author: Mr. Justice Clark Mr. Justice Stewart,

text:
    BROTHERHOOD OF RAILWAY & STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS & STATION EMPLOYEES v. ASSOCIATION FOR THE BENEFIT OF NON-CONTRACT EMPLOYEES.
    No. 138.
    Argued March 4, 1965.
    Decided April 28, 1965

      James L. Highsaw, Jr., argued the cause for petitioner in No. 138. With him on the brief were Milton Kramer and William J. Donlon.

      Stuart Bernstein argued the cause for petitioner in No. 139. With him on the brief were H. Templeton Brown and Robert L. Stern.

      Solicitor General Cox argued the cause for petitioners in No. 369 and respondents in No. 139. With him on the briefs were Assistant ¡Attorney General Douglas, Daniel M. Friedman, Morton Hollander and John C. Eldridge.

      Alex L. Arguello argued the cause for respondent in Nos. 138 and 369. With him on the brief was Jerome C. Muys.

      Clarence M. Mulholland and Edward J. Hickey, Jr., filed a brief for the Railway Labor Executives’ Association, as amicus curiae, urging reversal in Nos. 138 and 369 and affirmance in No. 139.

      Together with No. 139, United Air Lines, Inc. v. National Mediation Board et al. and No. 369, National Mediation Board et al. v. Association for the Benefit of Non-Contract Employees, also on certiorari to the same court.

   Mr. Justice Clark

delivered the opinion of the Court.

These consolidated cases involve claims of United Air Lines (United) and the Association for the Benefit of Non-Contract Employees of United (the Association), attacking the form of ballot that the Board intends to use in a representation election among United’s employees under § 2, Ninth» of the Railway Labor Act, 44 Stat. 577, as amended, 45 U. S. C. § 152, Ninth (1958 ed.). United also contends that the National Mediation Board (Board) should hold a hearing under the same section, with its participation, to determine the appropriate craft or class in which the election should be held. Before the Board the conflicting unions — Brotherhood of Railway and Steamship Clerks (Brotherhood) and International Association of Machinists (Machinists) — agreed that the appropriate craft or class in which the election should be held was “clerical, office, stores, fleet and passenger service employees” ; over the objection of United the Board ordered an election in this unit to determine which union, if either, would be its bargaining representative. United then filed suit against the Board raising the questions it presses here. This case was dismissed and is here, after affirmance by the Court of Appeals, as No. 139. After this dismissal the Association filed suit against the Board, the Brotherhood being permitted to intervene, and raised substantially the same claims. The District Court enjoined the Board from conducting an election with a ballot that did not permit an employee to cast a vote against collective bargaining representation; the other issues were remanded to the Board for further consideration. 218 F. Supp. 114. The Court of Appeals affirmed these cases by a divided court and they are here as Nos. 138 and 369. 117 U. S. App. D. C. 387, 330 F. 2d 853. Judge Wright, dissenting, thought the District Court was without jurisdiction to enjoin the Board from conducting a representation election, citing Switchmen’s Union v. National Mediation Board, 320 U. S. 297 (1943). We granted certiorari in all three of the cases. 379 U. S. 814.

We hold that the Board satisfied its statutory duty to investigate the dispute; that United is not entitled to be a party to proceedings by which the Board determines the scope of the appropriate craft or class; and that the Board’s choice of ballot for its future elections does not exceed its statutory authority and is therefore not open to judicial review.

1. The Facts.

In January 1947, after lengthy hearings in which United and other airlines participated at the request of the Board, it was determined that the “clerical, office, stores, fleet and passenger service” grouping of employees constituted an appropriate craft or class, within the meaning of the Act, for collective bargaining purposes. Case No. R-1706, N. M. B. Determinations of Craft or Class 423 (1948). All of the parties here, save the Association, participated in this public hearing. Since that time they have participated in other cases involving the same questions decided in R-1706, but, with some exceptions, the Board has continued through the years to hold elections in that craft or class.

In August 1962 the Brotherhood filed with the Board an application under § 2, Ninth to investigate a representation dispute among employees of United. In its original application the Brotherhood proposed to exclude those stores and fleet service personnel then represented by the Machinists. After the Board had advised United and the Machinists of the Brotherhood’s application each informed the Board that in its opinion the application should be dismissed because it did not conform to what the Board had found to constitute a craft or class in Case No. R-1706, supra. Alternatively, United requested that if dismissal was not in order the Board should hold hearings to determine the proper craft or class in which the election should be held. Upon receiving notice of this opposition the Brotherhood amended its application to include the full craft or class approved in R-1706. The Machinists then agreed that this was the appropriate unit in which to conduct the election.

The Board concluded that a dispute existed requiring an election and scheduled one for January 1963. It proposed to use its standard form of ballot which provided for the printing of the names of the labor organizations— in this case, the Brotherhood and the Machinists — with a box below each name for the employee to check the representative preferred. A third space was provided in which the employee could write in the name of any other organization or individual he wished to represent him. There was not a place on the ballot in which the employee could vote specifically for “no union.”

The Board, on December 19, 1962, directed that a list of the employees involved be supplied by United not later than January 14, 1963. On January 11 United advised that the request was premature and requested a hearing as to the scope of the unit involved in the Brotherhood’s amended application. It outlined in some detail the past practices of the Board in dealing with such requests and attacked the continued suitability of the R-1706 determination, asking that the case be re-opened and that the group be divided into three separate crafts or classes. On January 17 the Board denied this request. It pointed out that United on September 7, 1962, had objected to the craft proposed in the Brotherhood’s original application on the sole ground that it did not conform to R-1706; that the Brotherhood had then amended its request to conform with R-1706; that United had been notified of this change on October 8, 1962; that on October 24 the Board had requested United to furnish the number of employees in the craft or class as amended and that it had furnished this information on November 2, stating that there were 12,451 as of a given date; and that it had failed to furnish the names of the employees. The Board then commented that “the carrier is not a party to this representation dispute”; that “no request for a review of... Case No. R-1706, et al. has been received from either organization party to NMB Case No. 3590” (the pending application of the Brotherhood); and that United’s request was “not timely made, since the Board, on December 19, 1962, found that a representation dispute existed among the employees in this craft or class, and has authorized an election.” United requested reconsideration of this decision, but without success.

Meanwhile, on January 18, 1963, when United advised the Board that it was “willing to allow a ballot box election on Company property provided the ballot follows the form used by the National Labor Relations Board,” i. e., the ballot “would have a space for the employee to vote against representation as well as space for the employee to vote for representation” by the Brotherhood or the Machinists. (Emphasis in the original.) The Board replied that its form of ballot had been used since 1934 and that it saw no reason to depart from it. Thereafter United advised that it would furnish the list of employees by February 11, but on that date the list was refused and action was begun the next day against the Board in the District Court for the District of Columbia. This case was later dismissed, as we have noted.

It appears that while the election was being delayed the Association was being organized among United’s employees. By March 1963 it claimed 6,400 members, about 50% of the total number of United’s employees. It sought, like United, to be heard in a craft or class proceeding and to have the ballot amended. It stated, however, that it did not seek recognition as a bargaining representative, and it did not want its name on the ballot. It intended to dissolve after the election. The Board denied the applications.

After United’s case was dismissed, the Association filed a similar suit in the same court, seeking substantially the same relief. The Brotherhood was permitted to intervene, and it filed a separate appeal from that of the Board after the court had disposed of the case as we have already stated.

After we granted certiorari, the Board adopted an amended form of ballot on which there appears the following directly above the names of the unions seeking election as representative:

“INSTRUCTIONS FOR VOTING
“No employee is required to vote. If less than a majority of the employees cast valid ballots, no representative will be certified.”

In effect, this amended ballot stated on its face what has been the practice of the Board in these elections since its inception. The Board has announced its intention to use this form of ballot in future representation elections, including any that may be held in this particular matter.

2. The Purposes of the Act and the Board’s Function.

The major objective of the Railway Labor Act, 44 Stat. 577, as amended, 45 U. S. C. §§ 151-188 (1958 ed.), was “the avoidance of industrial strife, by conference between the authorized representatives of employer and employee.” Virginian R. Co. v. System Federation No. 40, 300 U. S. 515, 547 (1937). Section 2, Ninth set up the machinery for the selection of the representatives of employees. It authorized the National Mediation Board, upon request, to investigate disputes over representation; to “designate” those who were affected; to use a secret ballot or any other appropriate means of ascertaining the choice of employees; to establish rules governing elections and to certify the representatives so chosen to represent the employees in negotiations. Upon the issuance of this certificate the employer, under the Act, is required to “treat” with the representative certified to it by the Board. As we said in Virginian R. Co.: “The statute does not undertake to compel agreement between the employer and employees, but it does command those preliminary steps without which no agreement can be reached. It at least requires the employer to meet and confer with the authorized representative of its employees, to listen to their complaints, to make reasonable effort to compose differences — in short, to enter into a negotiation for the settlement of labor disputes such as is contemplated by § 2, First.” Id., at 548.

In Switchmen’s Union v. National Mediation Board, 320 U. S. 297 (1943), the petitioner sued for the cancellation of a Board representation certificate. The Court held that the Act precluded review of the Board’s certification of a collective bargaining representative under § 2, Ninth. The case involved a question of statutory construction, i. e., whether the Act permitted the division of crafts or classes of a single carrier into smaller units for collective bargaining purposes. The Court refused to consider the merits of the claim, holding that it was for the Board, not the courts, finally to resolve such questions. “The Act in § 2, Fourth,” the Court said, “writes into law the 'right’ of the 'majority of any craft or class of employees’ to 'determine who shall be the representative of the craft or class for the purposes of this Act.’ That 'right’ is protected by § 2, Ninth which gives the Mediation Board the power to resolve controversies concerning it and as an incident thereto to determine what is the appropriate craft or class in which the election should be held.” Id., at 300-301. The Court goes on to note that Congress decided on the method which might be employed to protect this “right”; and that where Congress “has not expressly authorized judicial review,” id., at 301, “this Court has often refused to furnish one even where questions of law might be involved,” id., at 303. The Court’s conclusion was that “the intent seems plain — the dispute was to reach its last terminal point when the administrative finding was made. There was to be no dragging out of the controversy into other tribunals of law.” Id., at 305. Thus, the Court held there could be no judicial review.

