author: Mr. Chief Justice Warren Mr. Justice Stewart,

text:
    FLEISCHMANN DISTILLING CORP. et al. v. MAIER BREWING CO. et al.
    No. 214.
    Argued February 14, 1967.
    Decided May 8, 1967.

      Moses Lasky argued the cause and filed briefs for petitioners.

      J. Albert Hutchinson argued the cause and filed a brief for respondents.
   Mr. Chief Justice Warren

delivered the opinion of the Court.

This is a trademark case arising under the Lanham Act (60 Stat. 427, 15 U. S. C. §§ 1051-1127) in which our sole concern is with the relief that may be granted when deliberate infringement of a valid trademark has been established. The question is whether federal courts have power in that context to award reasonable attorney’s fees as a separate element of recovery in light of § 35 of the Act which enumerates the available compefisatory remedies.

The scope of petitioners’ trademark and the fact of respondents’ infringement were determined by the Court of- Appeals for the Ninth Circuit at an earlier stage of this litigation. 314 F. 2d 149, cert. denied, 374 U. S. 830 (1963). The case was then remanded to the District Court for the Southern District of California which, after noting that the Court. of Appeals had characterized respondents’ infringing activities as deliberate, entered its own finding to that effect. In accord with prior rulings of certain courts of appeals and district courts that attorney’s fees could be recovered if deliberate or willful infringement were established, the District Court awarded petitioners $60,000 after determining that such sum constituted reasonable attorney’s fees for prosecution of this litigation. Respondents sought an immediate interlocutory appeal although petitioners’ rights to an accounting and other relief remained for determination. The Court of Appeals first dismissed the appeal as premature, but after the District Court issued a certificate under 28 U. S. C. § 1292 (b) authorization was granted. Sifting en banc the Court of Appeals reversed the award of attorney’s fees, holding that under the Lanham Act federal courts are without power to make such awards. 359 F. 2d 156 (1966). We granted cer-tiorari to resolve the conflict between that holding and the prior decisions of federal courts upon which the District Court had relied. 385 U. S. 809 (1966). For the reasons elaborated below, we affirm.

As early as 1278, the courts of England were authorized to award counsel fees to successful plaintiffs in litigation. Similarly, since 1607 English courts have been empowered to award counsel fees to defendants, in all actions where such awards might be made to plaintiffs. Rules governing administration of these and related provisions have developed over the years. It is now customary in England; after litigation- of substantive claims has terminated, to conduct separate hearings before special “taxing Masters” in order to determine the appropriateness and the size of an award of counsel fees. To prevent the ancillary proceedings from becoming unduly protracted .and burdensome, fees which may be included in an award are usually prescribed, even including the amounts that may be recovered for letters drafted on behalf of a client.

Although some American commentators have urged adoption of the English practice in this country, our courts have generally resisted any .movement in that direction. The rule here has long been that attorney’s fees are not ordinarily recoverable in the absence of a statute or enforceable contract providing therefor. This Court first announced that rule in Arcambel v. Wiseman, 3 Dall. 306 (1796), and adhered to it in later decisions. See, e. g., Hauenstein v. Lynham, 100 U. S. 483 (1880); Stewart v. Sonneborn, 98 U. S. 187 (1879); Oelrichs v. Spain, 15 Wall. 211 (1872); Day v. Woodworth, 13 How. 363 (1852). In support of the American rule, it has been argued that since litigation is at best uncertain one should not be penalized for merely defending or prosecuting a lawsuit, and that the poor might be unjustly discouraged from instituting actions to vindicate their rights if the penalty for losing included the fees of their opponents’ counsel. Cf. Farmer v. Arabian American Oil Co., 379 U. S. 227, at 235 (1964); id., at 236-239 (concurring opinion of Mr. Justice Goldberg). Also, the time, expense, and difficulties of proof inherent in litigating the question of what constitutes reasonable attorney’s fees would pose substantial burdens for judicial administration. Oelrichs v. Spain, supra, at 231.

Limited exceptions to the American rule have, of course, developed. They have been sanctioned by this Court when overriding considerations of justice seemed to compel such a result. In appropriate circumstances, we have held, an admiralty plaintiff may be awarded counsel fees as an item of compensatory damages (not as a separate cost to be taxed). Vaughan v. Atkinson, 369 U. S. 527 (1962). And in a civil contempt action occasioned by willful disobedience of a court order an award of attorney’s fees may be authorized as part of the fine to- be levied on the defendant. Toledo Scale Co. v. Computing Scale Co., 261 U. S. 399, 426-428 (1923). the case upon which petitioners here place their principal reliance— Sprague v. Ticonic National Bank, 307 U. S. 161 (1939)— involved yet another exception. That exception had previously been applied in cases where a plaintiff traced or created a common fund for the benefit of others as well as himself. Central Railroad & Banking Co. v. Pettus, 113 U. S. 116 (1885); Trustees v. Greenough, 105 U. S. 527 (1882). In that situation to have allowed the others to obtain full benefit from the plaintiff’s efforts without requiring contribution or charging the common fund for attorney’s fees would have been to enrich, the others unjustly at the expense of the plaintiff. Sprague itself involved a variation of the common-fund situation where, although the plaintiff had not in a technical sense sued for the benefit, of others or to create a common fund, the stare decisis effect of the judgment obtained by the plaintiff established as a matter of law the right of a discernible class of persons to collect upon similar claims. The Court held that the general equity power “to do equity in a particular situation” supported an award of attorney’s fees under such circumstances for the same reasons that underlay the common-fund decisions.

The recognized exceptions to the general rule were not, however, developed in the context of statutory causes of action for which the legislature had prescribed intricate remedies. Trademark actions under the Lanham Act do occur in such a setting. For, in the Lanham Act, Congress meticulously detailed the remedies available to a plaintiff who proves that his valid trademark has been infringed. It provided not only for injunctive relief, but also for compensatory recovery measured by the profits that accrued to the defendant by virtue of his infringement, the costs of the action, and damages which may be trebled in appropriate circumstances. Petitioners have advanced' the proposition that the authority to award- “costs of the action” taken together with the introductory phrase “subject to the principles of equity” should be deemed implicit authority for an award of attorney’s fees in light of the reference in Sprague to the general equity power. But none of the considerations which supported the exception secognized in Sprague aré present here. Moreover, since, with the exception of the docket fee provided by 28 U. S. C. § 1923 (a), the statutory definition of the term “costs” does not include attorney’s fees, acceptance of petitioners’ argument would require us to ascribe to Congress a purpose to vary the meaning of that term without either statutory language or legislative history to support the unusual construction. When a cause of action has been created by a statute which expressly provides the remedies for vindication of the cause, other remedies should not readily be implied. Philp v. Nock, 17 Wall. 460 (1873); Teese v. Huntingdon, 23 How. 2 (1860); cf. Day v. Woodworth, 13 How. 363 (1852). Congress has overturned the specific consequence of Philp and Teese by expressly allowing recovery of attorney’s fees in p&tent cases and has selectively provided a similar remedy in connection with various other statutory causes of action. But several attempts to introduce such a provision into the Lanham Act have failed of enactment. We therefore must conclude that Congress intended § 35 of the Lanham Act to mark the boundaries of the power to award monetary relief in cases arising under the Act. A judicially created compensatory refnedy in addition to the express statutory remedies is inappropriate in this-context. Affirmed

Mr. Justice Stewart,

dissenting.

Until this case, every federal court that has faced the issue has upheld judicial power to award counsel fees in trademark infringement cases. In order to overrule that unbroken line of authority, I would have to be satisfied that Congress has clearly declared that counsel fees may not be awarded. The Court’s opinion does not convince me that Congress has made any such declaration..

It is not enough to say that Congress did not expressly provide for counsel fees in the original Lanham Act and has not subsequently amended the Act to authorize their allowance. There are many reasons for rejecting that kind of approach to statutory interpretation in this case. The Court acknowledges that a pre-Lanham Act decision—Aladdin Mfg. Co. v. Mantle Lamp Co., 116 F. 2d 708 (C. A. 7th Cir.)—held counsel fees were recoverable in a trademark action. It seems to me reasonable to assume that when Congress in the Lanham Act empowered courts to grant relief “subject to the principles of equity” it was aware of the Aladdin decision and intended to preserve the rule of that case. Other provisions of the statute support this view of the underlying congressional intent. For example, the Act provides:

“If the court shall find that the amount of the recovery based on profits is either inadequate or excessive the court may in its discretion enter judgment for such sum as the court shall find to be just, according to the circumstances of the case.”.

Allowing the court to consider the “circumstances of the case” to arrive at the amount of the judgment for the plaintiff hardly comports with the Court’s view that Congress rigidly limited the scope of remedies available in trademark litigation. I cannot say, in view of these provisions, that Congress intended sub silentio to overrule the Aladdin case.

The argument that Congress has declined to amend the Act to provide explicitly for counsel fees is hardly determinative. For Congress can be assumed to have known that the federal courts were consistently exercising the power to award counsel fees after the Act’s passage. The failure to amend the statute to do away with this judicial. power speaks as. loudly for its recognition as the failure to pass the bills referred to by the Court speaks for the contrary conclusion.

I respectfully dissent.

       Section 35 of the Lanham Act, 15 U. S. C. § 1117:
      “When a violation of any right of the registrant of a mark registered in the Patent Office shall have been established in any civil action arising under this chapter, the plaintiff shall bé entitled, subject to the provisions of sections 1111 and 1114 of this title, and subject to the principles of equity, to recover (1) defendant’s profits, (2) any damages sustained by the plaintiff, and (3) the costs of the action. ... In assessing damages the court may enter judgment, according to the circumstances of the case, for any sum above the amount found as actual damages, not exceeding three times such amount. If the court shall find that the amount of the recovery based on profits is either inadequate or excessive the court may in its discretion enter judgment for such sum as the court shall find to be just, according to the circumstances of the case. Such sum in either of'the above circumstances shall constitute compensation and not a penalty.”

