, 493 (1962); Kercheval v. United States, 274 U. S. 220, 223 (1927). That he would not have pleaded except for the opportunity to limit the possible penalty does not necessarily demonstrate that the plea of guilty was not the product of a free and rational choice, especially where the defendant was represented'by competent counsel whose advice was that the plea would be to the defendant’s' advantage; The standard fashioned and applied by the Court of Appeals was therefore erroneous and we would, without more, vacate and remand the case for further proceedings with respect to any other claims of Alford .which are properly before that court, if it were not for' oth.er 'circumstances appearing in the record which might seem to warrant an affirmance of the Court of Appeals.

As previously recounted, after Alford’s plea of guilty was offered and the State’s case was placed before the judge, Alford denied that he had committed the murder but reaffirmed his desire to plead guilty to avoid a possible death sentence and to limit the penalty to the 30- ' year maximum provided for second-degree murder. Ordinarily; a judgment of conviction resting on a plea of guilty is justified by the defendant’s admission that he committed the crime charged against him and his consent that judgment be entered without a trial of any kind. The plea usually subsumes both elements, and justifiably so, even though there is no separate, express admission by the defendant that he committed the particular acts claimed to constitute the crime charged in the indictment. See Brady v. United States, supra, at 748; McCarthy v. United States, 394 U. S. 459, 466 (1969). Here Alford entered his plea but accompanied it with the statement- that he had not shot the victim:.

If Alford’s statements were to be credited as sincere assertions of his innocence, there obviously existed a factual and legal dispute between him and the State. Without more, it might be argued that the conviction entered on his guilty plea was invalid, since his assertion . of innocence negatived any admission of guilt, which, as we observed last Term in Brady, is normally “[c]entral to the piea and the foundation for entering judgment against the defendant . . . .” 397 U. S., at 748.

In addition to Alford’s statement, however, the court had heard an account of the events on the night of the murder, including information from Alford’s acquaintances that he had departed from his home with his gun stating his intention to kill and that he had later declared that he had carried out his intention. Nor had Alford wavered in his desire to have the trial court determine his guilt without, a jury trial. Although denying the charge against him, he nevertheless preferred the dispute between him and the State to be settled by the judge in the context of a guilty plea proceeding rather than by a formal trial. ' Thereupon, with the State’s telling evidence and Alford’s denial before it. the trial court proceeded to convict and sentence Alford for second-degree murder.

State and lower federal courts are divided upon whether a guilty plea can be accepted when it is accompanied by protestations of innocence and hence contains only a waiver of trial but no admission of guilt. Some courts, giving expression to the principle that “[o]ur law only authorizes a conviction where guilt is shown,” Harris v. State, 76 Tex. Cr. R. 126, 131, 172 S. W. 975, 977 (1915), require that trial judges reject such pleas. See, e. g., Hulsey v. United States, 369 F. 2d 284, 287 (CA5 1966); United States ex rel. Elksnis v. Gilligan, 256 F. Supp. 244, 255-257 (SDNY 1966); People v. Morrison, 348 Mich. 88, 81 N. W. 2d 667 (1957); State v. Reali, 26 N. J. 222, 139 A. 2d 300 (1958); State v. Leyba, 80 N. M. 190, 193, 453 P. 2d 211, 214 (1969); State v. Stacy, 43 Wash. 2d 358, 361-364, 261 P. 2d 400/402-403 (1953). But others have concluded that they should not “force any defense on a defendant in a criminal case/’ particularly' when advancement of the defense might “end in disaster . . . .” Tremblay v. Overholser, 199 F. Supp. 569, 570 (DC 1961). They have argued that, since “guilt, or the degree of guilt, is at times uncertain and elusive,” “[a]n accused, though believing in or entertaining doubts.respecting his innocence, might reasonably conclude a jury would be convinced of his guilt and that he would fare better in the sentence by pleading guilty . . . .” McCoy v. United States, 124 U. S. App. D. C. 177, 179, 363 F. 2d 306, 308 (1966). As one state court observed nearly a century ago, “[rjeasons other than the fact that he is guilty may induce a defendant to so plead, . . . [and] [h]e must be permitted to judge for himself in this respect.” State v. Kaufman, 51 Iowa 578, 580, 2 N. W. 275, 276 (1879) (dictum). Accord, e. g., Griffin v. United States, 132 U. S. App. D. C. 108, 405 F. 2d 1378 (1968); Bruce v. United States, 126 U. S. App. D. C. 336, 342-343, 379 F. 2d 113, 119-120 (1967); City of Burbank v. General Electric Co., 329 F. 2d 825, 835 (CA9 1964) (dictum); State v. Martinez, 89 Idaho 129, 138, 403 P. 2d 597, 602-603 (1965); People v. Hetherington, 379 Ill. 71, 39 N. E. 2d 361 (1942); State ex rel. Crossley v. Tahash, 263 Minn. 299, 307-308, 116 N. W. 2d 666, 672 (1962); Commonwealth v. Cottrell, 433 Pa. 177, 249 A. 2d 294 (1969). 4 Cf. United States ex rel. Brown v. LaVullee, 424 F. 2d 457 (CA2 1970).

This Court has not confrontéd this precise issue, but prior decisions do yield relevant principles. ' In Lynch v. Overholser, 369 U. S. 705 (1962), Lynch, who had been charged in the Municipal Court of the District of Columbia with drawing and negotiating bad checks, • a misdemeanor punishable by a maximum of one year in jail, sought to enter a plea of guilty, but the trial, judge refused to accept the plea since a psychiatric report in the judge’s possession indicated that. Lynch had been suffering from “a manic depressive psychosis, at the time of the crime - charged,” and hence might. have been not guilty by reason of insanity. Although at the subsequent trial Lynch did not rely on the insanity defense, he was found' not guilty by reason of insanity and committed for an indeterminate period to a mental institution. On habeas corpus, the Court ordered his release, construing the "congressional legislation seemingly authorizing the commitment as not reaching a' case where the accused preferred a guilty plea to a plea of insanity. The Court expressly refused to rule that Lynch had an absolute right to have his guilty plea accepted, see id., at 719, but implied that there would havé been no constitutional error had his-plea been accepted even though evidence before the judge indicated that there was a valid defense.