It is sometimes said that in Leedom v. Kyne, 358 U. S. 184 (1958), the Court created an “exception” to the doctrine of Switchmen’s Union. In Kyne, it was held that the law afforded a remedy in the courts when unlawful action by the National Labor Relations Board inflicted injury on one of the parties to a bargaining dispute. But this was no exception to Switchmen’s Union. Rather the Court was careful to note that “[t]his suit is not one to ‘review,’ in the sense of that term as used in the Act, a decision of the Board made within its jurisdiction. Rather it is one to strike down an order of the Board made in excess of its delegated powers and contrary to a specific prohibition in the Act.” Leedom v. Kyne, 358 U. S. 184, 188. (Emphasis supplied.) The limited nature of this holding was re-emphasized only last Term where we referred to the “narrow limits” and “painstakingly delineated procedural boundaries of Kyne.” Boire v. Greyhound Corp., 376 U. S. 473, 481 (1964). It is with these principles in mind that we turn to the questions in the instant cases.

3. The Craft or Class Determination.

The order of the District Court in Nos. 138 and 369 enjoins the Board from conducting an election “in which the form of the ballot does not permit a voting employee to cast a vote against collective bargaining representation . . . .” The Association concedes that the order does not enjoin the holding of the election until the Board reconsiders its craft or class determination; nor has it petitioned here for a review of that portion of the decision.' Thus, we need not reach the question of the Association’s right to demand or participate in proceedings leading to such a determination.

The same is not true of United, however, for it specifically sought and was denied such relief, and it comes here contending that this denial constituted error. United argues that since the Act compels it to treat with the representative chosen by the majority of its employees in the craft or class in which the election is held, it has a direct and substantial interest in the scope of that unit; and that since the Act provides for no administrative or judicial review, due process requires that it be accorded an opportunity to participate in the proceedings by which the Board determines which employees may participate.

It also contends that the Board, in designating the employees who could participate in the election, did not do so as a result of the statutorily required investigation— which, United contends, requires that the Board take evidence and make findings — but made an arbitrary determination, relying solely on the agreement of the unions.

United’s position is that Switchmen’s Union does not control a claim that the Board has ignored an express command of the Act. This particular question was reserved in the 1943 cases. In General Committee v. Missouri-Kansas-Texas R. Co., 320 U. S. 323 (1943), a companion case to Switchmen’s Union, the Court stated: “Whether judicial power may ever be exerted to require the Mediation Board to exercise the 'duty’ imposed upon it under § 2, Ninth and, if so, the type or types of situations in which it may be invoked present questions not involved here.” Id,., at 336, n. 12. We think that the Board’s action here is reviewable only to the extent that it bears on the question of whether it performed its statutory duty to “investigate” the dispute. Reviewing that action, however, we conclude that the contention is completely devoid of merit.

Section 2, Ninth makes it the duty of the Board to “investigate” a representation dispute and “to certify to both parties, in writing, within thirty days after the receipt of the invocation of its services, the name or names of the individuals or organizations that have been designated and authorized to represent the employees involved in the dispute, and certify the same to the carrier.” This command is broad and sweeping. We should note at the outset that the Board’s duty to investigate is a duty to make such investigation as the nature of the case requires. An investigation is “essentially informal, not adversary” ; it is “not required to take any particular form.” Inland Empire District Council v. Millis, 325 U. S. 697, 706 (1945). These principles are particularly apt here where Congress has simply told the Board to investigate and has left to it the task of selecting the methods and procedures which it should employ in each case.

In dealing with the sufficiency of the investigation it is necessary to examine the experience of the Board through the years in resolving questions of craft or class appropriateness. That experience, insofar as it concerns the unit involved here, dates back to 1946 in Case No. R-1706, supra, when it was called upon for the first time to apply the craft or class principle of representation to the airline industry. At that time it had before it a fledgling industry, a relatively new statutory command and a huge group of employees for whom there were no recognized crafts or classes within the meaning of the Act. At least five unions were involved, all urging different employee groupings, and all of the major airlines were invited to participate in an extended public hearing. United was among those participating and in fact supported the very craft or class unit which the Board eventually decided upon and to which it has adhered here. Because it was the first time the Board had recognized such a craft or class, it cautiously provided in denying reconsideration of its determination that it was subject to future re-examination where to do so would further the purposes of the Act.

Thereafter began a period in which the workability of the R-1706 determination was tested in practice, and it did not go completely unchallenged. In 1948 United voluntarily recognized the Machinists as the collective bargaining representative for its ramp and stores employees. It supplied the Board with evidence upon which this recognition was based and its reasons for departing from its usual policy. It is noteworthy that the Board replied that voluntary recognition would not preclude future determination by the Board of the proper craft or class to which those employees would belong. In 1951 the determination of R-1706 withstood challenge in Matter of Representation of Employees of Northwest Airlines, Inc., Case No. R-2357, 2 N. M. B. Determinations of Craft or Class 60 (1955). United submitted a statement in this proceeding, emphasizing its disagreement with the R-1706 decision and requesting that it be disregarded. The Board refused to do so, but it did reiterate what it had implied in 1947 — that it was “of the opinion that upon proper application ... it will be advisable to reexamine the determination in case R-J.706 et al., with the view of making such modifications as may be found to be justified at that time.” Id., at 67. We note that in both cases — R-1706 and R-2357 — the unions competing for representative status were in disagreement as to the appropriate unit in which elections should be held. Again in 1952, in Case No. R-2482, 2 N. M. B. Determinations of Craft or Class 72 (1955), United participated when the Air Line Dispatch Clerks Association sought to represent its general dispatch clerks, dispatch clerks A, B, and C and crew schedulers; the Brotherhood there disputed the grouping, contending that R-1706 established the scope of the election. The Board sustained this position, which was also that of United, and held that R-1706 should be adhered to. United had argued that the dispatch clerks and schedulers were not a separate craft or class but merely components of the R-1706 unit, and that representation could be had only through investigation and election in that group. The Board ultimately discussed the application in these terms:

“The precedents heretofore established by the Board, however, cannot be disregarded. Moreover, the record of stable industrial relations which has followed in the years since the Determination in R-1706 must be given due and careful consideration.
“. . . In an industry which is still expanding, the agency charged with the duty of certifying designated representatives for collective bargaining must of necessity hesitate before acquiescing In the desires of certain employees to establish small segregated groups, because by that very course it may retard, or even destroy job opportunities. Flexibility in the use of employee talent carries just as many advantages for the employees as it does for the carrier. The Board is fully aware that the action taken herein will have, as an end result, the withholding of an immediate opportunity to select a collective-bargaining agent by this group of employees, but nevertheless, it is convinced that the basic purposes of the Railway Labor Act will be better served by adherence to the policy of preserving established crafts or classes.” Id,., at 76.

Nor do the subsequent cases brought to our attention strip the R-1706 decision of its continuing validity. In both these matters — Cases No. C-2252 and C-2389, 3 N. M. B. Determinations of Craft or Class 16 (1961) — the Board determined that stock and storeroom employees were separate crafts or classes of employees at North Central and Trans-Texas Air Lines. Neither of these airlines had participated in the 1946 proceedings. Both were feeder lines, and in both cases the contending unions disagreed as to the appropriate unit in which the election should be held. In any event, the Board was simply pursuing the policy it had announced when it decided R-1706 — that it would re-examine craft or class determinations when it thought the purpose of the Act would be furthered thereby. This in itself belies the notion that the Board has blindly followed the R-1706 ruling.

It is in light of this background that we must decide whether the Board’s reaffirmation of the R-1706 determination in these cases was made after a sufficient investigation, within the meaning of the Act. We reject the contention that it adhered solely to the craft or class chosen by the unions. Time and again it has acknowledged that it has the task of determining the appropriateness of a craft or class, and nothing in this case suggests that it abdicated that responsibility here. Where units untested by actual collective bargaining have been proposed by the unions involved the Board has consistently held hearings to determine the propriety of holding elections in those crafts or classes. But where the unions have agreed and the unit they have agreed upon has been one well-established in industry bargaining circles, it has. usually held elections without full-scale hearings, not simply because the unions agree but because the unit upon which they agree is one that is well-recognized under prior determinations of the Board and has proven satisfactory in actual experience. This is what it did here.

The Board received the Brotherhood’s application; it requested, received and considered statements from the carrier and the Machinists. On the basis of these preliminary actions, it scheduled an election. But it continued to correspond with United, accepting and studying its detailed application for reconsideration of the Board’s decision to proceed to election in the R-1706 craft or class. Viewed alongside prior experience with the R-1706 grouping in the air transport industry this procedure clearly complied with the statutory command that the Board “investigate” the dispute. The only missing element of the required investigation is the election and that can now be held promptly.

United sought to have the District Court require the Board to hold a hearing on the craft or class issue in which it would participate as a “party in interest.” But the Act does not require a hearing when the Board itself designates those who may participate in the election. It provides that “the Board shall designate who may participate in the election ... , or may appoint a committee of three neutral persons who after hearing shall within ten days designate the employees who may participate in the election.” (Emphasis supplied.) Indeed, United seems aware of this, for it stated in its brief that if “the Railway Labor Act does not specifically require a hearing, it does require an ‘investigation,’ ” and that United must be heard in the course of that proceeding. Clearly, then, the Board cannot be required to hold a hearing.

Nor does the Act require that United be made a party to whatever procedure the Board uses to define the scope of the electorate. This status is accorded only to those organizations and individuals who seek to represent the employees, for it is the employees’ representative that is to be chosen, not the carriers’. Whether and to what extent carriers will be permitted to present their views on craft or class questions is a matter that the Act leaves solely in the discretion of the Board.