       The Fleisehmann Distilling Corporation owns the American distribution rights to Scotch whiskey sold under the trademark “Black & White.” Its co-petitioner is James Buchanan & Co., Ltd., owner and registrant of the trademark.

       Maier Brewing Company, the principal respondent, is an independent brewery which marketed a beer under the label “Black & White” through its co-respondent, Ralphs Grocery Company.

        E. g., Baker v. Simmons Co., 325 F. 2d 580 (C. A. 1st Cir. 1963); Wolfe v. National Lead Co., 272 F. 2d 867 (C. A. 9th Cir. 1959); Keller Products v. Rubber Linings Corp., 213 F. 2d 382 (C. A. 7th Cir. 1954); Century Distilling Co. v. Continental Distilling

        Corp., 205 F. 2d 140 (C. A. 3d Cir. 1953); Admiral Corp. v. Penco, Inc., 203 F. 2d 517 (C. A. 2d Cir. 1953). As the Court of Appeals in this ease pointed out, the decisions upholding awards of attorney’s fees under the Lanham Act in most instances merely state the conclusion that attorney’s fees are recoverable and cite prior case authority, often commencing with a pre-Lanham Act decision—Aladdin Mfg. Co. v. Mantle Lamp Co., 116 F. 2d 708 (C. A. 7th Cir. 1941).

        E. g., Youthform Co. v. R. H. Macy & Co., 153 F. Supp. 87 (D. C. N. D. Ga. 1957); Williamson-Dickie Mfg. Co. v. Davis Mfg. Co., 149 F. Supp. 852 (D. C. E. D. Pa. 1957); Francis H. Leggett & Co. v. Premier Packing Co., 140 F. Supp. 328 (D. C. Mass. 1956); Singer Mfg. Co. v. Singer Upholstering & Sewing Co., 130 F. Supp. 205 (D. C. W. D. Pa. 1955).

       “When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of . the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order . . . .”

       Statute of Gloucester, 1278, 6 Edw. 1, c. 1. This statute, which expressly mént-ioned only “the costs of his writ purchased,” was from the outset liberally construed to encompass all legal costs of suit, including counsel fees. Goodhart, Costs, 38 Yale L. J. 849, 852 (1929).

       Statute of Westminster, 1607, 4 Jac. 1, c. 3.

       See generally McCormick, Damages §60 (1935); Goodhart, Costs, 38 Yale L. J. 849-872 (1929) (passim).

       Ehrenzweig, Reimbursement of Counsel Fees and the Great Society, 54 Calif. L. Rev. 792 (1966); McCormick, Counsel Fees and Other Expenses of Litigation as an Element of Damages, 15 Minn. L. Rev. 619 (1931); Stoebuck, Counsel Fees Included in Costs: A Logical Development, 38 Colo. L. Rev. 202 (1966); Note, 65 Mich. L. Rev. 593 (1967).

       28 U. S. C. §1923 (a), which is derived from the Fee Bill of 1853, 10 Stat. 161, might be termed a “general exception.” It provides for recovery of nominal sums known as “Attorney’s and proctor’s docket fees.” In ordinary litigation and “on trial or final hearing” the sum recoverable under this provision is $20, to be taxed as part of the costs defined by 28 U. S. C. § 1920.

       Section 34 of the Lanham Act, 60 Stat. 439, 15 U. S. C. § 1116.

       Section 35 of the Lanham Act, 60 Stat. 439, 15 U. S. C. § 1117 (quoted, supra, n. 1).

       See n. 11, supra.

       28 U. S. C. § 1920 provides:
      “A judge or clerk of any court of the United States may tax as costs the following:
      “(1) Fees of the clerk and marshal;
      “(2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;
      “(3) Fees and disbursements for printing and witnesses;
      “(4) Fees for exemplification and copies of papers necessarily obtained for use in the'case;
      “(5) Docket fees under section 1923 of this title.
      “A bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree.”

       35 U. S. C. § 285. This provision was enacted in 1946, as was the Lanham Act. 60 Stat. 778. It was revised in 1952, so as to limit such recovery to “exceptional cases.” 66 Stat. 813.

       See, e. g., Clayton Act, § 4, 38 Stat. 731, 15 U. S. C. § 15; Communications Act of 1934, § 206, 48 Stat. 1072, 47 U. S. C. § 206; Copyright Act, 17 U. S. C. § 116; Fair Labor Standards Act, § 16 (b), 52 Stat. 1069, 29 U. S. C. § 216 (b); Interstate Commerce Act, § 16, 34 Stat. 590, 49 U. S. C. § 16 (2); Packers and Stockyards Act, § 309 (f), 42 Stat. 166, 7 U. S. C. § 210 (f); Perishable Agricultural Commodities Act, § 7 (b), 46 Stat. 535, 7 U. S. C. § 499g (b); Railway Labor Act, § 3 First (p), 48 Stat. 1192, 45 U. S. C. § 153 First (p); Securities Act of 1933, § 11 (e), 48 Stat. 907, 15 U. S. C. § 77k (e); Securities Exchange Act of 1934, §§ 9 (e), 18 (a), 48 Stat. 890, 897, 15 U. S. C. §§ 78i (e), 78r (a); Servicemen’s Readjustment Act, 38 U. S. C. § 1822 (b); Trust Indenture Act, § 323 (a), 53 Stat. 1176, 15 U. S. C. § 77www (a). See also Fed. Rules Civ. Proc. 37 (a) and 56 (g).

       S. 2540, 83d Cong., 1st Sess., § 25 (1953), containing a provision for recovery of attorney’s fees, passed the Senate but failed of enactment in the House of Representatives. The Report accompanying the bill stated that the provision was intended to parallel the then recent addition to the patent statute. (See n. 16, supra.) A similar provision was embodied in H. R. 7734, 84th Cong., 1st Sess., §25 (1955), which also died after passing the originating House.

       Footnotes 4 and 5 of the Court’s opinion, ante, pp. 715-716, set out the copious authority supporting the power in trademark litigation to award counsel fees in appropriate circumstances.

       This case does not inyolve the “adoption of the English practice in this country,” but simply whether the established American practice of awarding counsel fees in appropriate trademark cases is to be repudiated.

       See, ante, pp. 715-716, n. 4.

       Section 35 of the Lanham Act, 60 Stat. 439, 15 U. S. C. § 1117.

        Ibid.

       This was the reasoning of the District Court, in A. Smith Bowman Distillery, Inc. v. Schenley Distillers, Inc., 204 F. Supp. 374, 377:
      “Mere silertce and inaction by Congress cannot be held to have repealed what has been found to be a well-established judicial power. Even though the Lanham Act may have been intended to be an integrated and comprehensive set of rules for trademark regulation and litigation to the exclusion of all conflicting rules, the retention of discretionary judicial power over the fixing of costs does not seem such a threat of inconsistency that it should by implication be held pre-empted or repealed by the Act. Some more positive action on the part of the legislature is necessary to indicate the Congressional intent to regulate what has long been an orthodox judicial function.” • (Footnote omitted.)


source: Caselaw Access Project

author: Mr. Justice Black Mr. Justice White,

license: Public Domain

text:
    WALDRON v. MOORE-McCORMACK LINES, INC.
    No. 233.
    Argued March 13, 1967.
    Decided May 8, 1967.

      Theodore H. Friedman argued the cause and filed briefs for petitioner.

      William M. Kimball argued the cause and filed a brief for respondent.
   Mr. Justice Black

delivered the.opinion of the Court.

The single legal question presented by this case is whether a vessel is unseaworthy when its officers assign too few crewmen to perform a particular task in a safe and prudent manner. It is to resolve this question, which the lower courts answered in the negative and which has caused a conflict afnong circuits, that we granted certiorari. 385 U. S. 810.

Petitioner, a member of the crew of respondent’s vessel S. S. Mormacwind, was engaged with four other seamen in a docking operation at the stern of the vessel as it approached a pier. At the last minute, the third mate, who was directing the docking, was instructed to put out an additional mooring line, a heavy eight-inch rope, which was completely coiled on the deck. The mate then ordered petitioner and another crewman to uncoil this heavy rope and carry it 56 feet to the edge of the ship. While petitioner was uncoiling a portion of the rope to carry it to the edge of the ship, he fell and injured his back. At the trial, as the Court of Appeals recognized, “[t]here was expert evidence to the effect that 3 or 4 men rather than 2 were required to carry the line in order to constitute ‘safe and prudent seamanship.’” 356 F. 2d 247, 248. Petitioner did not contend that the vessel as a whole was insufficiently manned or that there were too few men at the stern engaged in the overall docking operation. Neither did he contend that the third mate or the seaman assigned to uncoil the rope with him was incompetent, or that the rope was itself defective. His sole contention was that the mate’s assignment of two men to do the work of three or four constituted negligence and made the vessel unseaworthy. The District Court allowed the negligence issue to go to the jury; which found for' respondent, but granted a directed verdict to respondent on the unseaworthiness issue, holding that the above facts could not, as a matter of law, constitute unseaworthiness. The Court of Appeals, with one judge dissenting, affirmed, holding:

“If someone is injured solely by reason of an act or omission on the part of any member of a crew found to be possesséd of the competence of men of his eall-ing, there can be no. recovery unless the act or omission is proved to be negligent.” 356 F. 2d, at 251.

