source: Caselaw Access Project

author: Mr. Justice White Mr. Justice Douglas, Mr. Justice Harlan,

license: Public Domain

text:
    REITMAN et al. v. MULKEY et al.
    No. 483.
    Argued March 20-21, 1967.
    Decided May 29, 1967.

      Samuel 0. Pruitt, Jr., argued the cause for petitioners. With him on the briefs was William French Smith.

      Herman F. Selvin and A. L. Wirin argued the cause for respondents. With them on the brief were Fred Okrand, Joseph A. Ball and Nathaniel S. Colley.

      Solicitor General Marshall, by special leave of Court, argued the cause for the United States, as amicus curiae, urging affirmance. With him on the brief were Assistant Attorney General Doar, Ralph S. Spritzer, Louis F. Claiborne, Nathan Lewin and Alan G. Marer.

    Briefs of amici curiae, urging affirmance, were filed by Thomas C. Lynch, Attorney General, Charles A. O’Brien, Chief Deputy Attorney General, Miles T. Rubin, Senior Assistant Attorney General, and Loren Miller, Jr., Howard J. Bechefsky, Philip M. Rosten and Harold J. Smot-kin, Deputy Attorneys General, for the State of California; by Louis J. Lefkowitz, pro se, Samuel A. Hirsh-owitz, First Assistant Attorney General, and George D. Zuckerman and Lawrence J. Gross, Assistant Attorneys General, for the Attorney General of the State of New York; by Gerald D. Marcus for the California Democratic State Central Committee; by Marshall W. Krause for the American Civil Liberties Union of Northern California; by Joseph B. Robison and Sol Rabkin for the National Committee against Discrimination in Housing; and by Abe F. Levy for the United Automobile, Aerospace & Agricultural Implement Workers of America (UAW) AFL-CIO, Region 6, et al.
   Mr. Justice White

delivered the opinion of the Court.

The question here is whether Art. I, § 26, of the California Constitution denies “to any person . . . the equal protection of the laws” within the meaning of the Fourteenth Amendment of the Constitution of the United States. Section 26 of Art. I, an initiated measure submitted to the people as Proposition 14 in a statewide ballot in 1964, provides in part as follows:

“Neither the State nor any subdivision or agency thereof shall deny, limit or abridge, directly or indirectly, the right of any person, who is willing or desires to sell, lease or rent any part or all of his real property, to decline to sell, lease or rent such property to such person or persons as he, in his absolute discretion, chooses.”

The real property covered by § 26 is limited to residential property and contains an exception for state-owned real estate.

The issue arose in two separate actions in the California courts, Mulkey v. Reitman and Prendergast v. Snyder. In Reitman, the Mulkeys, who are husband and wife and respondents here, sued under § 51 and § 52 of the California Civil Code alleging that petitioners had refused to rent them an apartment solely on account of their race. An injunction and damages were demanded. Petitioners moved for summary judgment on the ground that §§51 and 52, insofar as they were the basis for the Mulkeys’ action, had been rendered null and void by the adoption of Proposition 14 after the filing of the complaint. The trial court granted the motion and respondents took the case to the California Supreme Court.

In the Prendergast case, respondents, husband and wife, filed suit in December 1964 seeking to enjoin eviction from their apartment; respondents alleged that the eviction was motivated by racial prejudice and therefore would violate § 51 and § 52 of the Civil Code. Petitioner Snyder cross-complained for a judicial declaration that he was entitled to terminate the month-to-month tenancy even if his action was based on racial considerations. In denying petitioner’s motion for summary judgment, the trial court found it unnecessary to consider the validity of Proposition 14 because it concluded that judicial enforcement of an eviction based on racial grounds would in any event violate the Equal Protection Clause of the United States Constitution. The cross-complaint was dismissed with prejudice and petitioner Snyder appealed to the California Supreme Court which considered the case along with Mulkey v. Reitman. That court, in reversing the Reitman case, held that Art. I, § 26, was invalid as denying the equal protection of the laws guaranteed by the Fourteenth Amendment. 64 Cal. 2d 529, 413 P. 2d 825. For similar reasons, the court affirmed the judgment in the Prendergast case. 64 Cal. 2d 877, 413 P. 2d 847. We granted certiorari because the eases involve an important issue arising under the Fourteenth Amendment. 385 U. S. 967.

We affirm the judgments of the California Supreme Court. We first turn to the opinion of that court in Reitman, which quite properly undertook to examine the constitutionality of § 26 in terms of its “immediate objective,” its “ultimate effect” and its “historical context and the conditions existing prior to its enactment.” Judgments such as these we have frequently undertaken ourselves. Yick Wo v. Hopkins, 118 U. S. 356; McCabe v. Atchison, Topeka & Santa Fe R. Co., 235 U. S. 151; Lombard v. Louisiana, 373 U. S. 267; Robinson v. Florida, 378 U. S. 153; Turner v. City of Memphis, 369 U. S. 350; Anderson v. Martin, 375 U. S. 399. But here the California Supreme Court has addressed itself to these matters and we should give careful consideration to its views because they concern the purpose, scope, and operative effect of a provision of the California Constitution.