The gist of United’s claim, therefore, is that it should be accorded a greater role in the Board’s investigation. This argument must be rejected. Here United participated in the proceeding establishing the craft or class in question as a cognizable grouping of employees, and it has had opportunities since that time to present further evidence. It must be remembered that United is under no compulsion to reach an agreement with the certified representative. As Chief Justice Stone said in Virginian R. Co. v. System Federation No. 40, supra, “The quality of the action compelled, its reasonableness, and therefore the lawfulness of the compulsion, must be judged in the light of the conditions which have occasioned the exercise of governmental power.” Id., at 558-559. Likewise, as the Court observed in Hannah v. Larche, 363 U. S. 420, 442 (1960), the procedural requirements in a particular proceeding depend on “[t]he nature of the alleged right involved, the nature of the proceeding, and the possible burden on that proceeding ....” The Board, as we noted in Switchmen’s Union, performs the “function of a referee.” It does not select one organization or another; it simply investigates, defines the scope of the electorate, holds the election and certifies the winner. Thus, while the Board’s investigation and resolution of a dispute in one craft or class rather than another might impose some additional burden upon the carrier, we cannot say that the latter’s interest rises to a status which requires the full panoply of procedural protections. We find support for this conclusion when we consider the burden that acceptance of United’s contentions would visit upon the administration of the Act. To require full-dress hearings on craft or class in each representation dispute would fly in the face of Congress’ instruction that representatives should be certified within 30 days of invocation of the Board’s services. It places beyond reach the speed which the Act’s framers thought an objective of the first order.

In view of these considerations, we hold that the Board performed its statutory duty to conduct an investigation and designate the craft or class in which the election should be held and that it did so in a manner satisfying any possible constitutional requirements that might exist. Its determination, therefore, is not subject to judicial review. Switchmen’s Union v. National Mediation Board, supra. As was pointed out there, the “highly selective manner in which Congress has provided for judicial review of administrative orders or determinations under the Act,” id., at 305, indicates the confidence that it reposed in the Board. In turn the fair and equitable manner in which the Board has discharged its difficult function is attested by the admirable results- it has attained.

4. The Form of the Ballot.

As we have noted the District Court enjoined the Board from conducting an election with a ballot that did not permit an employee to cast a vote against collective representation. We believe this was error. Section 2, Ninth empowers the Board to establish the rules governing elections. Moreover, it provides that in resolving representation disputes the Board is authorized “to take a secret ballot of the employees involved, or to utilize any other appropriate method of ascertaining the names of their duly designated and authorized representatives in such manner as shall insure the choice of representatives by the employees without interference, influence, or coercion exercised by the carrier.” Thus, not only does the statute fail to spell out the form of any ballot that might be used but it does not even require selection by ballot. It leaves the details to the broad discretion of the Board with only the caveat that it “insure” freedom from carrier interference. That the details of ■ selecting representatives were to be left for the final determination of the Board is buttressed by legislative history clearly indicating as much. See Hearings on H. R. 7650, House Committee on Interstate and Foreign Commerce, 73d Cong., 2d Sess., 34^35.

In summary, then, the selection of a ballot is a necessary incident of the Board’s duty to resolve disputes. The Act expressly says as much, instructing the Board alone to establish the rules governing elections. Thus, it is clear that its decision on the matter is not subject to judicial review where there is no showing that it has acted in excess of its statutory authority.

United and the Association, however, apparently relying on Leedom v. Kyne, supra, contend that the Board has exceeded its statutory authority in selecting the proposed ballot. The argument is that § 2, Fourth, which provides that “[t]he majority of any craft or class of employees shall have the right to determine whp shall be the representative of the craft or class” requires a ballot with a “no union” box. They urge that in Virginian B. Co. v. System Federation No. 40, supra, at 560, certification on the basis of a majority of the votes cast, rather than a majority of the eligible voters, was upheld on the ground that nonvoters “are presumed to assent to the expressed will of the majority of those voting.” And they say that the Board’s ballot is inconsistent with this rationale. But the Board has not followed the presumption of Virginian R. Co. Indeed the caveat on the face of the proposed ballot expressly refutes such an assumption. The Board’s rule of election procedure is that no vote is a vote for no representation, and this is now made plain to the voting employees. It is, as we have said, an assumption more favorable to the employees that the Association represents. Thus, under the Board’s practice a majority of the craft or class, as required by § 2, Fourth, does have the right to determine who shall be the representative of the group or, indeed, whether they shall have any representation at all.

It is also claimed that since § 9 (a) of the National Labor Relations Act, 49 Stat. 453, as amended, 61 Stat. 143, 29 U. S. C. § 159 (a) (1958 ed.) and § 2, Ninth of the Railway Labor Act are both designed to encourage collective bargaining and the National Labor Relations Board uses a ballot with a “no union” box, the Mediation Board must use one also. Even assuming that the “no union” ballot would implement the purpose of the Act, this is a far cry from saying that it is the only form of ballot that would do so. Given broad discretion as it is the Mediation Board has followed a presumption contrary to that adhered to by the Labor Relations Board. The latter has tailored its ballot to conform to the presumption of Virginian R. Co. If in a Labor Board election, an employee does not vote, he can safely be presumed to have acquiesced in the will of the majority of the voters. In a Mediation Board election, if the employee refuses to vote he is treated as having voted for no representation.

We venture no opinion as to whether the Board’s proposed ballot will best effectuate the purposes of the Act. We do say that there is nothing to suggest that in framing it the Board has exceeded its statutory authority.

Unable to point to any specific requirement of a “no union” ballot in the Act, United and the Association are left to arguing in terms of policy and broad generalities as to what the Railway Labor Act should provide. The very nature of the arguments indicates that the Board’s choice of its proposed ballot is not subject to judicial review, for it was to avoid the haggling and delays of litigation that such questions were left to the Board. These are matters for Congress and the Board rather than the courts. Here the Board — a creature of Congress — has been, as we have said, careful to provide fair, yet effective procedures and we feel certain that it will continue to do so. If its decision on the ballot is not acceptable, the place to go is to Congress, not to us.

Accordingly, we reverse the judgments in Nos. 138 and 369 and affirm the judgment in No. 139.

It is so ordered.

Mr. Justice Black concurs in the result.

Mr. Justice Stewart,

dissenting.

My dissent stems from the Court’s approval of the form of ballot used by the National Mediation Board in representation elections. As I understand its opinion, the Court holds that the form of ballot devised by the Board is subject to judicial review, at least for the purpose of determining whether the Board “acted in excess of its statutory authority.” With that I agree. But the Court goes on to hold that the ballot devised by the Board does conform with the statute. With that I cannot agree.

I.

Nothing decided in Switchmen’s Union v. National Mediation Board, 320 U. S. 297, forecloses a determination by this Court of the validity of the ballot form used by the Board. On the .contrary, that case, which insulated from judicial review the Board’s ultimate craft or class determinations, makes it all the more imperative that the Board be required to operate by fair and lawful procedures. Compare Silver v. New York Stock Exchange, 373 U. S. 341, 361. To say that Switchmen’s Union, by interpreting the Railway Labor Act (44 Stat. 577, as amended) to deprive courts of jurisdiction to review class or craft determinations, also deprived courts of jurisdiction to review the fundamental procedures used by the Board in arriving at those determinations “would indeed be to ‘turn the blade inward.’ ” Graham v. Brotherhood of Firemen, 338 U. S. 232, 237.

The ballot lies at the heart of the Board’s certification mechanism. It is used day in and day out and will be used on thousands of occasions in the future. What happened in this very case illustrates the vital and salutary effect of judicial scrutiny of the Board’s procedures. The ballot form which the Court of Appeals held illegal in this litigation had been used by the Board for many years. Yet the Solicitor General, as a consequence of the grant of certiorari in this case, persuaded the Board to modify the ballot to reduce its ambiguities. If the Court were understood as holding today that there can be no review of the ballot’s structure, the Board would, of course, be free to return to the older historic form which the Solicitor General has virtually conceded is unfair and unlawful.

1 — 1

Even as revised in response to our grant of certiorari in this case, however, the form of ballot to be used by the Board continues to list spaces only for the organizations actually competing for representation, with a blank space left for writing in an unlisted organization. No space is provided for voting for “ho union.” Employees are still confronted with a ballot upon which they can mark a choice only among representatives, without an opportunity to mark a choice for no representative at all. This ballot form is directly attributable to the Board’s view of what the bargaining pattern should be in the airline industry. The Board has stated that “the act does not contemplate that its purposes shall be achieved, nor is it clear that they can be achieved, without employee representatives . ...” Asa result, the Board has designed its ballot to encourage employees to choose a labor organization to represent them collectively. I believe both the language of the Act and its legislative history belie this view and, for that reason, I would order the Board to reconsider the form of its ballot.

Section 2, Fourth provides that “Employees shall have the right to organize and bargain collectively through representatives of their own choosing. The majority of any craft or class of employees shall have the right to determine who shall be the representative of the craft or class . . . .” The Act performs the function, familiar to the rest of our labor legislation, of furnishing the opportunity for majority determination within each employee group of what the nature of bargaining shall be. But the Act is not compulsory. Employees are not required to organize, nor are they required to select labor unions or anyone else as their representatives. It has always been recognized that under the law the employees have the option of rejecting collective representation.

The House Report on the bill, stated:

“2. It [H. R. 9861] provides that the employees shall be free to join any labor union of their choice and likewise be free to refrain from joining any union if that be their desire and forbids interference by the carriers’ officers with the exercise of said rights.” (Emphasis supplied.) (H. R. Rep. No. 1944 to accompany H. R. 9861, Committee on Interstate and Foreign Commerce, 73d Cong., 2d Sess., 1934, p. 2.)

Much of the testimony on the bill was given by Commissioner Joseph B. Eastman, Federal Coordinator of Transportation and the principal draftsman of the legislation. His reply to a question by Congressman Huddleston reflects the contemporary understanding of the Act:

“Commissioner Eastman. No; it does not require collective bargaining on the part of the employees. If the employees do not wish to organize, prefer to deal individually with the management with regard to these matters, why, that course is left open to them, or it should be.” (Hearings on H. R. 7650, House Committee on Interstate and Foreign Commerce, 73d Cong., 2d Sess., 1934, p. 57.)