The issue ■ in Hudson v. United States, 272 U. S. 451 (1926), was whether a federal court has power to impose a prison sentence after accepting a plea of nolo contendere, a plea by which a defendant does not expressly admit his guilt, but nonetheless waives his right to a trial and authorizes the court for purposes of the case to treat him as if he were guilty. The Court held that a trial court does have such power, and, except for the cases which were rejected in Hudson, the federal courts have uniformly followed this rule', even in cases involving moral turpitude. Bruce v. United States, supra, at 343 n. 20, 379 F. 2d, at 120 n. 20 (dictum). See, e. g., Lott v. United States, 367 U. S. 421 (1961) (fraudulent evasion of income tax); Sullivan v. United States, 348 U. S. 170 (1954) (ibid.); Farnsworth v. Zerbst, 98 F. 2d 541 (CA5 1938) (espionage); Pharr v. United States, 48 F. 2d 767 (CA6 1931) (misapplication of bank funds); United States v. Bagliore, 182 F. Supp. 714 (EDNY 1960) (receiving stolen property). Implicit in the nolo con-tendere cases is a recognition, that the Constitution does not bar imposition of a prison sentence upon an accused who is unwilling expressly to admit his guilt but who, faced with grim alternatives, is willing to waive his trial and accept the sentence,.

These cases would be directly in point if Alford had simply insisted on his plea but refused to admit the crime. The fact that his plea was denominated a plea of guilty rather than a plea of nolo contendere is of no constitutional significance with respect to the issue now before us, for the Constitution is concerned with the practical consequences, not the formal categorizations, of state law. See Smith v. Bennett, 365 U. S. 708, 712 (1961); Jones v. United States, 362 U. S. 257, 266 (1960). Cf. Kermarec v. Compagnie Generale Transatlantique, 358 U. S. 625, 630-632 (1959). Thus,, while most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty. An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.

Nor can we perceive any material difference between a plea that refuses to admit commission of the criminal act and a plea containing a protestation of innocence when, as in the instant case, a defendant intelligently concludes that his interests require entry of a guilty plea and the record before the judge contains strong evidence of actual guilt. Here the State had a strong case of first-degree murder against Alford. Whether he realized or disbelieved his guilt, he insisted on his plea because in his view he had absolutely nothing to gain by a trial and much to gain by pleading. Because of the overwhelming evidence against him, a trial was precisely what neither Alford nor his attorney- desired. Confronted with the choice between a trial for- first-degree murder, on the one hand, and a plea of guilty to second-, degree murder, on the other, Alford quite reasonably chose the latter and thereby limited the maximum penalty to a 30-year term. When his plea is viewed in light of the evidence against him, which substantially negated his claim of innocence and which further provided a means by which the judge could test whether the plea was being intelligently entered, see McCarthy v. United States, supra, at 466-467 (1969), its validity-cannot be. seriously questioned. In view of the strong factual basis for the plea demonstrated by the State and Alford's clearly expressed desire to enter it despite his professed belief in'his innocence, we hold that the trial judge did not commit constitutional error in accepting it.

Relying on United States v. Jackson, supra, Alford now argues in effect that the State should not have allowed him this choice but should have insisted on proving him guilty of murder in the first degree. The States in their wisdom may take this course by statute or otherwise and may prohibit the practice of accepting pleas to lesser included offenses under any circumstances. But this is not the mandate of the Fourteenth Amendment and the Bill of Rights. The prohibitions against involuntary or unintelligent pleas should not be relaxed, but neither should an exercise-in arid logic render those constitutional guarantees counterproductive and put in jeopardy the very human values they were meant to preserve.

The Court of Appeals for the Fourth Circuit was in error to find Alford’s plea of guilty invalid because it was made to avoid the possibility of the death penalty. That court’s judgment directing the issuance of the writ of habeas corpus is vacated and the case is remanded to the Court of Appeals for further proceedings consistent with this opinion.

It is so ordered.

Mr. Justice Black, while adhering to his belief that. United States v. Jackson, 390 U. S. 570, was wrongly decided, concurs in the judgment and in substantially.all of the opinion in this case.

Mr. Justice Brennan,

with whom Mr. Justice Douglas and Mr. Justice Marshall .join,

dissenting.

Last Term, this Court held, over my dissent, that a plea of guilty may validly be induced by an unconstitutional threat to subject the defendant to the risk of death, so long as the plea is entered in open court and the defendant, is represented by competent counsel who is aware of the threat, albeit' not of its unconstitutionality. Brady v. United States, 397 U. S. 742, 745-758 (1970); Parker v. North Carolina, 397 U. S. 790, 795 (1970). Today the Court makes clear that its previous holding was intended to apply even when the record demonstrates that the actual effect of the unconstitutional threat was to induce a guilty plea from a defendant who was unwilling to admit his guilt.

I adhere to the view that, in any given case, the influence of such an unconstitutional threat “must necessarily be given weight in determining the voluntariness of a plea.” Parker v. North Carolina, 397 U. S., at 805 (dissent). And, without reaching the question whether due process permits the entry of judgment upon a plea of guilty accompanied by a contemporaneous denial of acts constituting the crime, I believe that at the very least such a denial of guilt is also a relevant factor in determining whether the plea was voluntarily and intelligently made. With these factors in mind, it is sufficient in my view to state that the facts set out in the majority opinion demonstrate that Alford was “so gripped by fear of the death penalty” that his decision to plead guilty was not voluntary but was “the product of duress as much so as choice reflecting physical constraint.” Haley v. Ohio, 332 U. S. 596, 606 (1948) (opinion of Frankfurter, J.). Accordingly, I would affirm the judgment of the Court of Appeals.

       Under North Carolina law, first-degree murder is-punished with, death unless the jury recommends that the punishment shall be life imprisonment:
      X“A murder which shall be perpetrated by-means of poison, lying in wait, imprisonment, starving, torture, or by any .other .kind of willful, deliberate'and premeditated killing, or which shall be committed in the perpetration or attempt' to perpetrate any arson,' rape, robbery, burglary, o'r other felony, shall be 'deemed to be murder in the-first degree and shall be punished with death:. Provided, if at the time of rendering its verdict in open court, the jury shall so recommend, the punishment shall be imprisonment for life in the State’s prison, and the-court shall 'sy'instruct the jury. All other kinds of murder shall be deemed murder in the second degree, and shall be punished with imprisonment of not less than two nor more than'thirty years in the State’s prison.” N. C. Gen. Stat. § 14-17 (1969).
      At the time Alford pleaded guilty, North Carolina law provided that' if a guilty plea to a charge of first-degree murder was accepted by the prosecution and the court, the penalty would be life imprison-. ment rather than death. The provision permitting guilty pleas in capital cases was repealed in 1969. See Parker v. North Carolina, 397 U. S. 790, 792-795 (1970). Though under-.present North Caro--lina law it is not possible for a defendant to plead guilty tea capital charge, it seemingly remains possible for a person charged with a , capital offense to plead-guilty to a lesser charge.