First, the court considered whether § 26 was concerned at all with private discriminations in residential housing. This involved a review of past efforts by the California Legislature to regulate such discriminations. The Unruh Act, Civ. Code §§ 51-52, on which respondents based their cases, was passed in 1959. The Hawkins Act, formerly Health & Safety Code §§ 35700-35741, followed and prohibited discriminations in publicly assisted housing. In 1961, the legislature enacted proscriptions against restrictive covenants. Finally, in 1963, came the Rum-ford Fair Housing Act, Health & Safety Code §§ 35700-35744, superseding the Hawkins Act and prohibiting racial discriminations in the sale or rental of any private dwelling containing more than four units. That act was enforceable by the State Fair Employment Practice Commission.

It was against this background that Proposition 14 was enacted. Its immediate design and intent, the California court said, were “to overturn state laws that bore on the right of private sellers and lessors to discriminate,” the Unruh and Rumford Acts, and “to forestall future state action that might circumscribe this right.” This aim was successfully achieved: the adoption of Proposition 14 “generally nullifies both the Rumford and Unruh Acts as they apply to the housing market,” and establishes “a purported constitutional right to privately discriminate on grounds which admittedly would be unavailable under the Fourteenth Amendment should state action be involved.”

Second, the court conceded that the State was permitted a neutral position with respect to private racial discriminations and that the State was not bound by the Federal Constitution to forbid them. But, because a significant state involvement in private discriminations could amount to unconstitutional state action, Burton v. Wilmington Parking Authority, 365 U. S. 715, the court deemed it necessary to determine whether Proposition 14 invalidly involved the State in racial discriminations in the housing market. Its conclusion was that it did.

To reach this result, the state court examined certain prior decisions in this Court in which discriminatory state action was identified. Based on these cases, Robinson v. Florida, 378 U. S. 153, 156; Anderson v. Martin, 375 U. S. 399; Barrows v. Jackson, 346 U. S. 249, 254; McCabe v. Atchison, Topeka & Santa Fe R. Co., 235 U. S. 151, it concluded that a prohibited state involvement could be found “even where the state can be charged with only encouraging,” rather than commanding discrimination. Also of particular interest to the court was Mr. Justice Stewart’s concurrence in Burton v. Wilmington Parking Authority, 365 U. S. 715, 726, where it was said that the Delaware courts had construed an existing Delaware statute as “authorizing” racial discrimination in restaurants and that the statute was therefore invalid. To the California court “[t]he instant case presents an undeniably analogous situation” wherein the State had taken affirmative action designed to make private discriminations legally possible. Section 26 was said to have changed the situation from one in which discrimination was restricted “to one wherein it is encouraged, within the meaning of the cited decisions”; § 26 was legislative action “which authorized private discrimination” and made the State “at least a partner in the instant act of discrimination . . . .” The court could “conceive of no other purpose for an application of section 26 aside from authorizing the perpetration of a purported private discrimination . . . .” The judgment of the California court was that § 26 unconstitutionally involves the State in racial discriminations and is therefore invalid under the Fourteenth Amendment.

There is no sound reason for rejecting this judgment. Petitioners contend that the California court has misconstrued the Fourteenth Amendment since the repeal of any statute prohibiting racial discrimination, which is constitutionally permissible, may be said to “authorize” and “encourage” discrimination because it makes legally permissible that which was formerly proscribed. But, as we understand the California court, it did not posit a constitutional violation on the mere repeal of the Unruh and Rumford Acts. It did not read either our cases or the Fourteenth Amendment as establishing an automatic constitutional barrier to the repeal of an existing law prohibiting racial discriminations in housing; nor did the court rule that a State may never put in statutory form an existing policy of neutrality with respect to private discriminations. What the court below did was first to reject the notion that the State was required to have a statute prohibiting racial dis-criminations in housing. Second, it held the intent of § 26 was to authorize private racial discrimina-tions in the housing market, to repeal the Unruh and Rumford Acts and to create a constitutional right to discriminate on racial grounds in the sale and leasing of real property. Hence, the court dealt with § 26 as though it expressly authorized and constitutionalized the private right to discriminate. Third, the court assessed the ultimate impact of § 26 in the California environment and concluded that the section would encourage and significantly involve the State in private racial discrimination contrary to the Fourteenth Amendment.