It is here unnecessary to trace the history of the judicial development and expansion of the doctrine of unseaworthiness. That task was recently performed in Mitchell v. Trawler Racer, Inc., 362 U. S. 539, 543-549, where the Court, rejecting the notion that a shipowner,is liable for temporary unseaworthiness only-if he is negligent, concluded: “There is no suggestion in any of the decisions that the duty is less onerous with respect to ... an unsea-worthy condition which may be only temporary. . . . What has evolved is a complete divorcement of unseaworthiness liability from concepts of negligence.” 362 U. S., at 549, 550. It is that principle which we conclude the lower courts failed to apply in their decisions in this case.

The basic issue here is whether there is any justification, consistent.with the broad remedial purposes of the doctrine of unseaworthiness, for drawing a distinction between the ship’s equipment, on the one hand, and its personnel, on the other. As regards equipment, the classic case of unseaworthiness arises when the vessel is either insufficiently or defectively equipped. In Mahnich v. Southern S. S. Co., 321 U. S. 96, however., the Court made it clear that the availability of safe and sufficient gear ón board does not preyent the actual use of defective gear from constituting unseaworthiness, for the test of seaworthiness is to be applied “when and where the work is to be done.” Id., at 104. And in Crumady v. The J. H. Fisser, 358 U. S. 423, we further clarified the extent of unseaworthiness liability by holding that, even though the equipment furnished for the particular task is itself safe and sufficient, its misuse by the crew renders the vessel unseaworthy. We emphatically stated the basis of our holding: “Unseaworthiness extends not only to the vessel but to the crew.” Id., at 427. For that proposition the Court cited Boudoin v. Lykes Bros. S. S. Co., 348 U. S. 336, where we said, “We see no reason to draw a line between the ship and the gear on the one hand and the ship’s personnel on the other.” Id., at 339,

We likewise see ho reason to draw, that line here. That, being so, under Mahnich it makes no . difference that respondent’s vessel was fully manned or that there was a sufficient complement of seamen engaged in the overall docking operation, for there were too few men assigned “when and where” the job of uncoiling the rope was to be done. And under Crumady it makes no difference that the third mate and two men he assigned to perform the job were themselves competent seamen, or that the rope was itself a sound piece of gear. By assigning too few men to uncoil and carry the heavy rope, the mate caused both the men and the rope to be misused.

This analysis, we believe, is required by a clear recognition of the needs of the seaman for protection from dangerous conditions beyond his control and the role of the unseaworthiness doctrine which, by shifting the risk to the shipowner, provides that protection. If petitioner had been ordered to use a defective pulley in lifting the rope, he. would clearly be protected by the doctrine of unseaworthiness. If the pulley itself were sound but petitioner had been ordered to load too much rope on it, he would likewise be protected. If four men had been, assigned to uncoil the rope but two of the men lacked the strength of ordinary efficient seamen, petitioner would again be protected. Should this protection be denied merely because the shipowner, instead of supplying petitioner with unsafe gear, insufficient gear, or incompetent manual assistance, assigned him insufficient manual assistance? We think not. When this Court extended the shipowner’s liability' for unseaworthiness to long-shoremen performing seamen’s work, Seas Shipping Co. v. Sieracki, 328 U. S. 85—either on board or on the pier, Gutierrez v. Waterman S. S. Corp., 373 U. S. 206, either with the ship’s gear or the stevedore’s gear, Alaska S. S. Co. v. Petterson, 347 U. S. 396, either as employees of an independent stevedore or as employees of a shipowner pro hac vice, Reed v. The Yaka, 373 U. S. 410—we noted that “the hazards of marine service, the helplessness of the- men to ward off the perils, of unseaworthiness, the harshpess of forcing them to shoulder their losses alone, and the broad range of the ‘humanitarian policy’ of the doctrine of seaworthiness,” id., at 413, should prevent the shipowner from delegating, shifting, or escaping his duty by using the men or gear of others to perform the ship’s work. By the same token, the shipowner should not be able to escape liability merely because he has used men rather than machines or physical equipment to perform that work.

Petitioner is entitled to present his theory of unseaworthiness to the jury, and the case is reversed and remanded for that purpose. ft ⅛ 80 ^

Mr. Justice White,

with whom Mr. Justice Harlan, Mr. Justice Brennan, and Mr. Justice Stewart join,

dissenting.

Under the. prevailing cases in this Court, there can be no doubt that a negligent or improvident act of a competent officer, crewman, or longshoreman can result in unseaworthiness if it renders otherwise seaworthy equipment unfit for the purpose for which it is used. Crumady v. The J. H. Fisser, 358 U. S. 423. Likewise, petitioner argues, an order of a ship’s officer assigning too few men to do a particular task creates an unseaworthy condition because the ship is undermanned in this specific respect. He challenges therefore, the prevailing rule in the Second Circuit requiring plaintiff in situations such as this to prove not only that the order was improvident but also that the officer issuing it was not equal in competence to ordinary men in the calling. See Pinto v. States Marine Corp. of Delaware, 296 F. 2d 1; Ezekiel v. Volusia S. S. Co., 297 F. 2d 215, and authorities cited therein. The majority agrees with the petitioner, at least where the improvident order requires the performance of tasks whose safe completion calls for the assignment of more men. The majority holds that the case should have gone to the jury on both the. negligence and unseaworthiness claims.

In my view, however, this case should be disposed of on other grounds. While it is true that unseaworthiness is legally independent of negligence, Mitchell v. Trawler Racer, Inc., 362 U. S. 539, it cannot be denied that in many cases unseaworthiness and negligence overlap. And on the facts of this case I think the claim of negligence was identical.with the claim of unseaworthiness. As the majority says, petitioner’s sole assertion is that assigning two men instead of three or four to. put out the line was “negligence and made the vessel unsea worthy.” The testimony supporting.the claim was thatsafe and prudent seamanship would require three or four men to move the line. But the jury, ruled against petitioner on his negligence claim, thereby deciding that the mate employed ordinary care in assigning two men to do the task. To me, the jury simply disagreed with petitioner’s witness and, based on the testimony of petitioner himself and that of the seaman who helped him, decided that it was not imprudent seamanship to have two men move the line rather than three or four. Had the jury thought otherwise and considered the job to require more than two men, it would have found the issuance of the order to be a negligent act. It is perhaps possible to conceive circumstances in which the assign-ment of two men to do the job of three would not be negligence, but I find no such special facts in this record. In my view, the adverse verdict on negligence makes unnecessary a retrial on the unseaworthiness claim even if one adopts the majority’s resolution of the legal question presented by petitioner.

       356 F. 2d 247.

       Compare American President Lines, Ltd. v. Redfern, 345 F. 2d 629, with The Magdapur, 3 F. Supp. 971; Koleris v. S. S. Good Hope, 241 F. Supp. 967; and the instant case. Other cases from the Third, Fourth, Fifth, and Ninth Circuits also seem to suggest a result different from the’one reached in the instant case. See, e. g., Ferrante v. Swedish American Lines, 331 F. 2d 571, cert. dismissed, 379 U. S. 801; Thompson v. Calmar S. S. Corp., 331 F. 2d 657, cert. denied, 379 U. S. 913; Hroncich v. American President Lines, Ltd., 334 F. 2d 282; Scott v. Isbrandtsen Co., 327 F. 2d 113; Blassingill
        v. Waterman S. S. Corp., 336 F. 2d 367; June T., Inc. v. King, 290 F. 2d 404. For a critical discussion of the decision below, see 66 Col. L. Rev. 1180 (1966).

       See generally Gilmore & Black, The Law of Admiralty § 6-38 et seq. (1957).

       This statement, of course, was made in the context of our holding that unseaworthiness results when a member of the crew is “not equal in disposition to the ordinary men of that calling.” 348 U. S., at 340. That is so, we explained, because the shipowner has a duty to provide a crew “competent to meet the contingencies of the voyage.” Ibid. The Court of Appeals here recognized that “the. vessel must be manned by ah adequate and proper number of men,” 356 F. 2d, at 251 (see, e. g., DeLima v. Trinidad Corp., 302 F. 2d 585; June T., Inc. v. King, 290 F. 2d 404), but then proceeded 4q draw a distinction between a well-manned ship and a well-manned operation aboard the ship.

       Under Mitchell, it makes no difference that the unseaworthy condition caused by inadequate manpower “may be only temporary.” 362 U. S., at 549. See generally Note, 76 Harv. L. Rev. 819 (1963).


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

text:
    JACKSON v. LYKES BROS. STEAMSHIP CO., INC.
    No. 575.
    Argued April 12, 1967.
    Decided May 8, 1967.
    . Charles R. Maloney argued the cause and filed a brief for petitioner.

      Benjamin W. Yancey argued the cause for respondent. With him on the brief were William E. Wright and G. Edward Merritt.

   Mr. Justice Black

delivered the opinion of the Court.

Luther Jackson, employed by Lykes Bros. Steamship Company, inhaled noxious gases and died while working as a longshoreman on a Lykes vessel on navigable waters. His widow, Helen Jackson, filed this action against Lykes in the Louisiana state trial court claiming that her husband’s death was proximately caused either by Lykes’ negligence in operating the ship or by the ship’s unseaworthiness. Lykes moved to dismiss on the ground that § 5 of the federal Longshoremen’s and Harbor Workers’ Compensation Act provides that compensation benefits required by that Act to be given by an employer to a longshoreman or his representative for “injury or death” “shall be exclusive and in place of all other liability of such employer to the employee.” The trial court, sustaining Lykes’ motion on the ground assigned in it, dismissed petitioner’s suit and the State Court of Appeal, Fourth Circuit, affirmed. 186 So. 2d 342. The Supreme Court of Louisiana finding “no error of law,” denied a writ of certiorari. 249 La. 460, 187 So. 2d 441. We granted certiorari because it appeared that, in deciding as they did, the Louisiana courts had failed to follow our holding in Reed v. The Yaka, 373 U. S. 410.