       After giving his version of the events of the night of the murder, Alford stated:
      “I pleaded guilty on second ‘degree murder because they said there is too much evidence, but I ain’t shot no man, but I take the fault for the other man. We never had an argument in our , life' and I just pleaded guilty because they said if I didn’t they would gas me for it, and that is all.”
      In response to questions from his attorney, Alford affirmed that he had consulted several times with his attorney and with members of his family and had been informed of his rights if he chose to plead not guilty. Alford then reaffirmed his decision to plead guilty to second-degree murder:
      “Q [by Alford’s attorney]. And you authorized me to tender a plea of guilty to second degree murder before the court?
      “A. Yes, sir.
      “Q. And in doing that, that you have again affirmed your decision on that point?
      “A. Well, I’m still pleading .that you all got me to plead guilty.' I plead the other way, circumstantial evidence; that the jury will prosecute me on — on the second. You told me to plead guilty, right. I don’t — I’m not' guilty but-1 plead guilty.”

       At the state court hearing on post-conviction relief, the testimony confirmed that Alford had been fully informed by his attorney as to his rights on a plea of not guilty and as to the consequences of a plea of guilty. Since the record in this case affirmatively indicates that Alford was aware of the consequences of his plea of guilty and of the rights waived by the plea, no issues of substance under Boykin v. Alabama, 395 U. S. 238 (1960), would be presented even if that case was held applicable to the events here in question.

       Before Alford was sentenced, the trial judge asked Alford about prior convictions. Alford answered that, among other things, he had served six years of a ten-year sentence for murder, had been convicted nine times for armed robbery, and had been convicted for transporting stolen goods, forgery, and carrying a concealed weapon. App. 9-11.

       See n. 1, supra

       Thus if Alford had; entered the same plea in the same way in 1969 after the statute authorizing guilty pleas to capital charges had- been repealed, see n. 1, supra, the result reached by the Court of Appeals should have been the same under that court’s reasoning.

       A third approach has been to decline to rule .definitively that a trial judge must either accept or reject an otherwise valid plea containing a protestation of innocence, but to leave that decision to his sound discretion. See Maxwell v. United States, 368 F. 2d 735, 738-739 (CA9 1966).

       Courts have defined the plea of nob contendere in a variety of different ways, describing it, on the one hand, as “in effect, a plea of guilty,” United States v. Food & Grocery Bureau, 43 F. Supp. 974, 979 (SD Cal: 1942), aff’d,139 F. 2d 973 (CA9 1943), and on the other, as a query directed to the court to determine the defendant’s guilt. State v. Hopkins, 27 Del. 306, 88 A. 473 (1913). See generally Lott v. United States, 367 U. S. 421, 426-427 (1961), id., at 427-430 (Clark, J., dissenting), 21 Am. Jur. 2d, Criminal Law • § 497.. As a result, it is impossible to state precisely what a defendant does admit when he enters a nolo plea in a way that will consistently fit all the cases.

        Hudson v. United States, supra, was also ambiguous. In one place, the Court called the plea “an admission of guilt for the purposes of the case,” id., at 455, but in another, the Court quoted an English authority who had defined the plea as one “where a defendant, in a case not capital, doth not directly own himself guilty ...” Id., at 453, quoting 2 W. Hawkins, Pleas, of the Crown 466 (8th ed. 1824).
      The plea may have originated in the early medieval practice by which defendants wishing to avoid imprisonment would seek to make an end of the matter (finem facere) by offering to .pay a sum of money to the king. See 2 F. Pollock & F. Maitland, History of English Law 517 (2d <?d. 1909). ■ An. early 15th-century case indicated that a defendant did not admit his guilt when he sought such a compromise, but merely “that he put himself on the grace of our Lord, the King, and asked that he might be allowed to pay a fine (petit se admittit per finem).” Anon.¡ Y. B. Hil. '9 Hen. 6, f. 59, pi. 8 (1431). A 16th-century authority noted that a deféndant who so pleaded “putteth hym selfe in Gratiam Regime without anye inore, or by Protéstation that hee is not guiltie . . . ,” W. Lambard, Eirenareha 427 (1581), while an 18th-century case distinguished between a nolo plea and a jury verdict of guilty, noting that in the former the defendant could introduce evidence of innocence in mitigation of punishment, whereas in the latter such evidence was precluded by the finding of actual guilt. Queen v. Templeman, 1 Salk. 55, 91 Eng. Rep. 54 (K. B. 1702).
      Throughout its history, that is, the pléa of nolo contendere has been viewed not.as an express admission of guilt but as a consent by the defendant that he may be punished as if he were guilty and a prayer for leniency. Fed. Rule Crim. Proc. 11 preserves this distinction in its requirement that a court cannot accept a guilty plea “unless it is satisfied that there is a factual basis for the plea”; there is no similar requirement for pleas of nolo con-tendere, since it was thought desirable to permit defendants to plead nolo without making any inquiry into their actual guilt. See Notes of Advisory Committee to Rule 11.

        Blum v. United States, 196 F. 269 (CA7 1912); Shapiro v. United States, 196 F. 268 (CA7 1912); Tucker v. United States, 196 F. 260 (CA71912).

       Because of the importance of protecting the innocent and of insuring- that guilty pleas are a product of free and intelligent choice, various state and federal court decisions properly caution that pleas coupled with claims of innocence should not be accepted-unless there is a factual basis for the plea, see, e. g., Griffin v. United States, 132 U. S. App. D. C. 108, 110, 405 F. 2d 1378, 1380 (1968); Bruce v. United States, supra, at 342, 379 F. 2d, at 119 (1967); Commonwealth v. Cottrell, 433 Pa. 177, 249 A. 2d 294 (1969); and until the judge taking .the plea has inquired into and sought to resolve the conflict between the "waiver of trial and.the claim of innocence. See, e. g., People v. Serrano, 15 N. Y. 2d 304, 308-309, 206 N. E. 2d 330, 332 (1965); State v. Branner, 149 N. C. 559, 563, 63 S. E. 169, 171 (1908). See also Kreuter v. United States, 201 F, 2d 33, 36 (CA10 1952).
      In the federal courts, Fed. Rule Crim. Proc. 11 expressly provides that a court “shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.”