And in the Senate, Senator Wagner insisted that this was the burden of the bill:

“Senator Wagner. ... I didn’t understand these provisions compelled an employee to join any particular union. I thought the purpose of it was just the opposite, to see that the men have absolute liberty to join or not to join any union or to remain unorganized.
“Mr. Clement. That is the way we hope they will read when they are finally amended.” (Hearings on S. 3266, Senate Committee on Interstate Commerce, 73d Cong., 2d Sess., 1934, p. 76.)

See also Hearings, id., p. 12. That legislative history is directly counter to the conception of the Act reflected by the ballot form used by the Board, and spelled out in the particularized record of the present case.

The form of the ballot is markedly different from that evolved by the National Labor Relations Board under a statute which contained almost identical wording at the time the ballot was designed. Originally the Labor Board, like the Mediation Board, did not include a space for a “no union” vote. Since July 1937, however,, it has consistently placed such a slot on the ballot to insure that an employee’s vote for a particular representative does not spring from a feeling that the vying organizations present the only alternatives available. “The policy adopted by the Board is designed merely to make sure that the votes recorded for a particular representative express a free choice rather than a choice in default of the possibility of expressing disapproval of both or all proposed representatives.” In re Interlake Iron Corp., 4 N. L. R. B. 55, 61. “The Act . . . does not require an unwilling majority of employees to bargain through representatives. It merely guarantees and protects that right of a majority if it chooses to exercise it.” Ibid. (Emphasis supplied.)

Certainly the Board may use alternate devices for divining the desires of the employees. But each device must be tested within its own framework. Where the Board purports to gain its information through the traditional system of balloting the employees, all parties rely on that election to yield a meaningful result. Here the Board decided to employ the secret ballot and rely on its results exclusively. At the least then, the ballot must unambiguously convey to each employee the choices available to him under the law.

Because the National Mediation Board has hewn to the mistaken belief that its duty is to encourage collective representation in the airline industry, I would remand this case to the Board for further consideration in the light of the views here expressed. I would not attempt to dictate to the Board precisely what form the ballot should ultimately take. Within a broad range, that question surely lies within the Board’s discretion. But it is a question the Board should confront with a correct understanding of the law.

       Section 2, Ninth provides:
      “If any dispute shall arise among a carrier’s employees as to who are the representatives of such employees designated and authorized in accordance with the requirements of this chapter, it shall be the duty of the Mediation Board, upon request of either party to the dispute, to investigate such dispute and to certify to both parties, in writing, within thirty days after the receipt of the invocation of its services, the name or names of the individuals or organizations that have been designated and authorized to represent the employees involved in the dispute, and certify the same to the carrier. Upon receipt of such certification the carrier shall treat with the representative so certified as the representative of the craft or class for the purposes of this chapter. In such an investigation, the Mediation Board shall be authorized to take a secret ballot of the employees involved, or to utilize any other appropriate method of ascertaining the names of their duly designated and authorized representatives in such manner as shall insure the choice of representatives by the employees without interference, influence, or coercion exercised by the carrier. In the conduct of any election for the purposes herein indicated the Board shall designate who may participate in the election and establish the rules to govern the election, or may appoint a committee of three neutral persons who after hearing shall within ten days designate the employees who may participate in the election. . . .” 45 U. S. C. § 152, Ninth.

       Indeed in the keystone case dealing with the Railway Labor Act, Virginian R. Co. v. System Federation No. Jfi, supra, the validity of the Board’s certificate was attacked because it failed to recite the number of eligible voters in the craft or class in which the election was held. The Court found it unnecessary to decide whether the certificate would be conclusive absent such a finding, but it commented:
      “But we think it plain that if the Board omits to certify any of them [the facts concerning the number of eligible voters, the number participating and the choice of the majority], the omitted fact is open to inquiry by the court asked to enforce the command of the statute. . . . Such inquiry was made by the trial court, which found the number of eligible voters and thus established the correctness of the Board’s ultimate conclusion.” Id., at 562.

        Ruby v. American Airlines, Inc., 323 F. 2d 248, 255; WES Chapter, Flight Engineers’ Int’l Assn. v. National Mediation Board, 114 U. S. App. D. C. 229, 232, 314 F. 2d 234, 237.

       It should be noted, however, that in nearly all cases subsequent to Nos. C-2252 and C-2389, the Board has held elections among clerical, office, stores, fleet and passenger service employees without re-examining that grouping and without noticeable protest. Mr. Thompson, Executive Secretary of the Board, lists 19 such cases in his affidavit in the District Court supporting the Board’s motion to dismiss. This hardly supports United’s contention that the Board is clinging in this case to a determination it has found obsolete.

       The legislative history supports the view that the employees are to have the option of rejecting collective representation. The ballot that the Board proposes to use in future elections fully comports with this conception of the Act. Using the Board’s ballot an employee may refrain from joining a union and refuse to bargain collectively. All he need do is not vote and this is considered a vote against representation under the Board’s practice of requiring that a majority of the eligible voters in a craft or class actually vote for some representative before the election is valid. The practicalities of voting — the fact that many who favor some representation will not vote — are in favor of the employee who wants “no union.” Indeed, the method proposed by the Board might .well be more effective than providing a “no union” box, since, if one were added, a failure to vote would then be taken as a vote approving the choice of the majority of those voting. This is the practice of the National Labor Relations Board.

       The Solicitor General’s changes would leave the slots on the ballot intact (not supplying a “no union” box) but would append the following caption:
      “INSTRUCTIONS FOR VOTING
      “No employee is required to vote. If less than a majority of the employees cast valid ballots, no representative will be certified.”
      It is this revised form of ballot which the Court today approves, rather than the old form which was before the Court of Appeals.

       The original § 9 (c) of the Wagner Act, 49 Stat. 453, stated the Labor Board’s powers in the following language:
      “Whenever a question affecting commerce arises concerning the representation of employees, the Board may investigate such controversy and certify to the parties, in writing, the name or names of the representatives that have been designated or selected. In any such investigation, the Board shall provide for an appropriate hearing upon due notice, either in conjunction with a proceeding under section 10 or otherwise, and may take a secret ballot of employees, or utilize any other suitable method to ascertain such representatives.” Compare § 2, Ninth of the Railway Labor Act:
      "If any dispute shall arise among a carrier’s employees as to who are the representatives of such employees designated and authorized in accordance with the requirements of this chapter, it shall be the duty of the Mediation Board, upon request of either party to the dispute, to investigate such dispute and to certify to both parties, in writing, within thirty days after the receipt of the invocation of its services, the name or names of the individuals or organizations that have been designated and authorized to represent the employees involved in the dispute, and certify the same to the carrier. ... In such an investigation, the Mediation Board shall be authorized to take a secret ballot of the emploj'ees involved, or to utilize any other appropriate method of ascertaining the names of their duly designated and authorized representatives in such manner as shall insure the choice of representatives by the employees without interference, influence, or coercion exercised by the carrier. . . 45 U. S. C. §152, Ninth (1958 ed.).
      The similarity in the purposes of the Wagner Act and the Railway Labor Act was pointed out in the report of the House Committee on Labor which stated that “the bill is merely an amplification and further clarification of the principles enacted into law by the Railway Labor Act . . . .” H. R. Rep. No. 1147, 74th Cong., 1st Sess., p. 3. See 40 Op. Atty. Gen. 541 (Attorney General Clark).

       Before Switchmen’s Union there were several decisions which furnished the National Mediation Board with clarifying interpretations of the Act. The "Board found these “decisions are very helpful ... in that they serve to settle issues which, in the past, have frequently arisen to trouble the orderly and prompt adjustment of disputes over representation between different factions among employees.” Annual Report of the National Mediation Board, 1938, pp. 5-6.

       Administration of the Railway Labor Act by the National Mediation Board, 1934-1957, p. 15.

       In a letter to United Air Lines, rejecting its objections to the form of the ballot, the Executive Secretary of the Board stated: “Introduction of a ‘yes’ or ‘no’ ballot would contribute to, if it did not actually encourage, an attempt to circumvent the mandate of Congress that representatives be designated by carriers and their employees for the purposes described in Section 2, First and Second of the Railway Labor Act . . . .” Letter to Charles Mason from Executive Secretary of the National Mediation Board, January 24, 1963.

       Prior to this litigation, the only court to consider the ballot employed by the National Mediation Board found that failure to include a “no union” slot deprived the employees of a “free choice.” “It is manifest that this ballot did not present the issue to the eligible voters.” McNulty v. National Mediation Board, 18 F. Supp. 494, 501 (D. C. N. D. N. Y.).


source: Caselaw Access Project

author: Mr. Justice Black

license: Public Domain

text:
    COMMISSIONER OF INTERNAL REVENUE v. ESTATE OF NOEL et al.
    No. 503.
    Argued April 1, 1965.
    Decided April 29, 1965.

      John B. Jones, Jr., argued the cause for petitioner. With him on the brief were Solicitor General Cox and Assistant Attorney General Oherdorjer.

      Harry Norman Ball argued the cause for respondents. With him on the brief was Edward F. Merrey, Jr.

   Mr. Justice Black

delivered the opinion of the Court.

This is a federal estate tax case, raising questions under § 2042 (2) of the Internal Revenue Code of 1954, 26 U. S. C. § 2042 (2) (1958 ed.), which requires inclusion in the gross estate of a decedent of amounts received by beneficiaries other than the executor from “insurance under policies on the life of the decedent” if the decedent “possessed at his death any of the incidents of ownership, exercisable either alone or in conjunction with any other person. . . .” The questions presented in this case are whether certain flight insurance policies payable upon the accidental death of the insured were policies “on the life of the decedent” and whether at his death he had reserved any of the “incidents of ownership” in the policies.