The California court could very reasonably conclude that § 26 would and did have wider impact than a mere repeal of existing statutes. Section 26 mentioned neither the Unruh nor Rumford Act in so many words. Instead, it announced the constitutional right of any person to decline to sell or lease his real property to anyone to whom he did not desire to sell or lease. Unruh and Rumford were thereby pro tanto repealed. But the section struck more deeply and more widely. Private dis-criminations in housing were now not only free from Rumford and Unruh but they also enjoyed a far different status than was true before the passage of those statutes. The right to discriminate, including the right to discriminate on racial grounds, was now embodied in the State’s basic charter, immune from legislative, executive, or judicial regulation at any level of the state government. Those practicing racial discriminations need no longer rely solely on their personal choice. They could now invoke express constitutional authority, free from censure or interference of any kind from official sources. All individuals, partnerships, corporations and other legal entities, as well as their agents and representatives, could now discriminate with respect to their residential real property, which is defined as any interest in real property of any kind or quality, “irrespective of how obtained or financed,” and seemingly irrespective of the relationship of the State to such interests in real property. Only the State is excluded with respect to property owned by it.

This Court has never attempted the “impossible task” of formulating an infallible test for determining whether the State “in any of its manifestations” has become significantly involved in private discriminations. “Only by sifting facts and weighing circumstances” on a case-by-case basis can a “nonobvious involvement of the State in private conduct be attributed its true significance.” Burton v. Wilmington Parking Authority, 365 U. S. 715, 722. Here the California court, armed as it was with the knowledge of the facts and circumstances concerning the passage and potential impact of § 26, and familiar with the milieu in which that provision would operate, has determined that the provision would involve the State in private racial discriminations to an unconstitutional degree. We accept this holding of the California court.

The assessment of § 26 by the California court is similar to what this Court has done in appraising state statutes or other official actions in other contexts. In McCabe v. Atchison, Topeka & Santa Fe R. Co., 235 U. S. 151, the Court dealt with a statute which, as construed by the Court, authorized carriers to provide cars for white persons but not for Negroes. Though dismissal of the complaint on a procedural ground was affirmed, the Court made it clear that such a statute was invalid under the Fourteenth Amendment because a carrier refusing equal service to Negroes would be “acting in the matter under the authority of a state law.” This was nothing less than considering a permissive state statute as an authorization to discriminate and as sufficient state action to violate the Fourteenth Amendment in the context of that case. Similarly, in Nixon v. Condon, 286 U. S. 73, the Court was faced with a statute empowering the executive committee of a political party to prescribe the qualifications of its members for voting or for other participation, but containing no directions with respect to the exercise of that power. This was authority which the committee otherwise might not have had and which was used by the committee to bar Negroes from voting in primary elections. Reposing this power in the executive committee was said to insinuate the State into the self-regulatory, decision-making scheme of the voluntary association; the exercise of the power was viewed as an expression of state authority contrary to the Fourteenth Amendment.

In Burton v. Wilmington Parking Authority, 365 U. S. 715, the operator-lessee of a restaurant located in a building owned by the State and otherwise operated for public purposes, refused service to Negroes. Although the State neither commanded nor expressly authorized or encouraged the discriminations, the State had “elected to place its power, property and prestige behind the admitted discrimination” and by “its inaction . . . has . . . made itself a party to the refusal of service . . which therefore could not be considered the purely private choice of the restaurant operator.

In Peterson v. City of Greenville, 373 U. S. 244, and in Robinson v. Florida, 378 U. S. 153, the Court dealt with state statutes or regulations requiring, at least in some respects, segregation in facilities and services in restaurants. These official provisions, although obviously unconstitutional and unenforceable, were deemed in themselves sufficient to disentitle the State to punish, as trespassers, Negroes who had been refused service in the restaurants. In neither case was any proof required that the restaurant owner had actually been influenced by the state statute or regulation. Finally, in Lombard v. Louisiana, 373 U. S. 267, the Court interpreted public statements by New Orleans city officials as announcing that the city would not permit Negroes to seek desegregated service in restaurants. Because the statements were deemed to have as much coercive potential as the ordinance in the Peterscm case, the Court treated the city as though it had actually adopted an ordinance forbidding desegregated service in public restaurants.

None of these cases squarely controls the case we now have before us. But they do illustrate the range of situations in which discriminatory state action has been identified. They do exemplify the necessity for a court to assess the potential impact of official action in determining whether the State has significantly involved itself with invidious discriminations. Here we are dealing with a provision which does not just repeal an existing law forbidding private racial discriminations. Section 26 was intended to authorize, and does authorize, racial discrimination in the housing market. The right to discriminate is now one of the basic policies of the State. The California Supreme Court believes that the section will significantly encourage and involve the State in private discriminations. We have been presented with no persuasive considerations indicating that these judgments should be overturned.

Affirmed.

Mr. Justice Douglas,

concurring.

While I join the opinion of the Court, I add a word to indicate the dimensions of our problem.

This is not a case as simple as the one where a man with a bicycle or a car or a stock certificate or even a log cabin asserts the right to sell it to whomsoever he pleases, excluding all others whether they be Negro, Chinese, Japanese, Russians, Catholics, Baptists, or those with blue eyes. We deal here with a problem in the realm of zoning, similar to the one we had in Shelley v. Kraemer, 334 U. S. 1, where we struck down restrictive covenants.