       Our holding does not mean that a.trial judge must accept every constitutionally valid guilty plea merely because a defendant wishes so to plead. A criminal defendant does not have an absolute •right, under the Constitution to have his guilty "plea accepted by the court, see! Lynch v. Overholser, 369 U. S., at 719 (by implication), although the States may by statute or otherwise confer such a right. Likewise, the States may bar their courts from accepting ■ guilty pleas from any defendants who assert their innocence. Cf. Fed. Rule Crim. Próc. 11, which gives a trial judge discretion to “refuse to accept a plea of guilty . . . .” We need not now delineate the scope of that' discretion.

       North Carolina no longer permits pleas of guilty to capital charges but it appears that pleas of guilty may still be offered to lesser included offenses. See n. 1, supra.

       The courts of appeals have expressed varying opinions on this question. Compare McCoy v. United States, 124 U. S. App. D. C. 177, 179-180, 363 F. 2d 306, 308-309 (1966); Bruce v. United States, 126 U. S. App. D. C. 336, 342 n. 17, 379 F. 2d 113, 119 n. 17 (1967); Griffin v. United States, 132 U. S. App. D. C. 108, 109-110, 405 F. 2d 1378, 1379-1380 (1968); Maxwell v. United States, 368 F. 2d 735, 739 n, 3 (CA9 1966) (court may accept guilty plea from defendant unable or unwilling to admit guilt), with United States ex rel. Crosby v. Brierley, 404 F. 2d 790, 801-802 (CA3 1968); Bailey v. MacDougall, 392 F. 2d 155, 158 n. 7 (CA4 1968); Hulsey v. United States, 369 F. 2d 284, 287 (CA5 1966) (guilty plea is infirm if accompanied’ by denial of one or more elements of offense).

        Brady v. United States, 397 U. S., at 750.


text:
    FORNARIS v. RIDGE TOOL CO. et al.
    No. 541.
    Decided November 23, 1970

      Together with No. 543, Puerto Rico v. Ridge Tool Co. et al.

   Per Curiam.

In 1964 by Act No. 75, the Legislature of Puerto Rico enacted the Dealer’s Contract Law which in effect provides that a Puerto Rican dealer’s contract with a manufacturer, regardless of any provisions for termination, is renewable indefinitely at the option of the local dealer unless the manufacturer has “just cause” to terminate. Section 1 (d) defines “just cause” as “nonperformance of any of the essential obligations of the dealer’s contract, on the part of the dealer, or any action or omission on his part that adversely and substantially affects the interests of the principal or grantor in promoting the' marketing or distribution of the merchandise or service.” If a manufacturer terminates for any other reason he is liable for substantial damages.

This cause was brought by a dealer in a Puerto Rican court for damages for breach of his distributorship contract against Ridge Tool Co., an appellee. It was removed to the Federal District Court on the basig of diversity of citizenship. That court denied the motion to'dismiss which claimed that the Dealer's Contract Law upon which the complaint was based was unconstitutional. The Court of Appeals allowed an interlocutory appeal and held the Dealer’s Contract Law unconstitutional. 423 F. 2d 563.

The relations of the federal courts to Puerto Rico have often raised delicate problems. It is a Spanish-speaking Commonwealth with a set of laws still impregnated with the Spanish tradition. . Federal, courts, reversing Puerto Rican courts, were inclined to construe Puerto Rican laws in the Anglo-Saxon tradition which often left little room for the overtones of Spanish culture. Out of that experience grew a pronouncement by this Court that a Puerto Rican coürt should hot be overruled on its construction of local law unless it" cbiild be said to be “inescapably wrong.” See Bonet v. Texas Co., 308 U. S. 463, 471.

The- question presented here is akin to that question, for we deal with a rather vague Puerto Rican law that the Supreme Court of Puerto Rico has not authoritatively -construed. Only last Term in Reetz v. Bozanich, 397 U. S. 82, we held that a three-judge federal court should not have proceeded to strike down an Alaska law which, if construed by the Alaska Supreme Court, might be so confined as not to have any constitutional infirmity. We said, “A state court decision here . . . could conceivably •avoid any decision under the Fourteenth Amendment and would avoid any possible irritant in the federal-state relationship.” Id., at 86-87.

In this cause the Court of Appeals held that “just cause” placed substantial liability on a. manufacturer who had contracts that he could have terminated without liability prior to the new statute. This retrospective impact, the court held, violated “the due process clause of the federal constitution” — without saying whether the Fifth or the Fourteenth Amendment was involved. 423 F. 2d, at 566-567.

Whether the Supreme Court of Puerto Rico would give the same broad sweep to “just cause” as did the Court of Appeals is something we do not know. It is conceivable that “just cause” might be judicially confined to a more narrow ambit which would avoid all constitutional questions. We therefore reverse and direct the Court of Appeals to remand the cases to the District Court with instructions to hold its hand until the Puerto Rican Supreme Court has authoritatively ruled on the local law question in light of - the federal claims. See England v. Medical Examiners, 375 U. S. 411, 420.

It is so ordered.