These issues emerge from the following facts. Respondent Ruth M. Noel drove her husband from their home to New York International Airport where he was to take an airplane to Venezuela. Just before taking off, Mr. Noel signed applications for two round-trip flight insurance policies, aggregating 1125,000 and naming his wife as beneficiary. Mrs. Noel testified that she paid the premiums of $2.50 each on the policies and that her husband then instructed the sales clerk to “give them to my wife. They are hers now, I no longer have anything to do with them.” The clerk gave her the policies, which she kept. Less than three hours later Mr. Noel’s plane crashed into the Atlantic Ocean and he and all others aboard were killed. Thereafter the companies paid Mrs. Noel the $125,000 face value of the policies, which was not included in the estate tax return filed by his executors. The Commissioner of Internal Revenue determined that the proceeds of the policies should have been included and the Tax Court sustained that determination, holding that the flight accident policies were insurance “on the life of the decedent”; that Mr. Noel had possessed exercisable “incidents of ownership” in the policies at his death; arid that the $125,000 paid to Mrs. Noel as beneficiary was therefore includable in the gross estate. 39 T. C. 466. Although agreeing that decedent’s reserved right to assign the policies and to change the beneficiary amounted to “exercisable incidents of ownership within the meaning of the statute,” the Court of Appeals nevertheless reversed, holding that given “its ordinary, plain and generally accepted meaning,” the statutory phrase “policies on the life of the decedent” does not apply to insurance paid on account of accidental death under policies like those here. 332 F. 2d 950. The court’s reason for drawing the distinction was that under a life insurance contract an insurer “agrees to pay a specified sum upon the occurrence of an inevitable event,” whereas accident insurance covers a risk “which is evitable and not likely to occur.” (Emphasis supplied.) 332 F. 2d, at 952. Because of the importance of an authoritative answer to these questions in the administration of the estate tax laws, we granted certiorari to decide them. 379 U. S. 927.

I.

In 1929, 36 years ago, the Board of Tax Appeals, predecessor to the Tax Court, held in Ackerman v. Commis sioner, 15 B. T. A. 635, that “amounts received as accident insurance” because of the death of the insured were includable in the estate of the deceased. The Board of Tax Appeals recognized that “there is a distinction between life insurance and accident insurance, the former insuring against death in any event and the latter . . . against death under certain contingencies . . . .” The Court of Appeals in the case now before us considered this distinction between an “inevitable” and an “evitable” event to be of crucial significance under the statute. The Board of Tax Appeals in Ackerman did not, stating “we fail to see why one is not taken out upon the life of the policy-holder as much as the other. In each case the risk assumed by the insurer is the loss of the insured’s life, and the payment of the insurance money is contingent upon the loss of life.” This view of the Board of Tax Appeals is wholly consistent with the language of the statute itself which makes no distinction between “policies on the life of the decedent” which are payable in all events and those •payable only if death comes in a certain way or within a certain time. Even were the statutory language less clear, since the Board of Tax Appeals’ Ackerman case it has been the settled and consistent administrative practice to include insurance proceeds for accidental death under policies like these in the estates of decedents. The Treasury Regulations remain unchanged from the time of the Ackerman decision and from that day to this Congress has never attempted to limit the scope of that decision or the established administrative construction of § 2042 (2), although it has re-enacted that section and amended it in other respects a number of times. We have held in many cases that such a long-standing administrative interpretation, applying to a substantially reenacted statute, is deemed to have received congressional approval and has the effect of law. See, e. g., National Lead Co. v. United States, 252 U. S. 140, 146; United States v. Dakota-Montana Oil Co., 288 U. S. 459, 466. We hold here that these insurance policies, whether called “flight accident insurance” or “life insurance,” were in effect insurance taken out on the “life of the decedent” within the meaning of § 2042 (2).

II.

The executors’ second contention is that even if these were policies “on the life of the decedent,” Mrs. Noel owned them completely, and the decedent therefore possessed no exercisable incident of ownership in them at the time of his death so as to make the proceeds includable in his estate. While not clearly spelled out, the contention that the decedent reserved no incident of ownership in the policies rests on three alternative claims: (a) that Mrs. Noel purchased the policies and therefore owned them; (b) that even if her husband owned the policies, he gave them to her, thereby depriving himself of power to assign the policies or to change the beneficiary; and (c) even assuming he had contractual power to assign the policies or make a beneficiary change, this power was illusory as he could not possibly have exercised it in the interval between take-off and the fatal crash in the Atlantic.

(a) The contention that Mrs. Noel bought the policies and therefore owned them rests solely on her testimony that she furnished the money for their purchase, intending thereby to preserve her right to continue as beneficiary. Accepting her claim that she supplied the money to buy the policies for her own benefit (which the Tax Court did not decide), what she bought nonetheless were policy contracts containing agreements between her husband and the companies. The contracts themselves granted to Mr. Noel the right either to assign the policies or to change the beneficiary without her consent. Therefore the contracts she bought by their very terms rebut her claim that she became the complete, unconditional owner of the policies with an irrevocable right to remain the beneficiary.

(b) The contention that Mr. Noel gave or assigned the policies to her and therefore was without power thereafter to assign them or to change the beneficiary stands no better under these facts. The contract terms provided that these policies could not be assigned nor could the benéficiary be changed without a written endorsement on the policies. No such assignment or change of beneficiary was endorsed on these policies, and consequently the power to assign the policies or change the beneficiary remained in the decedent at the time of his death.

(c) Obviously, there was no practical opportunity for the decedent to assign the policies or change the beneficiary between the time he boarded the plane and the time he died. That time was too short and his wife had the policies in her possession at home. These circumstances disabled him for the moment from exercising those “incidents of ownership” over the policies which were undoubtedly his. Death intervened before this temporary disability was removed. But the same could be said about a man owning an ordinary life insurance policy who boarded the plane at the same time or for that matter about any man’s exercise of ownership over his property while aboard an airplane in the three hours before a fatal crash. It would stretch the imagination to think that Congress intended to measure estate tax liability by an individual’s fluctuating, day-by-day, hour-by-hour capacity to dispose of property which he owns. We hold that estate tax liability for policies “with respect to which the decedent possessed at his death any of the incidents of ownership” depends on a general, legal power to exercise ownership, without regard to the owner’s ability to exercise it at a particular moment. Nothing we have said is to be taken as meaning that a policyholder is without power to divest himself of all incidents of ownership over his insurance policies by a proper gift or assignment, so as to bar its inclusion in his gross estate under § 2042 (2). What we do hold is that no such transfer was made of the policies here involved. The judgment of the Court of Appeals, is reversed and the judgment of the Tax Court is affirmed.

It is so ordered.

Mr. Justice Douglas dissents.

         “§ 2042. Proceeds of life insurance.
      “The value of the gross estate shall include the value of all property—
      “(1) Receivable by the executor.
      “To the extent of the amount receivable by the executor as insurance under policies on the life of the decedent.
      “(2) Receivable by other beneficiaries.
      “To the extent of the amount receivable by all other beneficiaries as insurance under policies on the life of the decedent with respect to which the decedent possessed at his death any of the incidents of ownership, exercisable either alone or in conjunction with any other person. . .

       Section 302 (g) of the Revenue Act of 1924, which was applicable in Ackerman, provided that the estate should include all proceeds receivable by other beneficiaries “under policies taken out by the decedent upon his own life.” 43 Stat. 253, 304r-305.

       26 CFR § 20.2042-1 (a) (1). See also Treas. Reg. 105 (1939 Code), §81.25; Treas. Reg. 80 (1934 ed.), Art. 25; Treas. Reg. 70 (1926 ed. and 1929 ed.), Art. 25; Treas. Reg. 68 (1924 ed.), Art. 25; Treas. Reg. 63 (1922 ed.), Art. 27; and Treas. Reg. 37 (1921 ed.), Art. 32.

       Section 2042 was first enacted as § 402 (f) of the Revenue Act of 1918, c. 18, 40 Stat. 1057, 1097-1098. This section was re-enacted in § 402 (f) of the Revenue Act of 1921, c. 136, 42 Stat. 227, 278-279; in § 302 (g) of the Revenue Act of 1924, c. 234, 43 Stat. 253, 304r-305, and the Revenue Act of 1926, c. 27, 44 Stat. 9, 70-71; and in § 811 (g) of the Internal Revenue Code of 1939.


text:
    WARREN TRADING POST CO. v. ARIZONA TAX COMMISSION et al.
    No. 115.
    Argued March 9, 1965.
    Decided April 29, 1965.

      Edward, Jacobson argued the cause and filed briefs for appellant.

      Philip M. Haggerty, Assistant Attorney General of Arizona, argued the cause for appellees. tVith him on the brief were Robert W. Pickrell, Attorney General, and Walter O. Holm, Assistant Attorney General.
    Briefs of amici curiae, urging reversal, were filed by Solicitor General Cox and Roger P. Marquis for the United States; by.Arthur Lazarus, Jr., and Royal D. Marks for the Association on American Indian Affairs, Inc., et al.; by Norman M. Littell and Leland O. Graham for the Navajo Tribe of Indians, and by Edward B. Berger for the Papago Tribe.
   Mr. Justice Black

delivered the opinion of the Court.

Arizona has levied a tax of 2% on the “gross proceeds of sales, or gross income” of appellant Warren Trading Post Company, which does a retail trading business with Indians on the Arizona part of the Navajo Indian Reservation under a license granted by the United States Commissioner of Indian Affairs pursuant to 19 Stat. 200, 25 U. S. C. § 261 (1958 ed.). Appellant claimed that as applied to its income from trading with reservation Indians on the reservation the state tax was invalid as (1) in violation of Art. I, § 8, cl. 3, of the United States Constitution, which provides that “Congress shall have Power ... To regulate Commerce . . . with the Indian Tribes”; (2) inconsistent with the comprehensive congressional plan, enacted under authority of Art. I, § 8, to regulate Indian trade and traders and to have Indian tribes on reservations govern themselves. The State Supreme Court rejected these contentions and upheld the tax, one Justice dissenting. 95 Ariz. 110, 387 P. 2d 809. The case is properly here on appeal under 28 U. S. C. § 1257 (2) (1958 ed.). Since we hold that this state tax cannot be imposed consistently with federal statutes applicable to the Indians on the Navajo Reservation, we find it unnecessary to consider whether the tax is also barred by that part of the Commerce Clause giving Congress power to regulate commerce with the Indian tribes.

The Navajo Reservation was set apart as a “permanent home” for the Navajos in a treaty made with the “Navajo nation or tribe of Indians” on June 1, 1868. Long before that, in fact from the very first days of our Government, the Federal Government had been permitting the Indians largely to govern themselves, free from state interference, and had exercised through statutes and treaties a sweeping and dominant control over persons who wished to trade with Indians and Indian tribes. As Chief Justice John Marshall recognized in Worcester v. Georgia, 6 Pet. 515, 556-557:

“From the commencement of our government, congress has passed acts to regulate trade and intercourse with the Indians; which treat them as nations, respect their rights, and manifest a firm purpose to afford that protection which treaties stipulate.”