Those covenants are one device whereby a neighborhood is kept “white” or “Caucasian” as the dominant interests desire. Proposition 14 in the setting' of our modern housing problem is only another device of the same character.

Real estate brokers and mortgage lenders are largely dedicated to the maintenance of segregated communities. Realtors commonly believe it is unethical to sell or rent to a Negro in a predominantly white or all-white neighborhood, and mortgage lenders throw their weight alongside segregated communities, rejecting applications by members of a minority group who try to break the white phalanx save and unless the neighborhood is in process of conversion into a mixed or a Negro community. We are told by the Commission on Civil Rights:

“Property owners’ prejudices are reflected, magnified, and sometimes even induced by real estate brokers, through whom most housing changes hands. Organized brokers have, with few exceptions, followed the principle that only a ‘homogeneous’ neighborhood assures economic soundness. Their views in some cases are so vigorously expressed as to discourage property owners who would otherwise be concerned only with the color of a purchaser’s money, and not with that of his skin. . . .[]
“The financial community, upon which mortgage financing — and hence the bulk of home purchasing and home building — depends, also acts to a large extent on the premise that only a homogeneous neighborhood can offer an economically sound investment. For this reason, plus the fear of offending their other clients, many mortgage-lending institutions refuse to provide home financing for houses in a ‘mixed’ neighborhood. The persistent stereotypes of certain minority groups as poor credit risks also block the flow of credit, although these stereotypes have often been proved unjustified.” Housing, U. S. Commission on Civil Rights 2-3 (1961).

The builders join in the same scheme:

. . private builders often adopt what they believe are the views of those to whom they expect to sell and of the banks upon whose credit their own operations depend. In short, as the Commission on Race and Housing has concluded, ‘it is the real estate brokers, builders, and mortgage finance institutions, which translate prejudice into discriminatory action.’ Thus, at every level of the private housing market members of minority groups meet mutually reinforcing and often unbreakable barriers of rejection.”

Proposition 14 is a form of sophisticated discrimination whereby the people of California harness the energies of private groups to do indirectly what they cannot under our decisions allow their government to do.

George A. McCanse, chairman of the legislative committee of the Texas Real Estate Association, while giving his views on Title IV of the proposed Civil Rights Act of 1966 (H. R. 14765), which would prohibit discrimination in housing by property owners, real estate brokers, and others engaged in the sale, rental or financing of housing, stated that he warned groups to which he spoke of “the grave dangers inherent in any type of legislation that would erode away the rights that go with the ownership of property.” He pointed out that

“[E]ach time we citizens of this country lose any of the rights that go with the ownership of property, we are moving that much closer to a centralized government in which ultimately the right to own property would be denied.”

That apparently is a common view. It overlooks several things. First, the right to own or lease property is already denied to many solely because of the pigment of their skin; they are, indeed, under the control of a few who determine where and how the colored people shall live and what the nature of our cities will be. Second, the agencies that are zoning the cities along racial lines are state licensees.

Zoning is a state and municipal function. See Euclid v. Ambler Co., 272 U. S. 365, 389 et seq.; Berman v. Parker, 348 U. S. 26, 34-35. When the State leaves that function to private agencies or institutions which are licensees and which practice racial discrimination and zone our cities into white and black belts or white and black ghettoes, it suffers a governmental function to be performed under private auspices in a way the State itself may not act. The present case is therefore kin to Terry v. Adams, 345 U. S. 461, 466, where a State allowed a private group (known as the Jaybird Association, which was the dominant political group in county elections) to perform an electoral function in derogation of the rights of Negroes under the Fifteenth Amendment.

Leaving the zoning function to groups which practice racial discrimination and are licensed by the States constitutes state action in the narrowest sense in which Shelley v. Kraemer, supra, can be construed. For as noted by Mr. Justice Black in Bell v. Maryland, 378 U. S. 226, 329 (dissenting), restrictive covenants “constituted a restraint on alienation of property, sometimes in perpetuity, which, if valid, was in reality the equivalent of and had the effect of state and municipal zoning laws, accomplishing the same kind of racial discrimination as if the State had passed a statute instead of leaving this objective to be accomplished by a system of private contracts, enforced by the State.”

Under California law no person may “engage in the business, act in the capacity of, advertise or assume to act as a real estate broker or a real estate salesman within this State without first obtaining a real estate license.” Calif. Bus. & Prof. Code § 10130. These licensees are designated to serve the public. Their licenses are not restricted, and could not be restricted, to effectuate a policy of segregation. That would be state action that is barred by the Fourteenth Amendment. There is no difference, as I see it, between a State authorizing a licensee to practice racial discrimination and a State, without any express authorization of that kind nevertheless launching and countenancing the operation of a licensing system in an environment where the whole weight of the system is on the side of discrimination. In the latter situation the State is impliedly sanctioning what it may not do specifically.