       Appellants invoked 28 U. S. G. § 1254 (2) as the authority for these appeals. That provision provides that a judgment in the Court of Appeals may be.brought here “[b]y appeal by a party relying on a State statute held by k court of appeals to be invalid as repugnant to the Constitution . . . But a Puerto Rican statute is not a “State statute” within § 1254 (2). (Emphasis supplied.} It is true that statutes enacted in 1961 require that this Court treat the Puerto Rican courts as the equivalent of state courts for purposes of -appeal and certiorari. It is expressly provided in 75 Stat. 417, 28 U. S. C. § 1258, that “[f]inal judgments or decrees rendered by the Supreme Court of the Commonwealth of Puerto Rico” may be reviewed by this Court by appeal, or by.writ of certi-orari, in the situations where that route is available for review of the judgments of the highest courts of the States. Significantly, however, no parallel provision was added to § 1254 (2) to permit appeals here from the courts of appeals by a party relying on a Puerto Rican statute. Whether the omission was by accident or by design, our practice of strict construction of statutes authorizing appeals dictates thatj we not give an expansive interpretation to the word “State.” We see no merit in the argument that we have already done so in our Rule 61 defining “state court” to include the Puerto Rican Supreme Court and “law and statutes of a state” to include “the law and statutes of the Commonwealth of Puerto Rico.” That rule was adopted only to implement 28 U. S. C. § 1258 dealing with review by appeal or certiorari of final judgments of the Supreme Court of Puerto Rico. We therefore hold that the appeals are improper and they are dismissed, and accordingly we treat the jurisdictional statements as-petitions for writs of certiorari and grant them on that basis. 28 U. S..C. § 2103; El Paso v. Simmons, 379 U. S. 497, 501-503.

       In McGregor-Doniger, Inc. v. Superior Court, decided March 17, 1970, the Supreme Court referred briefly to the “just cause” provision in the Act:
      “It is apparent from the pleadings that the cancellation of the contract in this case ‘due to changes .we are now making in our ■ sales representation throughout the world’ is cause to cancel it, since in the contract it was agreed that it could be cancelled by 30 days’ written notice. But it is also clear that such cause or reason is not the ‘just cause’ which permits the cancellation of a-distributorship contract in accordance with’ the provisions of Law #75, supra.”'

       Art. II, § 7, of the Constitution of Puerto Rico provides that “[n]o person shall be deprived of his liberty or property without due process of law,” “life” being excluded because § 7 abolishes the death penalty. That Constitution was approved by Congress. See H. R. Rep. No. 1832, 82d Cong., 2d Sess.; H. R. Rep. No. 2350, 82d Cong., 2d Sess.; S. Rep. No. 1720, 82d Cong., 2d Sess.

       Under Puerto Rico’s laws its courts have broad powers “to declare rights, status, and other legal relations whether or not further relief is or could be claimed.” P. R. Laws Ann., Tit. 32, c. 247, § 2991. That form of remedy reaches' a person “interested in” a contract or whose rights are “affected by any statute . . . contract or franchise.” • Id., § 2992.


text:
    ARNOLD TOURS, INC., et al. v. CAMP et al.
    No. 602.
    Decided November 23, 1970
   Per Curiam.

Petitioners are 42 independent travel- agents doing business in Massachusetts. They ask for declaratory and injunctive relief against the Comptroller of the Currency and the South Shore National Bank. They seek to invalidate a ruling by the Comptroller that, incidental to their banking. services, national banks may provide travel services for their customers. Petitioners allege that as a result they have lost substantial business and profits and stand to lose even greater business in the future. They contend the Comptroller exceeded his authority when he authorized national banks to provide travel services.

The District Court dismissed the complaint for lack of standing and the Court of Appeals affirmed. 408 F. 2d 1147 (CAI 1969.). Following our decisions last Term in Association of Data Processing Service Organizations, Inc. v. Camp, 397 U. S. 160, and Barlow v. Collins, 397 U. S. 159, we vacated and remanded the case for reconsideration (397 U. S. 315) and the Court of Appeals reaffirmed its previous decision.

Here, as in Data Processing, we are concerned with § 4 of the Bank Service Corporation Act, 76 Stat. 1132, 12 U. S. C. § 1864. In Data Processing we did not rely on any legislative history showing that Congress desired to protect data processors alone from competition. Moreover, we noted a growing trend “toward enlargement of the class of people'who may protest administrative action.” 397. U. S., at 154. We held that § 4 “arguably brings a competitor within the zone of interests protected by it.” Id., at 156. Nothing in the opinion limited § 4 to protecting only competitors in the data-processing field. When national banks begin to provide travel services for their customers, they compete with travel agents no less than they'compete with data processors when they, provide data-processing services to their -customers.

Accordingly the writ of certiorari is granted, the judgment is reversed, and the case is remanded for proceedings consistent with this opinion.

Reversed and remanded.

The Chief Justice and Mr. Justice Harlan would set the case for argument.

       Paragraph 7475 of the Comptroller’s Manual for National Banks provides: “Incident to those powers vested in them under 12 U. S. C. .24, national banks may provide travel services for their customers and receive compensation therefor. Such services may include the sale of trip insurance and the rental of automobiles, as agent for a local rental service. In connection therewith, national banks may advertise, develop, and extend such travel services for the purpose of attracting customers to the bank.”

       “No bank service corporation may engage in any activity other than the performance of bank services for banks.”

       The only legislative history of the Bank Service Corporation Act mentioned in the opinion was that § 4 was a “ ‘response t.o the fears expressed by a few senators, that without such a prohibition, the bill would have -enabled “banks to engage in a nonbanking activity,” S. Rep. No. 2105 [87th Cong;, 2d-Sess., 7-12] (Supplemental views of Senators Proxmiire, Douglas, and Neuberger), and thus constitute “a serious exception to the accepted public policy which strictly limits banks to banking.” .(Supplemental views of . Senators Muskie and Clark).’ ” 397 U. S., at 155.

       The final question under Data Processing, whether judicial review of the administrative decision has been precluded,' was specifically' Tesolved against the Comptroller in that case. 397 U, S., at 157.


author: Mr. Justice Douglas

text:
    HICKEL, SECRETARY OF THE INTERIOR v. OIL SHALE CORP. et al.
    No. 25.
    Argued October 22, 1970
    Decided December 8, 1970

      Douglas, J., delivered the opinion of the Court, in which Black, BrennaN, and BlackmüN, JJ., joined. Burger, C. J., and Stewart, J., filed a dissenting statement, post, p. 61. Harlan,White, and Marshall, JJ., took no part in the consideration or decision of the case.

      Peter L. Strauss argued the cause for petitioner. With him on the briefs were Solicitor General Griswold, Assistant Attorney General Kashiwa, S. Billingsley Hill, Thos. L. McKevitt, and Edmund B. Clark.

      Fowler Hamilton argued the cause for respondents. With him on the briefs for. respondents Oil Shale Corp. et al. were Richard W. Hulbert and Donald L. Morgan. John D. Knodell, Jr., Fred M. Winner, and Warren O. Martin filed a brief for respondents Umpleby et al.
   Mr. Justice Douglas

delivered the opinion- of the Court.