He went on to say that:

“The treaties and laws of the United States contemplate the Indian territory as completely separated from that of the states; and provide that all intercourse with them shall be carried on exclusively by the government of the union.” Id., at 557,

See also, e. g., United States v. Forty-three Gallons of Whiskey, 93 U. S. 188. In the very first volume of the federal statutes is found an Act, passed in 1790 by the first Congress, “to regulate trade and intercourse with the Indian tribes,” requiring that Indian traders obtain a license from a federal official, and specifying in detail the conditions on which such licenses would be granted.

Such comprehensive federal regulation of Indian traders has continued from that day to this. Existing statutes make specific restrictions on trade with the Indians, and one of them, passed in 1876 and tracing back to comprehensive enactments of 1802 and 1834, provides that the Commissioner of Indian Affairs shall have “the sole power and authority to appoint traders to the Indian tribes” and to specify “the kind and quantity of goods and the prices at which such goods shall be sold to the Indians.” Acting under authority of this statute and one added in 1901, the Commissioner has promulgated detailed regulations prescribing in the most minute fashion who may qualify to be a trader and how he shall be licensed; penalties for acting as a trader without a license; conditions under which government employees may trade with Indians; articles that cannot be sold to Indians; and conduct forbidden on a licensed trader’s premises. He has ordered that detailed business records be kept and that government officials be allowed to inspect these records to make sure that prices charged are fair and reasonable; that traders pay Indians in money; that bonds be executed by proposed licensees; and that the governing body of an Indian reservation may assess from a trader “such fees, etc., as it may deem appropriate.” It was under these comprehensive statutes and regulations that the Commissioner of Indian Affairs licensed appellant to trade with the Indians on the Navajo Reservation. These apparently all-inclusive regulations and the statutes authorizing them would seem in themselves sufficient to show that Congress has taken the business of Indian trading on reservations so fully in hand that no room remains for state laws imposing additional burdens upon traders. In fact, the Solicitor’s Office of the Department of the Interior in 1940 and again in 1943 interpreted these statutes to bar States from taxing federally licensed Indian traders on their sales to reservation Indians on a reservation. We think those rulings were correct.

Congress has, since the creation of the Navajo Reservation nearly a century ago, left the Indians on it largely free to run the reservation and its affairs without state control, a policy which has automatically relieved Arizona of all burdens for carrying on those same responsibilities. And in compliance with its treaty obligations the Federal Government has provided for roads, education and other services needed by the Indians. We think the assessment and collection of this tax would to a substantial extent frustrate the evident congressional purpose of ensuring that no burden shall be imposed upon Indian traders for trading with Indians on reservations except as authorized by Acts of Congress or by valid regulations promulgated under those Acts. This state tax on gross income would put financial burdens on appellant or the Indians with whom it . deals in addition to those Congress or the tribes have prescribed, and could thereby disturb and disarrange the statutory plan Congress set up in order to protect Indians against prices deemed unfair or unreasonable by the Indian Commissioner. And since federal legislation has left the State with no duties or responsibilities respecting the reservation Indians, we cannot believe that Congress intended to leave to the State the privilege of levying this tax. Insofar as they are applied to this federally licensed Indian trader with respect to sales made to reservation Indians on the reservation, these state laws imposing taxes cannot stand. Cf. Rice v. Santa Fe Elevator Corp., 331 U. S. 218. The judgment of the Supreme Court of Arizona is reversed and the cause remanded for further proceedings npt inconsistent with this opinion.

Reversed and remanded.

       Ariz. Rev. Stat. §§ 42-1309, 42-1312. The tax is applicable to “every person engaging or continuing within this state in the business of selling any tangible personal property whatever at retail,” with stated exceptions. Ariz. Rev. Stat. § 42-1312. Appellant’s challenge to these statutes is limited to the State’s attempt to apply them to gross income from sales made on the reservation to reservation Indians.

       15 Stat. 667.

       Arizona was admitted to the Union on its agreement that
      “the people inhabiting said proposed State do agree and declare that they forever disclaim all right and title to . . . all lands lying within said boundaries owned or held by any Indian or Indian tribes, the right or title to which shall have been acquired through or from the United States or any prior sovereignty, and that until the title of such Indian or Indian tribes shall have been extinguished the same shall be and remain subject to the disposition and under the absolute jurisdiction and control of the Congress of the United States . . . Act of June 20, 1910, 36 Stat. 557, 569. See also Act of Aug. 21, 1911, 37 Stat. 39.
      Certain state laws have been permitted to apply to activities on Indian reservations, where those laws are specifically authorized by acts of Congress, or where they clearly do not interfere with federal policies concerning the reservations. See Organized Village of Kake v. Egan, 369 U. S. 60, 72-75; Williams v. Lee, 358 U. S. 217, 219-221; Thomas v. Gay, 169 U. S. 264; Utah & N. R. Co. v. Fisher, 116 U. S. 28, 31-32. Compare, e. g., 18 U. S. C. § 1161 (1958 ed.) (permitting application of state liquor law standards within an Indian reservation under certain conditions); 45 Stat. 1185, as amended, 25 U. S. C. § 231 (1958 ed.) (permitting application of state health and education laws within a reservation under certain conditions); 18 U. S. C. § 1162 .(1958 ed.) and 28 U. S. C. § 1360 (1958 ed.) (respectively granting certain States criminal and civil jurisdiction over offenses and causes of action involving Indians within specified Indian reservations).

       In 1778, in its first treaty with an Indian tribe, the United States promised to provide for the Delaware Nation
      “a well-regulated trade, under the conduct of an intelligent, candid agent, with an adequate sallery, one more influenced by the love of his country, and a constant attention to the duties of his department by promoting the common interest, than the sinister purposes of converting and binding all the duties of his office to his private emolument Treaty of Sept. 17, 1778, Art. V, 7 Stat. 13, 14.
      Similar provisions were found in other early treaties, concluded before the first Congress legislated on the subject of Indian trade. See United States Department of the Interior, Federal Indian Law 96 (hereafter cited as Federal Indian Law). In 1871 Congress forbade future treaties with the Indian tribes but left the obligations of existing treaties unimpaired. 16 Stat. 544, 566, now 25 U. S. C. § 71 (1958 ed.).

       Act of July 22, 1790, 1 Stat. 137.

       See generally Federal Indian Law 94 — 138, 373-381.

        E. g., 4 Stat. 729, now 25 U. S. C. § 263 (1958 ed.) (empowering the President in the public interest to forbid introduction of any or all goods into the territory of a tribe, and to revoke and refuse all licenses to trade with that tribe); 4 Stat. 729, as amended, now 25 U. S. C. § 264 (1958 ed.) (establishing penalties for trading without a license and forbidding traders to hire white persons as clerks unless licensed to do so); 18 U. S. C. § 3113 (1958 ed.) (forbidding unlawful introduction of liquor into Indian country and providing for revocation of the license of any trader violating this prohibition).

       Act of March 30, 1802, 2 Stat. 139.

       Act of June 30, 1834, 4 Stat. 729.

       19 Stat. 200, 25 U. S. C. § 261 (1958 ed.), provides:
      “The Commissioner of Indian Affairs shall have the sole power and authority to appoint traders to the Indian tribes and to make such rules and regulations as he may deem just and proper specifying the kind and quantity of goods and the prices at which, such goods shall be sold to the Indians.”

       31 Stat. 1066, as amended, 25 U. S. C. § 262 (1958 ed.), provides:
      “Any person desiring to trade with the Indians on any Indian reservation shall, upon establishing the fact, to the satisfaction of the Commissioner of Indian Affairs, that he is a proper person to engage in such trade, be permitted to do so under such rules and regulations as the Commissioner of Indian Affairs may prescribe for the protection of said Indians.”

       25 CFR §§251.9, 252.6, 251.3, 252.3, 251.5, 251.8, 251.18, 251.19, 251.21, 252.15.

       25 CFR §§252.7, 251.22, 251.24, 251.10, 252.9, 252.27c. See generally 25 CFR §§ 251, 252.

       These statutes and regulations apply only to activities on reservations. See Taylor v. United States, 44 F. 2d 531 (C. A. 9th Cir.), cert. denied, 283 U. S. 820; 57 I. D. 124, 125.

       57 I. D. 124.

       58 I. D. 562.

       Since 1950 Congress has authorized expenditure of over $100,-000,000 as part of an extensive plan to rehabilitate the Navajo and Hopi tribes of Arizona. 64 Stat. 44, as amended, 25 U. S. C. §§631-640 (1958 ed.). Detailed accounts of the ways in which the Federal Government has aided and supported the Navajos and other tribes may be found in Secretary of the Interior, Annual Report, 1963, pp. 11-47; id., 1962, pp. 7-44; id., 1961, pp. 277-318. See also Federal Indian Law 268-306; Young, The Navajo Yearbook, Report No. viii, 1951-1961, A Decade of Progress (1961).

       The Buck Act, now 4 U. S. C. §§ 105-110 (1964 ed.), in which Congress permitted States to levy sales or use taxes within certain federal areas, has been interpreted by what appears to be the only court to consider the question before this ease, and by the Interior Department, as not applying to Indian reservations. Your Food Stores, Inc. v. Village of Espanola, 68 N. M. 327, 334, 361 P. 2d 950, 955-956; 58 I. D. 562. Cf. 4 U. S. C. § 109 (1964 ed.), excepting taxes on Indians from the scope of the Act. We think that interpretation was correct. See S. Rep. No. 1625, 76th Cong., 3d Sess., 2, 3. Moreover, we hold that Indian traders trading on a reservation with reservation Indians are immune from a state tax like Arizona’s, not simply because those activities take place on a reservation, but rather because Congress in the exercise of its power granted in Art. I, § 8, has undertaken to regulate reservation trading in such a comprehensive way that there is no room for the States to legislate on the subject. Cf. Surplus Trading Co. v. Cook, 281 U. S. 647, 651. Even assuming that the Arizona tax here is of a kind to which the Buck Act applies, nothing whatever in that Act suggests to us that Congress meant to give States new power to tax federally licensed Indian traders. See 58 I. D. 562.


author: Mr. Justice Goldberg Mr. Justice Black,

text:
    ONE 1958 PLYMOUTH SEDAN v. PENNSYLVANIA.
    No. 294.
    Argued March 31, 1965.
    Decided April 29, 1965.