If we were in a domain exclusively private, we would have different problems. But urban housing is in the public domain as evidenced not only by the zoning problems presented but by the vast schemes of public financing with which the States and the Nation have been extensively involved in recent years. Urban housing is clearly marked with the public interest. Urban housing, like restaurants, inns, and carriers (Bell v. Maryland, 378 U. S. 226, 253-255, separate opinion), or like telephone companies, drugstores, or hospitals, is affected with a public interest in the historic and classical sense. See Lombard v. Louisiana, 373 U. S. 267, 275-278 (concurring opinion).

I repeat what was stated by Holt, C. J., in Lane v. Cotton, 12 Mod. 472, 484 (1701):

“[W] her ever any subject takes upon himself a public trust for the benefit of the rest of his fellow-subjects, he is eo ipso bound to serve the subject in all the things that are within the reach and comprehension of such an office, under pain of an action against him .... If on the road a shoe fall off my horse, and I come to a smith to have one put on, and the smith refuse to do it, an action will lie against him, because he has made profession of a trade which is for the public good, and has thereby exposed and vested an interest of himself in all the King’s subjects that will employ him in the way of his trade. If an innkeeper refuse to entertain a guest where his house is not full, an action will lie against him, and so against a carrier, if his horses be not loaded, and he refuse to take a packet proper to Be sent by a carrier.”

Since the real estate brokerage business is one that can be and is state-regulated and since it is state-licensed, it must be dedicated, like the telephone companies and the carriers and the hotels and motels, to the requirements of service to all without discrimination — a standard that in its modern setting is conditioned by the demands of the Equal Protection Clause of the Fourteenth Amendment.

And to those who say that Proposition 14 represents the will of the people of California, one can only reply:

“Wherever the real power in a Government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the Constituents. This is a truth of great importance, but not yet sufficiently attended to . . . 5 Writings of James Madison 272 (Hunt ed. 1904).

Mr. Justice Harlan,

whom Mr. Justice Black, Mr. Justice Clark, and Mr. Justice Stewart join, dissenting.

I consider that this decision, which cuts deeply into state political processes, is supported neither by anything “found” by the Supreme Court of California nor by any of our past cases decided under the Fourteenth Amendment. In my view today’s holding, salutary as its result may appear at first blush, may in the long run actually serve to handicap progress in the extremely difficult field of racial concerns. I must respectfully dissent.

The facts of this case are simple and undisputed. The legislature of the State of California has in the last decade enacted a number of statutes restricting the right of private landowners to discriminate on the basis of such factors as race in the sale or rental of property. These laws aroused considerable opposition, causing certain groups to organize themselves and to take advantage of procedures embodied in the California Constitution permitting a “proposition” to be presented to the voters for a constitutional amendment. “Proposition 14” was thus put before the electorate in the 1964 election and was adopted by a vote of 4,526,460 to 2,395,747. The Amendment, Art. I, § 26, of the State Constitution, reads in relevant part as follows:

“Neither the State nor any subdivision or agency thereof shall deny, limit or abridge, directly or indirectly, the right of any person, who is willing or desires to sell, lease or rent any part or all of his real property, to decline to sell, lease or rent such property to such person or persons as he, in his absolute discretion, chooses.”

I am wholly at a loss to understand how this straightforward effectuation of a change in the California Constitution can be deemed a violation of the Fourteenth Amendment, thus rendering § 26 void and petitioners’ refusal to rent their properties to respondents, because of their race, illegal under prior state law. The Equal Protection Clause of the Fourteenth Amendment, which forbids a State to use its authority to foster discrimination based on such factors as race, Takahashi v. Fish & Game Comm’n, 334 U. S. 410; Brown v. Board of Education, 347 U. S. 483; Goss v. Board of Education, 373 U. S. 683, does not undertake to control purely personal prejudices and predilections, and individuals acting on their own are left free to discriminate on racial grounds if they are so minded, Civil Rights Cases, 109 U. S. 3. By the same token, the Fourteenth Amendment does not require of States the passage of laws preventing such private discrimination, although it does not of course disable them from enacting such legislation if they wish.

In the case at hand California, acting through the initiative and referendum, has decided to remain “neutral” in the realm of private discrimination affecting the sale or rental of private residential property; in such transactions private owners are now free to act in a discriminatory manner previously forbidden to them. In short, all that has happened is that California has effected a ;pro tanto repeal of its prior statutes forbidding private discrimination. This runs no more afoul of the Fourteenth Amendment than would have California’s failure to pass any such antidiscrimination statutes in the first instance. The fact that such repeal was also accompanied by a constitutional prohibition against future enactment of such laws by the California Legislature cannot well be thought to affect, from a federal constitutional standpoint, the validity of what California has done. The Fourteenth Amendment does not reach such state constitutional action any more than it does a simple legislative repeal of legislation forbidding private discrimination.

I do not think the Court’s opinion really denies any of these fundamental constitutional propositions. Rather it attempts to escape them by resorting to arguments which appear to me to be entirely ill-founded.