The crucial facts in Reed v. The Yaka are strikingly similar to those in the present case. Reed, a longshoreman, covered by the federal Longshoremen’s and Harbor Workers’ Compensation Act, was injured while loading a ship. The ship was owned by the Waterman Steamship Corporation but was being operated by a bare-boat charterer as owner pro hac vice which had directly employed Reed to work on the ship as a longshoreman. When Reed filed his suit for damages in rem against the ship, the ship defended on the ground that Reed being a longshoreman could not bring a personal action against the employer-owner pro hac vice because of the Act’s' exclusive recovery features and consequently he could not sue the ship. We rejected this contention on the express ground that Reed could sue the owner pro hoc vice personally despite the Act and despite the fact that the owner pro hac vice was his employer.

We held in Yaka that a longshoreman employed by a shipowner as a longshoreman could sue the owner for the ship’s unseaworthiness. In doing so we pointed out that in Seas Shipping Co. v. Sieracki, 328 U. S. 85, and other cases following it, a group of maritime workers, including stevedores, carpenters, and longshoremen, although employed by an independent contractor to work on the ship, were allowed to sue the owner for unseaworthiness of its ship. We also pointed out in Yaka that in Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U. S. 124, this Court had permitted a shipowner, sued by a longshoreman who had been directly hired by an independent stevedore employer under thesé circumstances, to bring an action over and recover from the independent stevedore employer despite the fact that the liability of the stevedore employer under thé Act “shall be exclusive and in place of all other liability.” Yaka also stressed the fact that the traditional humanitarian remedy for unseaworthiness was not to be destroyed by the kind of employment contract that a shipowner made with the people who worked on the ship.

In this case as in Yaka, the fact that the longshoreman was hired directly by the owner instead of by the independent. stevedore company makes no difference as to the liability of the ship or its owner. In the final analysis the contention here against recovery as in -Yaka is that .the longshoreman who is employed to work on a ship by an independent stevedore company instead of the shipowner can recover for the unseaworthiness of the vessel, but a longshoreman hired by the same shipowner to do exactly the same kind of work on an unseaworthy ship cannot recover. We reject this contention as we did before. We cannot accept such a construction of the Act—an Act designed to provide equal justice to every longshoreman similarly situated. We cannot hold that Congress intended any such incongruous, absúrd, and unjust result in passing this. Act.

We adhere to Yaka and hold that the Louisiana courts committed error in dismissing petitioner’s claim. Louisiana courts have broad jurisdiction of admiralty cases such as this and have frequently exercised it. In this situation it is the duty of the Louisiana courts to adjudicate this case. The judgment is reversed and remanded for trial and further proceedings in the Louisiana courts not inconsistent with this opinion. Testa v. Katt, 330 U. S. 386; Mondou v. New York, N. H. & H. R. Co., 223 U. S. 1; Claflin v. Houseman, 93 U. S. 130. See Garrett v. Moore-McCormack Co., 317 U. S. 239.

It is so ordered.

Mr.. Justice Stewart,

whom' Mr, Justice Harlan joins,

dissenting.

Luther Jackson was a longshoreman. He died from injuries received in the course of his employment. A federal law clearly imposes an absolute obligation upon his employer to pay compensation to his widow. The law’s humanitarian purpose is to ensure that all shall be compensated, regardless of the employer’s fault. That law just as clearly provides that the employer’s statutory obligation to pay this compensation “shall be exclusive and in place of all other liability ... at law or in admiralty.” Nonetheless, Jackson’s widow brought this admiralty action against his employer in Louisiana. The state courts dismissed the action, holding that the federal law means what it says. .

The Court today holds that this federal law cannot mean what it says, because this would lead to an “incongruous, absurd, and unjust -result.” The Court says that the result it reaches is dictated by its prior decision in Reed v. The Yaka, 373 U. S. 410. The Louisiana courts thought that the Yaka case, which involved the intervention of a third party, was distinguishable, and so do I. But in any event I would ’decide this case on its own facts under the law as it was clearly written by Congress..

Congress, in setting up a federal system of workmen’s compensation for longshoremen, imposing liability without fault upon employers, provided that, this should be the exclusive remedy against the employer himself. I cannot agree that the law Congress passed! is either “incongruous,” “absurd,” or “unjust.” If it is, then so are the workmen’s compensation laws of 49 States, all of which contain the same basic provision.

But even if I could agree with the Court’s characterization of the law that Congress has written, I could never agree with the Court’s judgment. It is our duty to apply the law, not to repeal it.

I respectfully dissent.

       44 Stat. 1426, as set forth in 33 U. S. C. § 905, provides:
      “The liability of an employer prescribed in section' 904 of this title shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer’ at law or in admiralty on account of such injury or death . . . .”
      Section 33 (a) of the Act, 44 Stat. 1440, as amended, set forth in 33 U. S. C. §933, also provides compensation for injuries where third persons are hable:
      “(a) If on account of a disability or death for which compensation is payable under this chapter the person entitled to such compensation determines that some person other than the employer or a person or persons in his employ is liable in damages, he need, not elect whether to, receive such compensation or to recover damages against such third person.”

       The Court of Appeal, Fourth Circuit, affirmed the lower court’s dismissal. That court, construing our recent opinion in Reed v. The Yaka, 373 U. S. 410, as permitting only an action against a vessel owned by an employer, concluded that the exclusive remedy provisions of the Longshoremen’s and Harbor Workers’ Compensation Act precluded petitioner from bringing a personal action against the shipowner employer. In so holding the Court of Appeal, Fourth Circuit, stated:
      “An analysis of the Yaka case reveals language which suggests that an in personam remedy may be available; the analysis likewise reveals that there exists reason for believing that the section of the Longshoremen’s and Harbor Workers’ Act referred to hereinabove has been taken-upon the judicial anvil and hammered into an unexpected shape. >
      “In any event, we are of the opinion that it exemplifies more judicial integrity to conclude that the rationale emanating from Yaka merely permits a longshoreman to bring an action in rem against his employer in the federal court.” 185 So. 2d, at 345.

        Sieracki extended the docTrine of seaworthiness to a longshoreman, even though the longshoreman was not a member of the crew, and in spite of the fact that- the longshoreman was entitled to compensation benefits under the Longshoremen’s and Harbor Workers’ Compensation Act.

       In 1953 this Court held in Pope & Talbot, Inc. v. Hawn, 346 U. S. 406, that other kinds of maritime employees, besides stevedores, .who performed jobs formerly done by seamen were entitled to the Seaworthiness protection given in Sieracki. There we said:
      “It is pointed out that Sieracki was a ‘stevedore.’ Hawn was not. And Hawn was not loading the vessel. On these grounds we are asked to deny Hawn the protection we held the law gave Sieracki. These slight differences in fact cannot fairly justify the distinction urged -as between the two cases. Sieracki’s legal protection was not based on the name ‘stevedore’ but on the type of work he did and its relationship to the ship and to the historic doctrine of seaworthiness. The ship on which Hawn was hurt was being loaded when the grain loading equipment developed a slight defect. Hawn was put to work on it so that the loading could go on at once. There he was hurt. His need for protection from unseaworthiness was neither more nor less than .that' of the stevedores then working with him on the ship or of seamen who had been or were about to go on a voyage. All were subjected to the same danger. All were entitled to like treatment under law.” 346 U. S., at 412-413.
      Subsequent decisions in line with the general' concepts put forth by this Court have read Sieracki expansively, and a wide range of maritime employees have been granted the benefits of the seaworthiness doetrine. Carpenters (Pope & Talbot, Inc. v. Hawn, 346 U. S. 406); electricians (Feinman v. A. H. Bull S. S. Co., 216 F. 2d 393); shipcleaners (Torres v. The Kastor, 227 F. 2d 664, and Crawford v. Pope & Talbot, Inc., 206 F. 2d 784); repairmen (Read v. United States, 201 F. 2d 758); and riggers (Amerocean S. S. Co. v. Copp, 245 F. 2d 291), who performed jobs formerly done by seamen, have recovered from shipowners on the seaworthiness doctrine. See Note, 75 Yale L. J. 1174, 1183.

         Reed v. The Yaka, 373 U. S., at 415:
      “We thinlCiR.would produce a‘ harsh and incongruous result, one out of keeping witih the dominant intent of Congress to help longshoremen, to distinghish between liability to longshoremen injured under precisely the same circumstances because some draw their pay directly from a shipowner-and others from a stevedoring company doing the ship’s service. Petitioner's need for protection from unseaworthiness was neither more nor less than' that of a longshoreman working for -a stevedoring company.”

       Longshoremen’s and Harbor Workers’ Compensation Act, §§ 4, 9, 44 Stat. 1426, 1429, 33 U. S. C. §§ 904, 909.

        Id., § 5, 44 Stat. 1426, 33 U. S. C. § 905.

       See 1 Schneider, Workmen's Compensation §§ 89-154 (3d ed.).


author: Mr. Justice Clark Mr. Justice Stewart,

text:
    ANDERS v. CALIFORNIA.
    No. 98.
    Argued March 14, 1967.
    Decided May 8, 1967.

      Ira Michael Reyman, by appointment of the Court, .384 U. S. 925, argued the cause and filed briefs for pétitioner. .

      George J. Roth, Deputy Attorney General of California, argued the cause for respondent. With him on the brief were Thomas C. Lynch, Attorney General, and William E. Jumes, Assistant Attorney Géneral.
   Mr. Justice Clark

delivered the opinion of the Court.