This case involves six groups of claims to oil shale located in Colorado and asserted under the General Mining Act of 1872, 17 Stat. 91, now 30 U. S. C. §§ 22, 26, 28, and 29. Section 28 provides that until a patent issued “not less than $100 worth of labor shall be performed or improvements made during each year.” And § 29 provides that a patent to the claim could issue on a showing that the claimant had expended $500 worth of labor or improvements on the claim; ' These claims are not patented and were canceled in the early 1930’s on the ground that the amount of labor or improvements specified in § 28 had not been made “during each year.”

Some of the claimants in this case applied for patents bétween 1955 and 1962! The General Land Office rejected the patent applications because the claims had been canceled. On appeal, the Secretary of the Interior, acting through the Solicitor, ruled that these cancellations were effective, later judicial determinations of the invalidity of the grounds for cancellation notwithstanding-. Union Oil Co., 71 I. D. 169. These claimants then sought an order to compel the Department to issue the patents. They argued that the Land Office was without authority to cancel the claims when it did and that the Secretary of the Interior had nullified all the contest proceedings in 1935. In the alternative, they sought judicial review of those contest rulings. Respondent Oil Shale Corp. commenced this action in the District Court, not to require the Secretary .to issue a patent, but to expunge the rulings of the Secretary canceling the claims and to enjoin him from enforcing them. All the cases were consolidated for trial in the District Court. The District Court granted the relief, 261 F. Supp. 954, and the Court of Appeals affirmed, 406 F. 2d 759, both holding that cancellations for lack of assessment work were void because the Department did not have jurisdiction over the subject matter. The case is here on petition for certiorari, which we granted to consider whether- Wilbur v. Krushnic, 280 U. S. 306, and. Ickes v. Virginia-Colorado Development Corp., 295 U. S. 639, had been correctly construed and applied to invalidate the Secretary’s action in protection of the public domain.

Before we come to a consideration of the Krushnic and Virginia-Color ado cases it should be noted that in 1920, Congress by enacting § 21 of the Mineral Lands Leasing Act, 41 Stat. 445, 30 U. S. C. §241 (a), completely changed the national policy over the disposition of oil .shale lands. Thereafter such lands were no longer open to location and acquisition of title but only to lease. But § 37 contained a Saving Clause which covered “valid claims existent on February 25, 1920, and thereafter maintained in compliance with the laws under which initiated, which claims may be perfected under such laws, including discovery.” 30 U. S. C. § 193. Respondents contend that their claims fall within that’ exception.

Respondents assert that a like claim was recognized and approved in the Krushnic case. In that case, however, labor in the statutory amount had been performed, including the aggregate amount of $500. The only default was in the failure to perform labor for one year during the period. Mandamus for the issuance' of a patent was directed, the Court saying:

“Prior to the passage of the Leasing Act, annual performance of labor was not necessary to preserve the possessory right, with all the incidents of ownership , as against the United States, but only as against subsequent relocators. So far as the gov-, ernment was concerned, failure to do assessment work for any year was without effect. Whenever $500 worth of labor in the aggregate had been performed, other requirements aside, the owner became entitled to a patent, even though in some years annual- assessment labor had been omitted.” 280 U. S.,-at 317..

The Court further held that the claims were “maintained” within the Saving Clause of the Leasing Act by a resumption of the assessment work before a challenge of the claim by the United States had intervened.

Virginia-Colorado also involved claims on which labor had been expended except for one year. It was alleged, however, that the claimant had planned to resume the assessment work but for the Secretary’s adverse action and that the claims had not been abandoned. The Court, held that the claims had been “maintained” within the meaning of the Saving Clause of the Leasing Act of 1920.

Those two cases reflect a judicial attitude of fair treatment for claimants who have substantially completed the assessment work required by 30 U.,S. C. § 28. There are, however, dicta both in Virginia-Colorado and in Krushnic .that, the failure to do assessment work gives the Government no ground for forfeiture but inures only to the benefit of relocators.

Indeed 30 U. S. C. § 28, which derives from the 1872 Act, as already noted, provides that upon the failure to do the assessment work, “the claim or mine upon which such failure occurred shall be open to relocation in the same manner as if no location of the same had ever been made,” provided the assessment work has not been “resumed” upon the claim “after failure and before such location.” It is therefore argued that so far as the. 1872 Act is concerned the failure to do the assessment work concerns not the Government but only “rival or adverse claimants.”

The problem in those two cases and the present one concerns the Saving Clause in the Leasing Act which, as noted, makes available for patent “valid claims existent on February 25, 1920, and thereafter maintained in compliance. with the laws under which initiated.” Con-cededly, failure to.maintain a claim made it “subject to disposition only” by leasing by the United States. See § 37 of the 1920 Act, -30 U. S. C. § 193. Hence if wfe assume, arguendo, that failure to do assessment work as provided in the 1872 Act concerned at the time only the claimant and any subsequent relocator, the United States, speaking through the Secretary of the Interior, became a vitally interested party by reason of the 1920 Act. For it was by that Act that Congress reclaimed portions of the public domain so that land might be disposed of by a different procedure (leasing) to the same end (oil shale production) or devoted to wholly different purposes within the purview of public policy as determined by Congress.

It appears that shortly béfore 1920 oil shale’ claims were affected by a speculative fever: Then came a period of calm. By the late forties and continuing into the sixties speculators sought out the original locators or their heirs, obtained quitclaim deeds from them, and thereupon eliminated all other • record titleholders by performing assessment work for one year. It appears that .-94 of the 98 claims involved in the present litiga- • tion were of that character. There, is nothing reprehensible in the practice, if the procedure is one which Congress has approved. But the command of the 1872 . Act is that .assessment work of. $100 be done “during each year” and the Saving Clause of § 37 of the 1920 Act requires that for bends to escape the leasing requirement the claims must be “maintained in compliance with the laws under which initiated.”

The legislative history of the 1872 Act does not throw much light on the problem. Senator Cole, ■ proponent of that Act, explained, however, that the requirement of assessment work was made to' adopt .the Spanish law which granted mining titles but subjected them “to what’ they term denouncement of the-title or defeasance of the title upon a failure. to w;ork the mine after a .certain time.” Cong. Globe, 42d Cong., 2d Sess., 2459 (1872). While the objective of the 1872 Act was to open the lands “to a beneficial use by -some other party,” once the original claimant defaulted, the defeasance inevitably accrued to the United States, owner of the fee. On that premise it would seem that the dicta in Krushnic and in Virginia-Colorado are not valid.