I.

The Court attempts to fit § 26 within the coverage of the Equal Protection Clause by characterizing it as in effect an affirmative call to residents of California to discriminate. The main difficulty with this viewpoint is that it depends upon a characterization of § 26 that cannot fairly be made. The provision is neutral on its face, and it is only by in effect asserting that this requirement of passive official neutrality is camouflage that the Court is able to reach its conclusion. In depicting the provision as tantamount to active state encouragement of discrimination the Court essentially relies on the fact that the California Supreme Court so concluded. It is said that the findings of the highest court of California as to the meaning and impact of the enactment are entitled to great weight. I agree of course, that findings of fact by a state court should be given great weight, but this familiar proposition hardly aids the Court’s holding in this case.

There is no disagreement whatever but that § 26 was meant to nullify California’s fair-housing legislation and thus to remove from private residential property transactions the state-created impediment upon freedom of choice. There were no disputed issues of fact at all, and indeed the California Supreme Court noted at the outset of its opinion that “[i]n the trial court proceedings allegations of the complaint were not factually challenged, no evidence was introduced, and the only matter placed in issue was the legal sufficiency of the allegations.” 64 Cal. 2d 529, 531-532, 413 P. 2d 825, 827. There was no finding, for example, that the defendants’ actions were anything but the product of their own private choice. Indeed, since the alleged racial discrimination that forms the basis for the Reitman refusal to rent on racial grounds occurred in 1963, it is not possible to contend that § 26 in any way influenced this particular act. There were no findings as to the general effect of § 26. The Court declares that the California court “held the intent of § 26 was to authorize private racial dis-criminations in the housing market . . . ,” ante, p. 376, but there is no supporting fact in the record for this characterization. Moreover, the grounds which prompt legislators or state voters to repeal a law do not determine its constitutional validity. That question is decided by what the law does, not by what those who voted for it wanted it to do, and it must not be forgotten that the Fourteenth Amendment does not compel a State to put or keep any particular law about race on its books. The Amendment only forbids a State to pass or keep in effect laws discriminating on account of race. California has not done this.

A state enactment, particularly one that is simply permissive of private decision-making rather than coercive and one that has been adopted in this most democratic of processes, should not be struck down by the judiciary under the Equal Protection Clause without persuasive evidence of an invidious purpose or effect. The only “factual” matter relied on by the majority of the California Supreme Court was the context in which Proposition 14 was adopted, namely, that several strong antidiscrimination acts had been passed by the legislature and opposed by many of those who successfully led the movement for adoption of Proposition 14 by popular referendum. These circumstances, and these alone, the California court held, made § 26 unlawful under this Court’s cases interpreting the Equal Protection Clause. This, of course, is nothing but a legal conclusion as to federal constitutional law, the California Supreme Court not having relied in any way upon the State Constitution. Accepting all the suppositions under which the state court acted, I cannot see that its conclusion is entitled to any special weight in the discharge of our own responsibilities. Put in another way, I cannot transform the California court’s conclusion of law into a finding of fact that the State through the adoption of § 26 is actively promoting racial discrimination. It seems to me manifest that the state court decision rested entirely on what that court conceived to be the compulsion of the Fourteenth Amendment, not on any fact-finding by the state courts.

II.

There is no question that the adoption of § 26, repealing the former state antidiscrimination laws and prohibiting the enactment of such state laws in the future, constituted “state action” within the meaning of the Fourteenth Amendment. The only issue is whether this provision impermissibly deprives any person of equal protection of the laws. As a starting point, it is clear that any statute requiring unjustified discriminatory treatment is unconstitutional. E. g., Nixon v. Herndon, 273 U. S. 536; Brown v. Board of Education, supra; Peterson v. City of Greenville, 373 U. S. 244. And it is no less clear that the Equal Protection Clause bars as well discriminatory governmental administration of a statute fair on its face. E. g., Yick Wo v. Hopkins, 118 U. S. 356. This case fits within neither of these two categories: Section 26 is by its terms inoffensive, and its provisions require no affirmative governmental enforcement of any sort. A third category of equal-protection cases, concededly more difficult to characterize, stands for the proposition that when governmental involvement in private discrimination reaches a level at which the State can be held responsible for the specific act of private discrimination, the strictures of the Fourteenth Amendment come into play. In dealing with this class of cases, the inquiry has been framed as whether the State has become “a joint participant in the challenged activity, which, on that account, cannot be considered to have been so ‘purely private’ as to fall without the scope of the Fourteenth Amendment.” Burton v. Wilmington Parking Authority, 365 U. S. 715, 725.