We are here concerned with the extent of the duty of a court-appointed appellate counsel to prosecute a first appeal from a criminal conviction, after that attorney has conscientiously determined that there is no merit to the indigent’s appeal.

After he was convicted of the felony of possession of marijuana, petitioner sought to appeal and moved that the California District Court of Appeal appoint counsel for him. Such motion was granted; however, after a study of the record and consultation with petitioner, the appointed counsel concluded that there was no merit to the appeal. He so advised the court by letter and, at the same time, informed the court that petitioner wished to file a brief in his own behalf. At this juncture, petitioner requested the appointment of another attorney. This request was denied and petitioner proceeded to file his own brief pro se. The State responded and petitioner filed a reply brief. On January 9, 1959, the District Court of Appeal unanimously affirmed the conviction, People v. Anders, 167 Cal. App. 2d 65, 333 P. 2d 854.

On January 21, 1965, petitioner filed an application for a writ of habeas corpus in the District Court of Appeal in which he sought to have his case reopened. • In that application he raised the issue of deprivation of the right to counsel in his original appeal because of the court’s refusal to appoint counsel at the appellate stage of the proceedings. The court denied the application on the same day, in a brief unreported memorandum opinion. The court stated that it “ha[dj again reviewed the record and [had] determined the appeal [to be] without merit.” The court also stated that “the procedure prescribed by In re Nash, 61 A. C. 538, was followed in this case . ...” On June 25, 1965, petitioner submitted a petition for a writ of habeas corpus to the Supreme Court of California, and the petition was denied without opinion by that court on July 14, 1965. Among other trial errors, petitioner claimed that both the judge and the prosecutor had commented. on his failure to testify contrary to the holding of this Court in Griffin v. California, 380 U. S. 609 (1965). We have concluded that California’s action does not comport with fair procedure and lacks that equality that is required by the Fourteenth Amendment.

I.

For a decade or more, a continuing line of cases has reached this Court concerning discrimination against the indigent defendant on his first appeal. Beginning with Griffin v. Illinois, 351 U. S. 12 (1956) where it was held that equal justice was not afforded an indigent appellant where the nature of the review “depends on the amount of money he has,” at 19, and continuing through Douglas v. California, 372 U. S. 353 (1963), this Court has consistently held invalid those procedures “where the rich man, who appeals as of right, enjoys the benefit of counsel’s examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift Lrr himself.” At 358. Indeed, in the federal courts, the advice of counsel has long been required whenever a defendant challenges a certification that an appeal is not taken in good faith, Johnson v. United States, 352 U. S. 565 (1957), and such representation must be in the role of an advocate, Ellis v. United States, 356 U. S. 674, 675 (1958), rather than as amicus curiae. In Ellis, supra, we concluded:

“If c®unsel- is convinced, after conscientious investigation, that the appeal is frivolous, of course, he may ask to withdraw on that account. If the court is satisfied that co.unsel has diligently investigated the possible grounds of appeal, and agrees with counsel’s evaluation of the.case, then leave to with-, draw may be allowed and leave to appeal may be denied.” At 675.

In Gideon v. Wainwright, 372 U. S. 335 (1963), the Sixth Amendment’s requirement that “the accused shall enjoy the right . : ..to have the Assistance of Counsel for his defence” was made obligatory on the States by the Fourteenth Amendment; the Court holding that “in our adversary system of criminal justice, any person haled into court, who is too. poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” At 344. We continue to adhere to these principles.

II.

In petitioner’s case, his appointed counsel wrote the .District Court of Appeal, stating:

“I will not file a brief on appeal as I am of the opinion that there is no merit to the appeal. I have visited and communicated with Mr. Anders and have explained my views and opinions to him .... [H]e- wishes to file a brief in this matter on his own behalf.”

The District Court of Appeal, after having examined the record, affirmed the conviction. We believe that counsel’s bare conclusion, as evidenced by his letter, was not enough. It smacks of the treatment that Eskridge received, which this Court cofademned. that permitted a trial judge to withhold a transcript if he found'that a defendant “has been accorded a fair and impartial trial, and in the Court’s opinion no grave or prejudicial errors occurred therein.” Eskridge v. Washington State Board, 357 U. S. 214, 215 (1958). Such a procedure, this Court said, “cannot be an adequate substitute for the right to full appellate review available to all defendants” who may not be able to afford such an expense. At 216. And in still another case in which “a state officer outside the judicial system” was given the power to deprive an indigent of his appeal by refusing to order a transcript merely because he thought the “appeal would be unsuccessful,” we reversed, finding that such a procedure did not meet constitutional standards. Lane v. Brown, 372 U. S. 477 (1963). Here the court-appointed counsel had-the transcript but refused to proceed with the appeal because he found no merit-in it. He filed a no-merit letter with the District Court of Appeal whereupon the court examined the record itself and affirmed the judgment. On a petition for a writ of habeas corpus some six years later it found the appeal had no merit. . It failed, however,, to say whether it was frivolous or not, but, after consideration, simply found the petition to be “without merit.” The Supreme Court, in dismissing this habeas corpus application, gave no reason at all for its decision and so we do not know the basis for its action. We cannot say that there was a finding of frivolity by either of the California courts or that counsel acted in any greater capacity than merely as amicus curiae which was condemned in Ellis, supra. Hence California’s procedure did not- furnish petitioner with counsel acting-in the role of an advocate nor did it provide that full consideration and resolution of the matter as is obtained when counsel is acting in that capacity. The necessity for counsel so acting is highlighted by the possible disadvantage the petitioner suffered here. In his pro se brief, which was filed in 1969, he urged several trial errors but failed to raise the point that both the judge and the prosecutor had commented to the jury regarding petitioner’s failure to testify. In 1965, this Court in Griffin v. California, supra, outlawed California’s comment rule, as embodied in Art. I, § 13, of the California Constitution.

III.

The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae. The no-merit letter and the procedure it triggers do not reach that dignity. Counsel should, and can with honor and without conflict, be of more assistance to his client and to the court. His role as advocate requires that he support his client’s appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request mush however, be accompanied by a brief referring to anything in the record .that might arguably support the appeal. A copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court — not counsel — then proceeds, after a full examination of all the proceedings, to decide whether the ease is wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the appeal, insofar as federal requirements are concerned, or. proceed to a decision on the merits, if state, law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.

This requirement would not force appointed counsel to brief his case against his client but would merely afford the latter that advocacy which a nonindigent defendant is able to obtain. It would also induce the court to pursue all the more vigorously its own review because of the ready references not only to the record, but also to the legal authorities as furnished it by counsel. The no-merit letter, on the other hand, affords neither the client nor the court any aid. The former must shift entirely for himself while the court has only the cold record which it must review without the help of an advocate. Moreover, such handling would tend to protect counsel from the constantly increasing charge that he was ineffective and had not handled the case with that diligence. to which an indigent defendant is entitled. ' This procedure will assure penniless defendants the same rights and opportunities on appeal — as nearly as is practicable — as are enjoyed by those persons who are in a similar situation but who are able to afford the retention of private counsel.

The judgment is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Mr. Justice Stewart,

whom Mr. Justice Black and Mr. Justice Harlan join,

dissenting.

The system used by California for handling indigent appeals was described by the California Supreme Court in In re Nash, 61 Cal. 2d 491, 495, 393 P. 2d 405, 408:

“We believe that the requirement of the Douglas case [372 U. S. 353] is met . . . when, as in this case, oounsel is appointed to represent the defendant on appeal, thoroughly studies the record, consults with the defendant and trial counsel, and conscientiously concludes that there are no meritorious grounds of appeal. If thereafter the appellate court is satisfied from its own review of the record in the .light of any points raised by the defendant personally that counsel’s assessment of the record is correct, it need not appoint another counsel to represent thé defendant on appeal and may properly decide the appeal without oral argument.” (Emphasis added.)

The Court today holds this procedure unconstitutional, and imposes upon appointed counsel who wishes to withdraw from a case he deems “wholly frivolous” the requirement of filing “a brief referring to anything in the record that might arguably support the appeal.” But if the record did present any such'“arguable” issues, the appeal would not be frivolous and counsel would not have filed a “no-merit” letter in the first place.

The quixotic requirement imposed by the Court can be explained, I think, only upon the cynical assumption that an appointed lawyer’s professional representation to an appellate court in a “no-m'erit” letter is not to be trusted. That is an assumption to which I cannot subscribe. I cannot believe that lawyers appointed to represent indigents are so likely to be lacking in diligence, competence, or professional honesty. Certainly there was no suggestion in the present case that the petitioner’s counsel was either incompetent or unethical.

But even if I could join in this degrading appraisal of the in forma pauperis bar, it escapes me how the procedure that the Court commands is constitutionally superior to the system now followed in California. The fundamental error in the Court’s opinion, it seems forme, is its implicit assertion that there can be but a single inflexible answer to the difficult problem of how to accord equal protection to indigent appellants in each of the 50 States.

Believing that' the procedure under which Anders’, appeal was considered was free of constitutional error, I would affirm the judgment.

       Previously, on January 24, 1964, petitioner, while on parole, had been arrested and convicted of the felony of burglary which was affirmed on appeal. We granted certiorari, ante, p. 264, vacated the judgment below and remanded for further consideration in light of Chapman v. California, ante, p. 18.

         In re Nash, 61 Cal. 2d 491, 393 P. 2d 405 (1964), held that the requirements of Douglas v. California, 372 U. S. 353 (1963), are met in the event appointed counsel thoroughly studies the record, consults with the defendant and trial counsel and conscientiously concludes, and so advises the appellate court, that there are no meritorious grounds of appeal; and provided that the appellate court is satisfied from its own review of the record, in light of any points" personally raised by the defendant, that appointed counsel’s conclusion is correct. The appeal then proceeds without the appointment of other counsel and decision is reached without argument.