The history of the 1920 Act, throws a little light on the problem.

In the Senate there was considerable debate over, the addition of the words “including discovery” at the end of § 37, which contains the Saving Clause.

“Mr. JONES of New Mexico. Suppose we use the words ‘including discovery.’
“Mr. SMOOT. Very well; if the Senator desires to insert the words ‘including discovery’ I shall offer no objection.
“Mr. WALSH of Montana. Mr. President, I was going to say to Senators that to my mind discovery does not necessarily perfect the claim, because the claimant would not be entitled to a patent unless he had performed $500 worth of work, and in a jusCsense his claim would not be protected.
“Mr. SMOOT. The words ‘under such laws’ cover everything — the $500 worth of work, discovery, and everything else.
“Mr. WALSH of Montana. But the.words ‘including discovery,’ now proposed, it seems to me, will make it plain.
“Mr. SMOOT. I have no objection to those words going in the bill.” 58 Cong. Rec. 4584.

The “perfection” of the claims “under Such laws” thus seemingly meant compliance with “everything” under 30 U. S. C. § 28, which taken literally would mean assessment work of $100 “during each year.”

If we were to. hold to the contrary that enforcement of the assessment work of § 28 was solely at the private initiative of relocators, the “maintenance” provision of § 37 becomes largely illusory, because relocation of oil shale claims became impossible after the 1920 Act. So if enforcement of the assessment work requirement of §28 were dependent solely on. the'activities and energies of oil shale relocators, there was no effective enforcement device. While the area covered by the claims might possibly be relocated for wholly different purposes, the likelihood was so remote that the Court of Appeals concluded that: “The old claims were thus sheltered by the [1920] Act.” 406 F. 2d, at 763. That meant that a claim could remain immune from challenge by anyone with or without any assessment work, in complete defiance of the 1872 Act.

The Court concluded in Virginia-Colorado that the lapse in assessment work was no basis for a charge of abandonment. 295 U. S., at 645-646. We construe that statement to mean that on the facts of that case failure to do the assessment work was not sufficient to establish abandonment. Biit it was well established that tí^e failure to do assessment work was evidence of abandonment. Union Oil Co. v. Smith, 249 U. S. 337, 349; Donnelly v. United States, 228 U. S. 243, 267. If, in fact, a claim had been abandoned, then the reloeators were not the only ones interested. The United States had an interest in retrieving the lands. See G. Widman, T. Brightwell, & J. Haggard, Legal Study of Oil Shale on Public Lands 189-193 (1969). The policy , of leasing oil shale lands under the 1920 Act gave the United States a keen interest in recapturing those, which had not been “maintained” within the meaning of § 37 of that Act. We agree with the Court in Krushnic and Virginia-Colorado that every default in assessment work does not cause the claim to be lost. Defaults, however, might be the equivalent of abandonment; and we now hold that token assessment work, or assessment , work that does not substantially satisfy the requirements of 30 U. S. C. ■ § 28, is not adequate to “maintain” the claims within the meaning of § 37 of the Leasing Aet. To hold otherwise would help defeat the policy that made the United States, as the prospective recipient of royalties, a beneficiary of these oil shale claims-. We cannot support Krushnic and- Virginia-Colorado on so broad a ground. Rather, their dicta to the contrary, we conclude that they must be confined to situations where there had been substantial compliance with the assessment work requirements of the 1872 Act, so that the “possessory title” of the claimant, granted by 30 U. S. C. § 26, will not be disturbed on flimsy or insubstantial grounds.

Unlike the claims in Krushnic and Virginia-Colorado, the Land Commissioner’s findings indicate that the present claims had not substantially met the conditions of i 28 respecting assessment work. Therefore we cannot say that Krushnic and Virginia-Colorado control this litigation. We disagree with the dicta in these opinions that default in doing the assessment work inures only to the benefit of relocators, as we are of the view that § 37 of the 1920 Act makes the United States the beneficiary of all claims invalid for lack of assessment work or otherwise. It follows that the Department of the Interior had,, and has, subject matter jurisdiction over contests involving the performance of assessment work. We conclude therefore that the judgments below must be reversed.

Respondents rely upon the response of the Department of the Interior to the Virginia-Colorado case in which the Secretary declared, the contest in that case to be “void.” ' He also declared that “other Departmental decisions in conflict with this decision are hereby overruled.” Shale Oil Co., 55 I. D. 287, 290. This decision, they argue,, nullified the previous contest proceedings in which their claims were voided. Moreover, they contend that this administrative rule of 35 years, upon which the Department itself has relied, may not ■ now be retroactively changed. In addition, they claim that these contest decisions, if still valid, are subject to direct judicial -review, at this time, testing both substantive and procedural errors, such as lack of notice.

These contentions present questions not decided below. Therefore, on remand all issues relevant to the current validity of those contest proceedings will be. open, including the availability of judicial review at this time. To the extent that they are found void, not controlling, or subject to review, all issues relevant to the invalidity of the claims will be open, including inadequate assessment , work, abandonment, fraud, and the like. Likewise all issues concerning the time, amount, and nature of the assessment work will be open so .that the claimants will have an opportunity to bring their claims within the narrow ambit of Krushnic and Virginia-Colorado, as we have construed and limited these opinions.

Reversed and remanded.

Mr. Justice Harlan, Mr. Justice White, and Mr. Justice Marshall took no part in the consideration or decision of this case;

APPENDIX TO OPINION OF THE COURT

One group of claims in question was composed of 48 (Bute) claims located by nine individuals between December 1919 and January 1920, shortly before February 25, 1920, the cutoff date for prior valid claims recognized by the Saving Clause of the 1920 Act. The records show an entry in February 1921 of a “Notice in Lieu of Labor.” No other entries were made. In 1954, a man by the name of Ertl acquired the claims of two of this group. In 1955, he filed an “Affidavit of Annual Labor” and published a forfeiture notice in the newspaper. In 1956, he acquired a decree ir a Colorado court quieting title in him to all interests in all the claims of this group. Another group of 18 (Atlas) claims was located in December 1919 by nine individuals.. In February 1921, a “Notice iii Lieu of Labor” was filed. No other instruments were filed. In 1954, Ertl acquired the interests of two of this group. In July 1955, he filed an “Affidavit of Annual Labor” and published a forfeiture notice. In September, a man named Dutton acquired an interest in the claims of two locators of this group and, in May 1956, Ertl quieted title in himself to the entire group. Another group of 20 (Camp Bird) claims was located in 1920. No instruments were filed regarding annual labor. In 1955, Mr. Dutton acquired the interests of two of the eight, locators, and Mr. Ertl acquired the interests of four in 1956. Ertl filed an “Affidavit of Annual Labor” and published a forfeiture notice. Dutton responded and a court quieted title in the two of them, 75% in Ertl and 25% in Dutton.