      Stanford Shmukler argued the cause for petitioner. With him on the brief was Louis Lipschitz.

      Thomas J. Shannon, Assistant Attorney General of Pennsylvania, argued the cause for respondent. With him on the brief were Walter E. Alessandroni, Attorney General of Pennsylvania, and Edward Friedman and Frank P. Lawley, Deputy Attorneys General.
   Mr. Justice Goldberg

delivered the opinion of the Court.

At approximately 6:30 a. m. on December 16, 1960, two law enforcement officers of the Pennsylvania Liquor Control Board stationed near Camden, New Jersey, at the approach to the Benjamin Franklin Bridge, observed a 1958 Plymouth sedan bearing Pennsylvania license plates proceeding toward the bridge in the direction of Philadelphia, Pennsylvania. The officers, noting that “[t]he car was low in the rear, quite low,” followed it across the bridge into Philadelphia. They stopped the automobile a short distance within the city, identified themselves and questioned the owner, George McGonigle. The officers then searched the car and, in the rear and the trunk, found 31 cases of liquor not bearing Pennsylvania tax seals. The car and liquor were seized and McGonigle was arrested and charged with violation of Pennsylvania law. The officers did not have either a search or arrest warrant.

Pursuant to a Pennsylvania statute the Commonwealth filed a petition for forfeiture of the automobile. At the hearing McGonigle, by timely objection, sought dismissal of the forfeiture petition on the ground that the forfeiture of the automobile depended upon the admission of evidence illegally obtained in violation of the Fourth Amendment to the Constitution as applied to the States by the Fourteenth Amendment. The trial court sustained this position and dismissed the forfeiture petition. In doing so, the trial judge made a specific finding that “[t]he seizure was founded upon evidence illegally obtained, since under the particular circumstances the officers acted without probable cause.” The Superior Court of Pennsylvania, an intermediate appellate court, by a 4-to-3 decision reversed the order dismissing the petition and directed that the automobile be forfeited. 199 Pa. Super. 428, 186 A. 2d 52. The Supreme Court of Pennsylvania affirmed the order of the Superior Court, one judge dissenting. 414 Pa. 540, 201 A. 2d 427.

The basis of the Pennsylvania Supreme Court’s decision was that the exclusionary rule, which this Court in Mapp v. Ohio, 367 U. S. 643, 657, held “is an essential part of both the Fourth and Fourteenth Amendments,” applies only to criminal prosecutions and is not applicable in a forfeiture proceeding which the Pennsylvania court deemed civil in nature. In light of this disposition of the case, the State Supreme Court did not review the trial court’s finding of lack of probable cause, stating:

“The thrust of the arguments, both of the appellant and the Commonwealth, is directed to the validity and propriety of the search and the subsequent seizure by the officers of this Plymouth automobile. In our view, such arguments are beyond the point. By reason of the nature of the present proceeding, i. e., a forfeiture procedure, we consider it unnecessary to determine the propriety and validity of the search and the seizure of this automobile.” 414 Pa., at 542; 201 A. 2d, at 429.

We granted certiorari, 379 U. S. 927, to consider the important question of whether the constitutional exclusionary rule enunciated in Weeks v. United States, 232 U. S. 383, and Mapp applies to forfeiture proceedings of the character involved here — a question on which there has been conflict in both state and federal decisions. For the reasons set forth below, we hold that the constitutional exclusionary rule does apply to such forfeiture proceedings and consequently reverse the judgment of the Pennsylvania Supreme Court.

As this Court has acknowledged, “[t]he leading case on the subject of search and seizure is Boyd v. United States, 116 U. S. 616.” Carroll v. United States, 267 U. S. 132, 147. See Mapp v. Ohio, supra, at 646-647. Boyd v. United States, 116 U. S. 616, itself was not a criminal case but was a proceeding by the United States to forfeit 35 cases of plate glass which had allegedly been imported without payment of the customs duty. The District Judge in the case entered an order compelling the owners of the plate glass to produce certain records which would aid the United States in proving its case for forfeiture. The question before the Court in Boyd w&s whether the compulsory production of a man’s private papers for their evidentiary use against him in a proceeding to forfeit his property for alleged fraud against the revenue laws constituted an unreasonable search and seizure within the meaning of the Fourth Amendment of the Constitution. In holding that the Fourth Amendment applied and barred such attempted seizure, Mr. Justice Bradley, for the Court stated:

“We are also clearly of opinion that proceedings instituted for the purpose of declaring the forfeiture of a man’s property by reason of offences committed by him, though they may be civil in form, are in their nature criminal. In this very case, the ground of forfeiture as declared in the 12th section of the act of 1874, on which the information is based, consists of certain acts of fraud committed against the public revenue in relation to imported merchandise, which are made criminal by the statute; and it is declared, that the offender shall be fined not exceeding $5000 nor less than $50, or be imprisoned not exceeding two years, or both; and in addition to such fine such merchandise shall be forfeited. These are the penalties affixed to the criminal acts; the forfeiture sought by this suit being one of them. If an indictment had been presented against the claimants, upon conviction the forfeiture of the goods could have been included in the judgment. If the government prosecutor elects to waive an indictment, and to file a civil information against the claimants — that is, civil in form — can he by this device take from the proceeding its criminal aspect and deprive the claimants of their immunities as citizens, and extort from them a production of their private papers, or, as an alternative, a confession of guilt? This cannot be. The information, though technically a civil proceeding, is in substance and effect a criminal one. . . . As, therefore, suits for penalties and forfeitures incurred by the commission of offences against the law, are of this quasi-criminal nature, we think that they are within the reason of criminal proceedings for all the purposes of the Fourth Amendment of the Constitution . . . .” Boyd v. United States, supra, at 633-634.

This authoritative statement and the holding by the Court in Boyd that the Government could not seize evidence in violation of the Fourth Amendment for use in a forfeiture proceeding would seem to be dispositive of this case. The Commonwealth, however, argues that Boyd is factually distinguishable as it involved a subpoena sought by the Government for the production of evidence whereas the issue here is the admissibility of illegally seized evidence already in the Government’s possession. Although there is this factual difference between Boyd and the case at bar, nevertheless the basic holding of Boyd applies with equal, if not greater, force to the case before us. In both the Boyd situation and here the essential question is whether evidence — in Boyd the books and records, here the results of the search of the car — the obtaining of which violates the Fourth Amendment may be relied upon to sustain a forfeiture. Boyd holds that it may not.

The Commonwealth further argues that Boyd’s unequivocal statement that the Fourth Amendment applies to forfeiture proceedings as well as criminal prosecutions has been undermined by the statements of this Court in United States v. Jeffers, 342 U. S. 48, 54, and Trupiano v. United States, 334 U. S. 699, 710. Jeffers and Trupiano, unlike Boyd, were not forfeiture cases. They were federal criminal prosecutions. In both cases the Court held that evidence seized in violation of the Fourth Amendment was not admissible notwithstanding the fact that the evidence involved was contraband. By way of dictum, however, since the point was not before it, the Court stated in these cases that its ruling that the contraband was excludable as illegally seized did not mean that the Government was required to return the illegally imported narcotics to Jeffers or the unregistered still, alcohol and mash to Trupiano.

The nature of the contraband involved in these cases clearly explains these statements of the Court. Both Trupiano and Jeffers concerned objects the possession of which, without more, constitutes a crime. The repossession of such per se contraband by Jeffers and Trupiano would have subjected them to criminal penalties. The return of the contraband would clearly have frustrated the express public policy against the possession of such objects. See United States v. Jeffers, supra, at 53-64.

It is apparent that the nature of the property here, though termed contraband by Pennsylvania, is quite different'. There is nothing even remotely criminal in possessing an automobile. It is only the alleged use to which this particular automobile was put that subjects Mr. McGonigle to its possible loss. And it is conceded here that the Commonwealth could not establish an illegal use without using the evidence resulting from the search which is challenged as having been in violation of the Constitution. Furthermore, the return of the automobile to the owner would not subject him to any possible criminal penalties for possession or frustrate any public policy concerning automobiles, as automobiles. This distinction between what has been described as contraband per se and only derivative contraband has indeed been recognized by Pennsylvania itself in its requirement of mandatory forfeiture of illegal liquor, and stills, and only discretionary forfeiture of such things as automobiles illegally used. See Purdon’s Pa. Stat. Ann., Tit. 47, § 6-602 (e) (1964 Cum. Supp.). We, therefore, do not have a case before us in any way analogous to the contraband involved in Jeffers and Trupiano and these cases can in no way be deemed to impair the continued validity of Boyd which, like this case, involved property not intrinsically illegal in character.

Finally as Mr. Justice Bradley aptly pointed out in Boyd, a forfeiture proceeding is quasi-criminal in character. Its object,, like a criminal proceeding, is to penalize for the commission of an offense against the law. In this case MeGonigle, the driver and owner of the automobile, was arrested and charged with a criminal offense against the Pennsylvania liquor laws. The record does not disclose which particular offense or offenses he was charged with committing. If convicted of any one of the possible offenses involved, however, he would be subject, if a first offender, to a minimum penalty of a $100 fine and a maximum penalty of a $500 fine. In this forfeiture proceeding he was subject to the loss of his automobile, which at the time involved had an estimated value of approximately $1,000, a higher amount than the maximum fine in the criminal proceeding. It would be anomalous indeed, under these circumstances, to hold that in the criminal proceeding the illegally seized evidence is excludable, while in the forfeiture proceeding, requiring the determination that the criminal law has been violated, the same evidence would be admissible. That the forfeiture is clearly a penalty for the criminal offense and can result in even greater punishment than the criminal prosecution has in fact been recognized by the Pennsylvania courts.