       For comparative purposes see Tate v. United States, 123 U. S. App. D. C. 261, 359 F. 2d 245, and Johnson v. United States, 124 U. S. App. D. C. 29, 360 F. 2d 844, which outline the practice followed in the District of Columbia. These guidelines are elaborated in more detail in a “Statement to be Handed by the Clerk to Appointed Counsel” which has been prepared by the Court of Appeals for the District of Columbia Circuit. We indicate no approval of the requirements set out in the statement or in the cases.

      The Court concedes as much when it states such a brief should be filed only when counsel believes the case to be “wholly frivolous” and then goes on to hold “if [the California appellate court] finds any of the legal points arguable-on their merits (and therefore not frivolous) it must . . . afford the indigent the assistance of counsel .. . .” Ante, p. 744. (Emphasis added.)
      Even accepting the Court’s requirement, one would have to perceive an “arguable” issue in Anders’ case in order to remand it for a new appeal. The most that all of the courts and lawyers who have examined his case have.turned up is a claim that the prosecutor commented on his silence at trial. But Anders’ conviction was affirmed by the California District Court of Appeal six years before Griffin v. California, 380 U. S. 609, was decided. Our later decision in Tehan v. Shott, 382 U. S. 406, was based on the premise that prior to Griffin the practice of commenting on the defendant’s silence was well established and thus did not raise an “arguable” issue. Cf. O’Connor v. Ohio, 385 U. S. 92.


author: Mr. Justice Clark

text:
    ENTSMINGER v. IOWA.
    No. 252.
    Argued March 15, 1967.
    Decided May 8, 1967.

      David W. Belin, by appointment of the Court, 385 U. S. 804; argued the cause and filed a brief for petitioner.

      Dón R. Bennett, Assistant Attorney General of Iowa, argued the cause for respondent. With him on the brief was Lawrence F. Scalise, Attorney General.
   Mr. Justice Clark

delivered the opinion of the Court.

This case, which was argued following Anders v. California, ante, p. 738, presents a similar problem in that we are here also concerned with the constitutional requirements which are binding on a State in the administration of its appellate criminal procedures with respect to convicted indigents - seeking initial review of their convictions. Petitioner, who was represented at trial by a court-appointed attorney, was convicted of uttering a forged instrument in violation of Iowa law. Shortly after the verdict was rendered, he requested the trial court to appoint different counsel to aid him in the preparation of a motion for new trial. Counsel was appointed, the motion was prepared and filed but the trial court overruled it. Upon petitioner’s application, the same attorney was appointed to represent him on appeal; counsel then prepared and filed a timely notice of appeal.

Iowa law provides alternate methods of appealing criminal convictions, the first method being an appeal on a “clerk’s transcript” which follows the notice of appeal as a matter of course. Under this procedure, the clerk of the trial court prepares and files a modified transcript of the proceedings below; such transcript contains only the Information or Indictment, the Grand Jury Minutes, the Bailiff’s Oath, Statement and Instructions, various, orders and judgment entries of the court, but does not contain the transcript of evidence nor the briefs and argument of counsel. This, practice is used in the absence of a request on the part of counsel for a plenary review-of the case. If such a request is made, the appellant is provided an appeal on a complete record of the trial, including not only those items included in the clerk’s transcript but in addition thereto, the briefs and argument of counsel.

Petitioner asked his appointed attorney to perfect a plenary .appeal and counsel gave notice therefor which, though belatedly filed, was allowed by the Iowa Supreme Court. However, counsel, apparently believing that the appeal was without merit, failed to file the entire record of petitioner’s trial although it had. been prepared by-the State and counsel had advised petitioner that he would file same. It is of note that counsel nevér moved the court for leave to withdraw from'-the case. Despite the fact that the Supreme Court had ordered the case submitted on the full record, briefs and arguments of counsel — and the record here fails to reveal any rescission of that order — the court took petitioner’s case into consideration on the clerk’s transcript alone as it was required to do under Iowa law. The conviction was affirmed by the Supreme Court of Iowa, State v. Entsminger, 137 N. W. 2d 381 (1965). This was done despite the request of the petitioner a few days before the affirmance of his conviction, that the court issue an order commanding the trial court to “transmit the certified records” to the Supreme Court for its review. We granted certiorari, 384 U. S. 1000.

The Attorney General of Iowa in the utmost candor and with most commendable fairness concedes that petitioner has not received “adequate appellate review” and is entitled to an appeal free of constitutional doubt. We have examined the record carefully and agree that the clerk’s transcript procedure as applied, here “can hardly be labeled adequate and effective review of the merits of the proceedings culminating in a conviction.” He bases his conclusions in this regard upon the holding of the Iowa Supreme Court in Weaver v. Herrick, 258 Iowa 796, 140 N. W. 2d 178 (1966), where the court specifically stated:

“To afford an indigent defendant an adequate appeal from his conviction, the furnishing of a transcript, printed record and necessary briefs is required.” At 801-802, 140 N. W. 2d, at 181.

As we have held again and again, an indigent defendant is entitled to the appointment of counsel to assist him on his first appeal, Douglas v. California, 372 U. S. 353 (1963), and appointed counsel must function in the active role of an advocate, as opposed to that of amicus curiae, Ellis v. United States, 356 U. S. 674 (1958). In Griffin v. Illinois, 351 U. S. 12 (1956), the Court held that a State that provided transcripts on appeal only to those who could afford them was constitutionally required to provide a “means of affording adequate and effective appellate review to indigent defendants.” At 20. Again in Burns v. Ohio, 360 U. S. 252 (1959), the Court, in reaffirming the Griffin rule, held that “once the State chooses to establish appellate review in criminal cases, it may not foreclose indigents from access to any phase of that procedure because of their poverty.” At 257. In Smith v. Bennett, 365 U. S. 708 (1961), the Court, once again considering the question, held that such principles are not limited to direct appeals but are also applicable to post-conviction proceedings. In that case the Court held that “the Fourteenth Amendment weighs the interests of rich and poor criminals in equal scale, and its hand extends as far to each.” At 714. Here there is no question but that petitioner was precluded from obtaining a complete and effective appellate review of his conviction by the operation of the clerk’s transcript procedure as embodied in Iowa law. Such procedure automatically deprived him of a full record, briefs, and arguments on the bare election of his appointed counsel, without providing,any notice to him or to the reviewing court that he had chosen not to file the complete record in the case. By such action “all hope of any [adequate and effective] appeal at all,” Lane v. Brown, 372 U. S. 477, 485 (1963), was taken from the petitioner.

Since petitioner admittedly has not received the benefit of a first appeal with a full printed abstract of the record, briefs, and oral argument, as was his right under Iowa law, we do not reach the merits of his conviction here. We have discussed at some length the responsibility of both the appellate court and appointed counsel representing indigents on appeal in Anders v. California, supra, decided this day, and we need not repeat such here. The judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Mr. Justice, Stewart, with whom Mr. Justice Black and Mr. Justice Harlan join, concurs in the judgment and in the Court’s opinion, except as it refers to Anders v. California, a case which ' he thinks involves quite different issues.

       Iowa Code §793.6 (1962).

       Rules of the Supreme Court, Rule 16, Iowa Code, Vol. II, p. 2716 (1962).

        Id., Rule 15.

       Indeed the Attorney General has moved the Supreme Court of Iowa to change its rule with respect to the clerk’s transcript system and his suggested changes and the responsibility of appointed counsel thereunder are now under advisement. We do not pass on the validity of the suggested procedure.


author: Mr. Justice Stewart Mr. Justice Fortas,

text:
    NATIONAL BELLAS HESS, INC. v. DEPARTMENT OF REVENUE OF THE STATE OF ILLINOIS.
    No. 241.
    Argued February 23, 1967.
    Decided May 8, 1967.

      Archibald Cox argued the cause for appellant. With him on the. briefs were Herman A. Benjamin and Julian R. Wilheim.

      Terence F. MacCarthy, Specihl Assistant Attorney General of Illinois, argued the causé for appellee. With .him on the brief were William G. Clark, Attorney General, and Richard A. Michael, Assistant Attorney General. •

      James B. Lewis and Jay H. Topkis filed a brief for the American Heritage Publishing Co., Inc., as amicus curiae, urging reversal.
   Mr. Justice Stewart

delivered the opinion the Court.

The appellant, National Bellas Hess, is a mail order house with its principal place of business in North Kansas City, Missouri. It is licensed to do business in only that State and in Delawaré, where it is incorporated. Although the company has neither outlets nor sales representatives in Illinois, the appellee, Department of Revenue, obtained a judgment from the Illinois Supreme Court that National is required to collect and pay to the State the use taxes imposed by Ill. Rev. Stat. c. 120, § 439.3 (1965). Since National’s constitutional objections to the imposition of this liability present a substantial federal question, we noted probable jurisdiction of its appeal.

The facts bearing upon National’s relationship with Illinois are accurately set forth in the opinion of the State Supreme Court:

“[National] does not maintain in Illinois any office, distribution house, sales house, warehouse or any other place of business; it does not have in Illinois any agent, salesman, canvasser, solicitor or other type of representative to sell or take orders, to deliver merchandise, to accept payments, or to service merchandise it sells; it does not own any tangible property, real or personal, in Illinois; it has no telephone listing in Illinois and it has not advertised its merchandise for sale in newspapers, on billboards, or by radio or television , in Illinois.”