In January, Ertl transferred all his interest in the above claims to Energy Resources Technology Land, Inc. (ERTL). Mr. Dutton transferred:any interest he held in the above claims to ERTL and ERTL conveyed title to 16 of the Bute claims, Nos. 33-48, to Dutton. These 16 claims were eventually purchased by Oil Shale Corp. for $1,536,000. In 1963, Oil Shale leased all of the remaining claims from ERTL for $148,000 per year. Forty-six of the Bute claims, including the 16 purchased by Oil Shale, nine of the Atlas claims and all 20 of the Camp Bird claims are involved in the litigation here.

Another group of 20 claims (Carbon 1-8 and Elizabeth 1-12) passed through several hands, and after notice and forfeiture, as above, is held by Wasatch Development Co. and Joseph Umpleby. Sixteen of these are involved here. Another group of four (SW, NW, ÑE, & SE) claims has a similar history, and three of those áre involved here. The last group of claims (Oyler 1-4) is the only group in which there has been no claim of forfeiture. All four of these are involved here.

The Chief Justice and Mr. Justice Stewart dissent. They believe the Court of Appeals in this litigation correctly construed and applied this Court’s decisions in Wilbur v. Krushnic, 280 U. S. 306, and Ickes v. Virginia-Colorado Development Corp., 296 U. S. 639. .Accordingly, unless those decisions are to be overruled, they would affirm the judgment before us.

       Section 28 reads in part:.
      “On each claim located after the 10th day of May 1872, and until a patent has been issued therefor, not less than $100 worth of labor shall be performed or improvements made during each year. . . . [TJ]pon a failure to comply with these conditions, the claim or ■ mine upon which such failure occurred shall be open to relocation in the same manner as if no location of the same had ever been made, provided that the original, locators, their heirs, assigns-, or legal representatives, have not resumed work upon the claim after failure and before such location. . .
      Section 29 reads in part:
      “The claimant at the time of filing this application,. or at any time thereafter, within the sixty days of publication, shall file with the Manager a -certificate of the United States Chief Cadastral Engineer that $500 Worth of labor has been expended or improvements made upon the claim by himself or grantor's . . .

       For a description of the claims involved in this case see the Appendix to this opinion.

       It was admitted that the cancellations may have been erroneous. He declared, however, that the Commissioner of the General Land Office had jurisdiction to make the determinations. Therefore, since the rulings were not appealed from, they were res judicata, not subject to attack in 1962..

       See n. 1, supra. For a. recent account of the operation of the 1872 Act and -the Leasing Act of 1920 see One Third of the Nation’s Land, Report by the Public Land Law Review Commission 124 — 138.

       The regulations provide:
      "The annual expenditure of $100 in labor or improvements on a mining claim, required by section 2324 of the Revised Statutes (30 TJ. S. C. 28), is . . . solely a matter between rival or adverse claimants to the same mineral land, and goes only to the right of possession, the determination of which is committed exclusively to the courts." 43 CFR § 3420.4.

       The value to the Government of the Leasing Act is shown by the magnitude of the interests at stake. We are told that respondent Oil Shale Corp. bid for a lease of 5,120 acres of federal oil shale land in Colorado. 33 Fed. Reg. 16154. The projected operations were estimated to yield' 40 gallons' of oil per ton, the royalty being 244 Per ton. Id., at 16156. The projected mining rate of -66,000 tons per day for 330 days a year would produce an annual .royalty of close to $5,230,000. The project life was 20 years. -

       The lands containing oil shale became open to agricultural ■ and other nonmineral entries including, inter alia, those under the Stock-Raising Homestead Act' of 1916, 39 Stat. 862, 43 U. S. C. § 291 et seq., to oil and gas and sodium leasing under the 1920 Act, to Indian tribal lands in Utah and to grazing districts under the Taylor Grazing Act, 48 Stat. 1269, 43 U. S. C. § 315 et seq.

       See n. 3, Appeiidix, infra.

       The amendment was thereupon agreed to. There was no change made in the House in this respect. H. Rep. No. 398, 66th ■Cong., 1st Sess,, 11. And see the Conference Report, H. R. Rep! .No. 600, 66th Cong., 2d Sess., 16. , .

       The Secretary has held that the old default proceedings are subject to reopening as to any locator for whom receipt-of service is not adequately shown. Union Oil Co. of Calif., 72 I. D. 313.

       Section 37 of the Act, 30 U. S. C. §193, reads in part:
      “The deposits of . . . oil shale . . . herein referred to, in lands valuable for such minerals . . . shall be subject to disposition only in the form and manner provided [in this Act], except as to valid claims existent on February 25, 1920, and thereafter maintained in compliance with the laws under which initiated, which claims may be perfected under such laws, including discovery.”

       Congress suspended the $100 labor or improvements requirement for the year 1919. Such suspensions were also allowed by Congress for the years 1933 to 1938, 1942, 1943, 1948, and 1949.

       By a provision of the 1872 Act, now 30 U. S. C. § 28, where any of several co-owners has not contributed his share.of assessment work, one or more co-owners who have done the work may give the delinquent co-owner notice in writing or by publication for at least once a week for 90 days and if at the end of that time the delinquent fails or refuses to contribute his share, “his interest in the claim shall become the property of his coowners who have made the required expenditures.” That federal right is enforceable in state courts. See Hamilton v. Ertl, 146 Colo. 80, 360 P. 2d 660.
      For the history of the law which allows assessment work on one claim to inure to the benefit of a group of claims see Union Oil Co. v. Smith, 249 U. S. 337, 350-351.