In Commonwealth v. One 1959 Chevrolet Impala Coupe, involving a forfeiture in 1962, the Pennsylvania Superior Court in affirming the exercise of discretion to waive a forfeiture following a criminal prosecution, stated:

“It seemed to the court below that to make this man pay the sum of $500.00 in fines, together with the costs of the proceeding and the storage cost for the automobile, was sufficient punishment under all the circumstances. To forfeit a 1959 Chevrolet Impala coupe in addition to the above seemed to the court below to be entirely out of proportion to the crime involved. We cannot say that the court below abused its discretion in so acting.” 201 Pa. Super. 145, 150, 191 A. 2d 717, 719.

In sum, we conclude that the nature of a forfeiture proceeding, so well described by Mr. Justice Bradley in Boyd, and the reasons which led the Court to hold that the exclusionary rule of Weeks v. United States, supra, is obligatory upon the States under the Fourteenth Amendment, so well articulated by Mr. Justice Clark in Mapp, support the conclusion that the exclusionary rule is applicable to forfeiture proceedings such as the one'involved here. This being the case, the judgment of the Pennsylvania Supreme Court must be reversed. Our holding frees the Pennsylvania court on remand to review the trial court’s finding that the officials did not in this case have probable cause for the search involved, a question which it previously did not consider necessary to decide.

The judgment of the Supreme Court of Pennsylvania is reversed and the cause is remanded for proceedings not inconsistent with this opinion.

It is so ordered.

Mr. Justice Black,

concurring.

The language of the Fourth Amendment forbids “unreasonable searches and seizures” but it does not expressly or by implication provide that evidence secured in such a way cannot be used in a prosecution against an accused. Congress could, of course, pass a law to preclude the use of evidence so secured in the federal courts, but I do not believe this Court or any other has constitutional power to pass such a law itself. See Wolf v. Colorado, 338 U. S. 25, 39 (concurring opinion). For these reasons I cannot agree that because we ourselves might believe the practice of obtaining evidence in that manner “shocks the conscience” or is “shabby” or “arbitrary,” we are commanded or even authorized by the Constitution to prevent its use as evidence. That seems to me to be amending the Constitution, which is the business of the people, not interpreting it, which is the business of the courts. But the Fifth Amendment does specifically provide that “No person . . . shall be compelled in any criminal case to be a witness against himself,” and this Court held in Boyd v. United States, 116 U. S. 616, 634-635, that “a compulsory production of the private books and papers of the owner of goods sought to be forfeited in ... a suit is compelling him to be a witness against himself, within the meaning of the Fifth Amendment to the Constitution, and is the equivalent of a search and seizure — and an unreasonable search and seizure — within the meaning of the Fourth Amendment.” Boyd therefore stands for the constitutional principle that evidence secured by unreasonable search and seizure is compelled evidence, and is therefore barred from use in criminal cases by the Fifth Amendment’s provision that “No person . . . shall be compelled in any criminal case to be a witness against himself . . . .” See Rochin v. California, 342 U. S. 165, 174 (concurring opinion). The Court in Boyd thus based its exclusion of unlawfully seized evidence squarely on the specific prohibitions of the Fourth and Fifth Amendments, and not merely on the personal predilections of judges against such use.

This Court in Mapp v. Ohio, 367 U. S. 643, 646, recognized as the Court had in Boyd that “the Fourth and Fifth Amendments run almost into each other.” 116 U. S., at 630. At the very outset of its opinion in Mapp this Court relied on and quoted at length from the opinion in the Boyd case, which had relied on the Fourth and Fifth Amendments together to forbid the use in court of evidence obtained through an unreasonable search or seizure. 367 U. S., at 646-647. Use of such evidence, the Court said in Mapp, would be “tantamount to coerced testimony.” 367 U. S., at 656. And we said last Term in Malloy v. Hogan, 378 U. S. 1, 8:

“Mapp held that the Fifth Amendment privilege against self-incrimination implemented the Fourth Amendment in such cases, and that the two guarantees of personal security conjoined in the Fourteenth Amendment to make the exclusionary rule obligatory on the States. We relied upon the great case of Boyd v. United States, 116 U. S. 616 . . . .”

It was because of the Court’s reliance on the Boyd doctrine — which held that the Fourth and Fifth Amendments together barred use of unreasonably seized evidence— that I joined the Court’s opinion in Mapp. See 367 U. S. 643, 661 (concurring opinion). And for that same reason I agree with the Court today that the Fourth Amendment’s protection against unlawful search and seizure and the Fifth Amendment’s protection against compelled testimony apply in forfeiture proceedings like the one here. This was the holding in Boyd, which itself involved a forfeiture proceeding, and I would follow it in forfeiture proceedings as well as in criminal cases. In doing so, I recognize that this interpretation was reached in Boyd on the principle that “constitutional provisions for the security of person and property should be liberally construed.” 116 U. S., at 635. But that interpretive principle, I think, is a desirable one if our Constitution is to be given its proper place in our Government.

I also agree with the Court that our remand expresses no view as to whether the trial court was correct in its ruling on the issue of probable cause, and that the Supreme Court of Pennsylvania is free on remand to review the trial court’s finding, and that of course, as declared in Mapp, the standard of probable cause is the same in the state courts as in the federal courts.

       See note 9, infra, and accompanying text.

       Purdon’s Pa. Stat. Ann., Tit. 47, §6-601 (1964 Cum. Supp.), which provides in pertinent part:
      “No property rights shall exist in any liquor, alcohol or malt or brewed beverage illegally manufactured or possessed, or in any still, equipment, material, utensil, vehicle, boat, vessel, animals or aircraft used in the illegal manufacture or illegal transportation of liquor, alcohol or malt or brewed beverages, and the same shall be deemed contraband and proceedings for its forfeiture to the Commonwealth may, at the discretion of the board, be instituted in the manner hereinafter provided.”

       A separate petition was filed for the forfeiture of the liquor which was upheld by the trial court. No appeal was taken from this order.

       The trial court’s decision is unreported.

       See Commonwealth v. One 1958 Plymouth Sedan, 414 Pa. 540, 201 A. 2d 427; Berkowitz v. United States, 340 F. 2d 168 (C. A. 1st Cir.); United States v. $5,608.80 in United States Coin and Currency, 326 F. 2d 359 (C. A. 7th Cir.); United States v. $1,058.00 in United States Currency, 323 F. 2d 211 (C. A. 3d Cir.); United States v. Carey, 272 F. 2d 492 (C. A. 5th Cir.); United States v. One 1956 Ford Tudor Sedan, 253 F. 2d 725 (C. A. 4th Cir.); United States v. Physic, 175 F. 2d 338 (C. A. 2d Cir.); United States v. Butler, 156 F. 2d 897 (C. A. 10th Cir.); United States v. One 1968 Cadillac Hardtop, 220 F. Supp. 841 (D. C. E. D. Wis.). See also Cleary v. Bolger, 371 U. S. 392, 401, 403 (concurring opinion).

       See, as to Trupiano, Internal Revenue Code of 1939, §§ 2803 (a), 2810 (a), 53 Stat. 303, 308; as to Jeffers, Internal Revenue Code of 1939, §2553 (a), 53 Stat. 271; Narcotic Drugs Import and Export Act, 42 Stat. 596, 21 U. S. C. § 174 (1958 ed.).

       Nor has the continued validity of Boyd been in any way impaired by the decisions of this Court in United States v. One Ford Coupe Automobile, 272 U. S. 321, or Dodge v. United States, 272 U. S. 530. The question involved in both of these eases was not the introduction of evidence seized in violation of the Constitution but that of whether evidence seized by one without statutory authority could be used when its seizure was later ratified by an official with statutory authority. Indeed in Dodge v. United States, supra, at 532, Mr. Justice Holmes, for the Court, expressly recognized that the case did not involve exclusion of evidence obtained by an unlawful search and seizure and stated:
      “The exclusion of evidence obtained by an unlawful search and seizure stands on a different ground. If the search and seizure are unlawful as invading personal rights secured by the Constitution those rights would be infringed yet further if the evidence were allowed to be used.”

       Under Pennsylvania law on the alleged facts of this case, Mc-Gonigle presumably could have been charged with violating one or more of the following subsections of Purdon’s Pa. Stat. Ann., Tit. 47, § 4r491: (2) possession or transport of liquor that has not been purchased from a Pennsylvania Liquor Store; (4) possession of untaxed liquor; (11) illegal importation of liquor into the Commonwealth.

       Purdon’s Pa. Stat. Ann., Tit. 47, §4-494 (a) (1964 Cum. Supp.) provides:
      “Any person who shall violate any of the provisions of this article, except as otherwise specifically provided, shall be guilty of a misdemeanor and, upon conviction thereof, shall be sentenced to pay a fine of not less than one hundred dollars ($100), nor more than five hundred dollars ($500), and on failure to pay such fine, to imprisonment for not less than' one month, nor more than three months, and for any subsequent offense, shall be sentenced to pay a fine not less than three hundred dollars ($300), nor more than five hundred dollars ($500), and to undergo imprisonment for a period not less than three months, nor more than one year.”

       See National Market Reports, Inc., Red Book, Jan. 1-Feb. 14, 1961, Region A, 114.

       This Court in Boyd v. United States, supra, at 638, rejected any argument that the technical character of a forfeiture as an in rem proceeding against the goods had any effect on the right of the owner of the goods to assert as a defense violations of his constitutional rights. The Court stated:
      “[Although the owner of goods, sought to be forfeited by a proceeding in rem, is not the nominal party, he is, nevertheless, the substantial party to the suit; he certainly is so, after making claim and defence; and, in a case like the present, he is entitled to all the privileges which appertain to a person who is prosecuted for a forfeiture of his property by reason of committing a criminal offence.”

       The applicable standard of what constitutes probable cause, as stated by Mr. Justice Clark for the Court in Ker v. California, 374 U. S. 23, 33, “is the same under the Fourth and Fourteenth Amendments.” Cf. Beck v. Ohio, 379 U. S. 89; Aguilar v. Texas, 378 U. S. 108; Henry v. United States, 361 U. S. 98; Carroll v. United States, 267 U. S. 132, 153-154.