All of the contacts which National does have with the State are via the United States mail or common carrier. Twice a year catalogues are mailed to- the company’s active or recent customers throughout the Nation, including Illinois. This mailing is supplemented by advertising “flyers” which are occasionally mailed to past and potential customers. Orders for merchandise are mailed by the customers to National and are accepted at its Missouri plant. The ordered goods are then sent to the customers either by mail or by common carrier.

This manner of doing business is sufficient under the Illinois statute to classify National as a “[r]etailer maintaining a place of business in this State,” since that term includes any retailer:

“Engaging in soliciting orders within this State from users by means of catalogues or other advertising, whether such, orders are received or accepted within or without this State.” Ill. Rev. Stat. c. 120, § 439.2 (1965).

Accordingly, the statute requires National to collect and pay to the appellee Department the tax imposed by Illinois upon consumers who purchase the company’s goods for use within the State. When collecting this tax, National must give the Illinois purchaser “a receipt therefor in the manner and form prescribed by the [appellee],” if one.is demanded. It must also “keep such records, receipts, invoices and other pertinent books, documents, memoranda and papers as the [appellee] shall require, in such form as the [appellee] shall require, and must submit to such investigations, hearings, and examinations as are needed by the appellee to administer and enforce the use tax law. Failure to keep such records or to give required receipts is punishable by a fine of up to $5,000 and imprisonment of up to six months. Finally, to allow, service of process on an out-of-state company like National, the statute designates the Illinois Secretary of State as National’s appointed agent, and jurisdiction in tax collection suits attaches when process is served on him and the company is notified by registered mail.

National argues that the liabilities which Illinois has thus imposed violate the Due Process Clause of the Fourteenth Amendment and create an unconstitutional burden upon interstate commerce. These two claims are closely related. For the test whether a particular state exaction-is such, as to. invade the exclusive authority of Congress to fegulate trade between the States: and the test for a State’s compliance with the requirements of due process in this area are similar. See Central R. Co. v. Pennsylvania, 370 U. S. 607, 621-622 (concurring opinion of Mr. Justice Black). As to the former, the Court has held that “State taxation falling on interstate commerce . . . can only be justified as designed to make such commerce bear a fair share of the cost of the local government whose protection it enjoys.” Freeman v. Hewit, 329 U. S. 249, 253. See also Greyhound Lines v. Mealey, 334 U. S. 653, 663; Northwestern Cement Co. v. Minnesota, 358 U. S. 450, 462. And in determining whether a state táx falls within the confines of the Due Process Clause, the Court has said that the “simple but controlling question is whether the state has given anything for which it can ask return.” Wisconsin v. J. C. Penney Co., 311 U. S. 435, 444. See also Standard Oil Co. v. Peck, 342 U. S. 382; Ott v. Mississippi Barge Line, 336 U. S. 169, 174. The same principles have been held applicable in determining the power of a State to impose-thé burdens of collecting use taxes upon interstate sales. Here, too, the Constitution requires “some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax.” Miller Bros. Co. v. Maryland, 347 U. S. 340, 344-345; Scripto, Inc. v. Carson, 362 U. S. 207, 210-211. See also American Oil Co. v. Neill, 380 U. S. 451, 458.

In applying, these principles the Court has upheld the power of a State to impose liability upon an out-of-state seller to collect a local use tax in a variety of circumstances. Where the sales were arranged by local agents in the taxing State, we have upheld such power; Felt & Tarrant Co. v. Gallagher, 306 U. S. 62; General Trading Co. v. Tax Comm’n, 322 U. S. 335.' We have reached the same result where the mail order seller maintained local retail stores. Nelson v. Sears, Roebuck & Co., 312 U. S. 359; Nelson v. Montgomery Ward, 312 U. S. 373. In those situations the out-of-state seller was plainly accorded the protection and services of the taxing State. The case in this Court which represents the furthest constitutional reach to date of a State’s power to deputize an out-of-state retailer as its collection agent for a use tax is Scripto, Inc. v. Carson, 362 U. S. 207. There we held that Florida could constitutionally impose upon a Georgia seller the duty of collecting a state use tax upon the sale of goods shipped to customers in Florida. In that case the seller had “10 wholesalers, jobbers, or ‘salesmen’ conducting continuous local solicitation in Florida and forwarding the resülting orders from that State to Atlanta for shipment of the ordered goods.” 362 U. S., at 211.

But the Court has never held that a State may impose the duty of use tax collection and payment upon a seller whose only connection with customers in the State is by common carrier or the United States mail. Indeed, in the Sears, Roebuck case the Court sharply differentiated such a situation from one where the seller had local retail outlets, pointing out that “those other concerns ... are not receiving benefits from Iowa for which it has the power to exact & price.” 312 U. S., at 365. And in Miller Bros. Co. v. Maryland, 347 U. S. 340, the Court held that Maryland could not constitutionally impose a use tax obligation upon a Delaware seller who had no retail outlets or sales solicitors in Maryland. There the seller advertised its wares to Maryland residents through newspaper and radio advertising, in addition to mailing circulars four times a year. As a result, it made substantial sales to Maryland customers, and made deliveries to them by its own trucks and drivers.

In order to uphold the power of Illinois to impose use tax burdens .on National in this case, we would have to repudiate totally the sharp distinction which these and other debisions have drawn between mail order sellers with retail outlets, solicitors, or property within a State, and those who do no more than communicate with customers in the State by mail or common carrier as part of a general interstate business. But this basic distinction, which until now has been generally recognized by the state taxing authorities, is a valid one, and we decline to obliterate it.

We need not rest on the broad foundation of all that Was said in the Miller Bros. opinion,, for here-there was neither local advertising nor local household deliveries, upon which the dissenters in Miller Bros. so largely relied. 347 U. S., at 358. Indeed, it is difficult to conceive of commercial transactions more exclusively interstate in character than the mail order transactions here involved. And if the power of Illinois to impose use tax burdens upon National were upheld, the resulting impediments upon the free conduct of its interstate business would be neither imaginary nor remote. For if Illinois can impose such burdens, so can every other State, and so, indeed, can every municipality, every school district, and every other political subdivision throughout the Nation with power to impose sales and use taxes. The many variations in rates of tax, in allowable exemptions, and in administrative and record-keeping requirements could entangle National’s interstate business in a virtual welter of complicated obligations to local jurisdictions with no legitimate claim to impose “a fair share of the cost of the local government.”

The very purpose of. the Commerce Clause was to ensure a rational economy free from such unjustifiable local entanglements. Under the Constitution, this is a domain where Congress alone has the power of regulation, and control.

The judgment is

Reversed.

Mr. Justice Fortas,

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

dissenting.

In my opinion, this Court’s decision in Scripto, Inc. v. Carson, 362 U. S. 207 (1960), as well as a realistic approach to the facts of appellant’s business, .dictates affirmance of the judgment of the Supreme Court of Illinois.

National Bellas Hess is a large retail establishment specializing in wearing apparel. Directly and through subsidiaries, it operates a national retail mail order business With headquarters in North Kansas City, Missouri, and its wholly owned subsidiaries operate a large number of retail stores in -various States. In 1961, appellant’s net sales were in the neighborhood of $60,000,000, and its accounts receivable amounted td about $15,500,00o.

Its sales in Illinois amounted to $2,174,744 for the approximately 15 months for which the taxes in issue in this case were assessed. This substantial volume is obtained by twice-a-year catalogue mailings, supplemented by “intermediate smaller ‘sales books’ or ‘flyers,’ ” as the court below styled them. The catalogue contains about 4,000 items of merchandise. The company’s mailing list includes over 5,000,000 names. The “flyers” are sent to an even larger list than the catalogues and are occasionally mailed in bulk addressed to “occupant.”

A substantial part of Bellas Hess’ sales is on credit. Its catalogue features “NBH Budget Aid Credit” — which requires no money down but requires, the purchaser to make monthly payments which include a service fee or interest charge, and which also incorporates an agreement, unless expressly rejected by the purchaser, for “Budget Aid Family Insurance.” The company also offers “charge account” services — payable monthly including a “service charge” if the account is not fully paid within 30 days. The form to be filled in for credit purchases contains the usual type of information, including place of employment, name of bank, marital status, home ownership or rental. Merchandise can also be bought c. o. d. or by sending a check or money order with the order for goods.

There should be no doubt that this large-scale, systematic, continuous solicitation and exploitation of the Illinois consumer market is a. sufficient “nexus” to require Bellas Hess to collect from Illinois customers and to remit the use tax, especially when coupled with the use of the credit resources of residents of Illinois, dependent as that mechanism is upon the State’s banking and credit institutions. Bellas Hess is not simply using the facilities of interstate commerce to serve customers in Illinois. It is regularly and continuously engaged in “exploitation of the consumer market” of Illinois (Miller Bros. Co. v. Maryland, 347 U. S. 340, 347 (1954)) by soliciting residents of Illinois who live and work there and have homes and baánking connections there, and who, absent the solicitation of Bellas Hess, might buy locally and pay the sales tax to support their State. Bellas Hess could not carry on its business in Illinois, and particularly its substantial credit business, without utilizing Illinois banking and credit facilities. Since the case was tried on affidavits, we are not informed as to the details of the compañas credit operations in Illinois. We do not know whether it utilizes credit information or collection 'agencies, or similar institutions. The company states that it has “brought no suits in the State of Illinois.” Accepting this as true, it would nevertheless be unreasonable to assume that the company does not either sell or assign its accounts or otherwise take measures- to collect its delinquent accounts, or that collection does pot include local activities by the company or its assignees or representatives.