Given these latter contours of the equal-protection doctrine, the assessment of particular cases is often troublesome, as the Court itself acknowledges. Ante, pp. 378-379. However, the present case does not seem to me even to approach those peripheral situations in which the question of state involvement gives rise to difficulties. See, e. g., Evans v. Newton, 382 U. S. 296; Lombard v. Louisiana, 373 U. S. 267. The core of the Court’s opinion is that § 26 is offensive to the Fourteenth Amendment because it effectively encourages private discrimination. By focusing on “encouragement” the Court, I fear, is forging a slippery and unfortunate criterion by which to measure the constitutionality of a statute simply permissive in purpose and effect, and inoffensive on its face.

It is true that standards in this area have not been definitely formulated, and that acts of discrimination have been included within the compass of the Equal Protection Clause not merely when they were compelled by a state statute or other governmental pressures, but also when they were said to be “induced” or “authorized” by the State. Most of these cases, however, can be approached in terms of the impact and extent of affirmative state governmental activities, e. g., the action of a sheriff, Lombard v. Louisiana, supra; the official supervision over a park, Evans v. Newton, supra; a joint venture with a lessee in a municipally owned building, Burton v. Wilmington Parking Authority, supra. In situations such as these the focus has been on positive state cooperation or partnership in affirmatively promoted activities, an involvement that could have been avoided. Here, in contrast, we have only the straightforward adoption of a neutral provision restoring to the sphere of free choice, left untouched by the Fourteenth Amendment, private behavior within a limited area of the racial problem. The denial of equal protection emerges only from the conclusion reached by the Court that the implementation of a new policy of governmental neutrality, embodied in a constitutional provision and replacing a former policy of antidiscrimination, has the effect of lending encouragement to those who wish to discriminate. In the context of the actual facts of the case, this conclusion appears to me to state only a truism: people who want to discriminate but were previously forbidden to do so by state law are now left free because the State has chosen to have no law on the subject at all. Obviously whenever there is a change in the law it will have resulted from the concerted activity of those who desire the change, and its enactment will allow those supporting the legislation to pursue their private goals.

A moment of thought will reveal the far-reaching possibilities of the Court’s new doctrine, which I am sure the Court does not intend. Every act of private discrimination is either forbidden by state law or permitted by it. There can be little doubt that such permissiveness — whether by express constitutional or statutory provision, or implicit in the common law — to some extent “encourages” those who wish to discriminate to do so. Under this theory “state action” in the form of laws that do nothing more than passively permit private discrimination could be said to tinge all private discrimination with the taint of unconstitutional state encouragement.

This type of alleged state involvement, simply evincing a refusal to involve itself at all, is of course very different from that illustrated in such cases as Lombard, Peterson, Evans, and Burton, supra, where the Court found active involvement of state agencies and officials in specific acts of discrimination. It is also .quite different from cases in which a state enactment could be said to have the obvious purpose of fostering discrimination. Anderson v. Martin, 375 U. S. 399. I believe the state action required to bring the Fourteenth Amendment into operation must be affirmative and purposeful, actively fostering discrimination. Only in such a case is ostensibly “private” action more properly labeled “official.” I do not believe that the mere enactment of § 26, on the showing made here, falls within this class of cases.

III.

I think that this decision is not only constitutionally unsound, but in its practical potentialities short-sighted. Opponents of state antidiscrimination statutes are now in a position to argue that such legislation should be defeated because, if enacted, it may be unrepealable. More fundamentally, the doctrine underlying this decision may hamper, if not preclude, attempts to deal with the delicate and troublesome problems of race relations through the legislative process. The lines that have been and must be drawn in this area, fraught as it is with human sensibilities and frailties of whatever race or creed, are difficult ones. The drawing of them requires understanding, patience, and compromise, and is best done by legislatures rather than by courts. When legislation in this field is unsuccessful there should be wide opportunities for legislative amendment, as well as for change through such processes as the popular initiative and referendum. This decision, I fear, may inhibit such flexibility. Here the electorate itself overwhelmingly wished to overrule and check its own legislature on a matter left open by the Federal Constitution. By refusing to accept the decision of the people of California, and by contriving a new and ill-defined constitutional concept to allow federal judicial interference, I think the Court has taken to itself powers and responsibilities left elsewhere by the Constitution.

I believe the Supreme Court of California misapplied the Fourteenth Amendment, and would reverse its judgments, and remand the case for further appropriate proceedings.

       Section 1 of the Fourteenth Amendment provides as follows:
      “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

       The following is the full text of § 26: “Neither the State nor any subdivision or agency thereof shall deny, limit or abridge, directly or indirectly, the right of any person, who is willing or desires to sell, lease or rent any part or all of his real property, to decline to sell, lease or rent such property to such person or persons as he, in his absolute discretion, chooses.
      “ ‘Person’ includes individuals, partnerships, corporations and other legal entities and their agents or representatives but does not include the State or any subdivision thereof with respect to the sale, lease or rental of property owned by it.
      “ ‘Real property’ consists of any interest in real property of any kind or quality, present or future, irrespective of how obtained or financed, which is used, designed, constructed, zoned or otherwise devoted to or limited for residential purposes whether as a single family dwelling or as a dwelling for two or more persons or families living together or independently of each other.
      “This Article shall not apply to the obtaining of property by eminent domain pursuant to Article I, Sections 14 and 14% of this Constitution, nor to the renting or providing of any accommodations for lodging purposes by a hotel, motel or other similar public place engaged in furnishing lodging to transient guests.
      “If any part or provision of this Article, or the application thereof to any person or circumstance, is held invalid, the remainder of the Article, including the application of such part or provision to other persons or circumstances, shall not be affected thereby and shall continue in full force and effect. To.this end the provisions of this Article are severable.” (Cal. Const., Art. I, § 26.)