Bellas Hess enjoys the benefits of, and profits from the facilities nurtured by, the State of Illinois as fully as if it were a retail store or maintained salesmen therein. Indeed, if it did eitheif, the benefit that it. received from the State of Illinois would be no more than it now has — the ability to make, sales of its merchandise, to utilize credit facilities, and to realize a profit; and, at the same time, it would be required to pay additional taxes. Under the present arrangement,; it .conducts its substantial, regular, and systematic business, in Illinois and the State demands only that it collect from its customer-users — and remit to the State — the use tax which is merely equal to the sales tax which resident merchants must collect and remit. To excuse Bellas Hess from this obligation is to burden and penalize retailers located in Illinois who must collect the sales tax from their customers. In Illinois the rate is 3½%, and when it is realized that in some communities the sales tax requires, in effect, that as much as 5% be added to the amount that customers of local, tax-paying stores must pay, the importance of the competitive discrimination becomes apparent. While this advantage to out-of-state sellers is tolerable and a necessary constitutional consequence where the sales are. occasional, minor and sporadic and not the result of a calculated, systematic exploitation of the market, it certainly should not be extended to instances where the out-of-state company is engaged in exploiting the local market on a regular, systematic, large-scale basis. In such cases, the difference between the nature of the business conducted by the mail order house and by the local enterprise is not entitled to constitutional significance. The national mail order business amounts to over $2,400,000,000 a year. Some of this is undoubtedly subject ,to the full range of taxes because of the location of stores in the various States, and some of it is and should be exempt from state use tax because of its sporadic or minor nature. See Report of the Special Subcommittee on State Taxation of Interstate Commerce of the House Judiciary Committee, H. R. Rep. No. 565, 89th Cong., 1st Sess., Vol. 3 (1965), at 770-777. But the volume which, under the present decision, will be placed in a favored position and exempted from bearing its fair burden of the collection of state taxes certainly will be substantial, and as state sales taxes increase, this haven of immunity may well increase in size and importance.

In Scripto, supra, this Court applied a sensible, practical conception of the Commerce Clause. The interstate seller which, in that case, claimed constitutional immunity from the collection of the Florida use tax had, like appellant here, no office or place of business in the State, and had no property or employees there. It. solicited orders in Florida through local “independent contractors” or brokers paid on a commission basis. These brokers were furnished catalogues and samples, and forwarded orders to Scripto, out of state. The Court noted that the seller was “charged with no tax—save when . . . he fails or refuses to collect it” (362 U. S., at 211) and that the State “reimburs[ed the seller] . . I for its service” as tax collector (362 U. S., at 212). The same is true in the present case. I do not see how Scripto is meaningfully distinguishable from this case. In fact, Scripto involved the sale of a single article of commerce. The “exploitation” of the State’s market was by no means as pervasive or comprehensive as is here involved, nor was there any reference to the company’s use of the State’s credit institutions.

The present case is, of course, not at all controlled by Miller Bros. Co. v. Maryland, 347 U. S. 340 (1954). In that case, as this Court said, the company sold its merchandise at its store in Delaware; there was “no solicitation other than the incidental effects of general advertising ... no invasion or exploitation of the consumer market . . . .” 347 U. S., at 347. As the Court noted in Scripto, supra, Miller Bros, was a case in which there was “no regular, systematic displaying of its products by catalogs, samples or the like.” 362 U. S., at 212. On the contrary, in the present case, appellant regularly sends hot only its catalogue, but even bulk mailings soliciting business addressed to “occupant,” and it offers and extends credit to residents of Illinois based on their local financial references.

As the Court says, the test whether an-out-of-state business must comply, with a state levy is variously formulated: “whether the state has given anything for which it can ask return”; whether the out-of-state business enjoys the protection or benefits of the State; whether there is a sufficient nexus: “some definite link, some minimum connection, between a state and the, person, property or transaction it seeks to tax.” However this is formulated^it seems to me entirely clear that a mail order house engaged in the business of regularly, systematically, and on a large scale offering merchandise for sale in a State in competition with local retailers, and soliciting deferred-payment credit accounts frorri the State’s residents, is hot excused from compliance with the State’s use tax obligations by the Commerce Clause or the Due Process Clause of the Constitution.

It is hardly worth remarking that appellant’s expressions of. consternation and alarm at the burden which the mechanics of compliance with use tax obligations would place upon it and others similarly situated should not give us pause. The burden is no greater than that placed upon local retailers by comparable sales tax obligations; and the Court’s response that these administrative and record keeping requirements could “entangle” appellant’s interstate business in a welter of complicated obligations vastly underestimates the skill of contemporary man and his machines. There is no doubt that the collection of taxes from consumers is a burden; but it is no more of a burden on a mail order house such as appellant located in another State than on an enterprise in the same State which accepts orders by mail; and it is, indeed, hardly more of a burden than it is on any ordinary retail store in the taxing State.

I would affirm.

       34 Ill. 2d 164, 214 N. E. 2d 755.

       385 U. S. 809.

       34 Ill. 2d, at 166-167, 214 N. E. 2d, at 757.

       Ill. Rev. Stat. c. 120, § 439.3 (1965).

        Id., § 439.5.

         Id., § 439.11.

       Id., § 439.14.

        Id., § 439.12a.

       Strictly speaking, there is no question of the. connection- or link between the State and “the person ... it seeks to tax.” For that person in Miller Bros. Co. v. Maryland, 347 U. S. 340, in Scripto, Inc. v. Carson, 362 U. S. 207, and in the. present case is the user of the goods to whom the out-of-state retailer sells. National is not -the person being directly taxed, but rather it is asked to collect the tax from the user. It is, however, made directly liable for the payment of the tax whether collected or not. Ill. Rev. Stat. c. 120, § 439.8 (1965).

       National acknowledges its obligation to collect a use tax in Alabama, Kansas, and Mississippi, since it has retail outlets in those States.

       As of 1965, 11 States besides Illinois had use tax statutes which required a seller like National to participate in the tax collection system. However, state taxing administrators appear to have generally considered an advertising nexus insufficient. For they have testified that doubts as to the constitutionality of such statutes underlay their failure to take full advantage of their statutory authority. Report of the’ Special Subcommittee on State Taxation of Interstate Commerce of the House Committee on the Judiciary, H. R. Rep. No. 565, 89th Cong., 1st Sess., 631-635 (1965). These doubts were substantiated by the only other State Supreme Court that has considered the issue now before us. The Alabama Supreme Court, dealing with a situation very much dike the present one, found that this application of the use tax statute would be invalid under the Federal Constitution, State v. Lane Bryant, Inc., 277 Ala. 385, 171 So. 2d 91.

       “Local sales taxes are imposed today [1965] by over 2,300 localities. ... In most States, the local sales tax is complemented by a use tax.” H. R. Rep. No. 565, supra, at 872.

       In 1964 there were seven different rates of sales and use taxes: 2, 2¼, 2½, 3, 3½, 4, and 5%. H. R. Rep. No. 565, supra, at 611—613, 607-608. The State of Washington has recently added an eighth, 4.2%. Wash. Rev. Code § 82.12.020 (Supp. 1965).

       “The prevailing system requires [the seller] to administer rules which differ from one State to another and whose application— especially for the industrial retailer — turns on -facts which are often too remote and uncertain for the level of accuracy demanded by the prescribed system.” H. R. Rep. No. 565, supra, at 673.
      “Given the broad spread of sales of even small and moderate sized companies, it is clear that if just the localities which now impose the tax were to realize anything like their potential of out-of-State registrants the recordkeeping task of multistate sellers would be-clearly intolerable.” Id., at 882.

       Congress has in fact recently evidenced an active interest in this area. See Tit. II, Pub. L. 86-272, 73 Stat. 556, as amended by Pub. L. 87-17, 75 Stat. .41, which authorized the detailed congressional study of state taxation of interstate commerce that resulted in H. R. Rep. No. 565, supra. See also H. R. Rep. No. 2013, 89th Cong., 2d Sess. (1966).

       Moody’s Industrial Manual (1962).

       Because this case was tried on affidavits, reference has also been.made to the National Bellas Hess Catalogue, Spring and Summer 1967, to supplement the picture of appellant’s business afforded by the record.

       This is the current rate in Pennsylvania. Pa. Stat. Ann., Tit. 72, § 3403-201 (1964). See The World Almanac (1967, Newspaper Enterprise Assn.) 136-137.

       U. S. Bureau of the Census, 1963 Census of Business, Retail Trade-Area Statistics, pt. 1, table 2, p. 1-8 (1966).

       See Nelson v. Sears, Roebuck & Co., 312 U. S. 359 (1941); Nelson v. Montgomery Ward, 312 U. S. 373 (1941).

       Our observation in Nelson v. Sears, Roebuck & Co., 312 U. S. 359, 365-366 (1941), is an apt response to appellant’s claim that ..it will not be able to collect all of the tax from its purchasers: “[S]o far as assumed losses on tax collections are concerned, respondent is in no position to found a constitutional right oh the practical opportunities for tax avoidance which its method of doing business, affords Iowa residents, or to claim a constitutional immunity because it may elect to deliver the goods before the tax is paid.” Actually, it appears that appellant’s method of doing business Is spch as to minimize the noncollection of the tax.

       The Illinois statute provides for a “discount of 2% or $5 per calendar year, whichever is greater ... to reimburse the retailer for expenses incurred in collecting the tax, keeping records, preparing and .filing returns, remitting the tax and supplying data . . . .” Ill, Rev. Stat. c. 120, § 439.9 (1965). Appellant does not .claim that'' this /amount is inadequate to reimburse it for its. expenses in cqlfecting the tax for the State.

        Wisconsin v. J. C. Penney Co., 311 U. S. 435, 444 (1940).

        Nelson v. Sears, Roebuck & Co., 312 U. S. 359, 364 (1941).

         Miller Bros. Co. v. Maryland, 347 U. S. 340, 344-345 (1954).