       Cal. Civ. Code §§ 51 and 52 provide in part as follows:
      “All persons within the jurisdiction of this State are free and equal, and no matter what their race, color, religion, ancestry, or national origin are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.
      “Whoever denies, or who aids, or incites such denial, or whoever makes any discrimination, distinction or restriction on account of color, race, religion, ancestry, or national origin, contrary to the provisions of Section 51 of this code, is liable for each and every such offense for the actual damages, and two hundred fifty dollars ($250) in addition thereto, suffered by any person denied the rights provided in Section 51 of this code.”

       The trial court considered the case to be controlled by Abstract Investment Co. v. Hutchinson, 204 Cal. App. 2d 242, 22 Cal. Rptr. 309, which in turn placed major reliance on Shelley v. Kraemer, 334 U. S. 1, and Barrows v. Jackson, 346 U. S. 249.

       Respondents’ complaint was dismissed without prejudice based on the trial court’s finding that petitioner would not seek eviction without the declaratory relief he had requested.

       See n. 3, supra.

       In addition to the ease we now have before us, two other cases decided the same day by the California Supreme Court are instructive concerning the range and impact of Art. I, § 26, of the California Constitution. In Hill v. Miller, 413 P. 2d 852, on rehearing, 64 Cal. 2d 757, 415 P. 2d 33, a Negro tenant sued to restrain an eviction from a leased, single-family dwelling. The notice to quit served by the owner had expressly recited: “The sole reason for this notice is that I have elected to exercise the right conferred upon me by Article I Section 26, California Constitution, to rent said premises to members of the Caucasian race.” Although the California court had invalidated § 26, the court ruled against the Negro plaintiff because the Unruh Act did not cover single-family dwellings. Thus the landlord’s reliance on § 26 was superfluous.
      In Peyton v. Barrington Plaza Corp., 64 Cal. 2d 880, 413 P. 2d 849, a Negro physician sued to require the defendant corporation to lease him an apartment in Barrington Plaza which was described in the opinion as follows:
      “that defendant received a $17,000,000, low interest rate loan under the National Housing Act to construct Barrington Plaza; that such sum represents 90 percent of the construction costs of the plaza; that the development is a part of the urban redevelopment program undertaken by the City of Los Angeles; that Barrington Plaza is the largest apartment development in the western United States, providing apartment living for 2,500 people; that it includes many retail shops and professional services within its self-contained facilities; that it provides a fall-out shelter, completely stocked by the federal government with emergency supplies; that the plaza replaced private homes of both Caucasians and non-Caucasians; that the city effected zoning changes to accommodate the development; that the defendant’s securities were sold, its construction contracts were let, its building permits were issued and its shops and professional services established all pursuant to state or local approval, cooperation and authority.”
      The defendant defended the action and moved for judgment on the pleadings based on Art. I, § 26, of the California Constitution. The motion was granted but the judgment was reversed based on the decision in Mulkey v. Reitman.

       This ease was a sequel to Nixon v. Herndon, 273 U. S. 536, which outlawed statutory disqualification of Negroes from voting in primary elections.

       Civil Rights U. S. A., Housing in Washington, D. C., U. S. Commission on Civil Rights 12-15 (1962).

         Id., 12-13.

         Id., 14-15.

         As the Hannah Commission said:
      “Area housing patterns are sharply defined along racial lines. Most members of the housing industry appear to respect them. Although it is unlikely that these patterns are determined by formal agreement, it is probable that they are maintained by tacit understandings.” Id., 15.

       Housing, U. S. Commission on Civil Rights 3 (1961).

       Freedom to the Free, Century of Emancipation, Report to the President, U. S. Commission on Civil Rights 96 (1963).

        City of Richmond v. Deans, 281 U. S. 704.

       Hearings before Subcommittee No. 5 of the House Committee on the Judiciary, 89th Cong., 2d Sess., ser. 16, 1639 (1966).

        Ibid.

       “Real Property” is defined by § 26 as “any interest in real property of any kind or quality, present or future, irrespective of how obtained or financed, which is used, designed, constructed, zoned or otherwise devoted to or limited for residential purposes whether as a single family dwelling or as a dwelling for two or more persons or families living together or independently of each other.”

       In McCabe v. Atchison, Topeka & Santa Fe R. Co., 235 U. S. 151, cited by the Court, the complaint of the Negro appellants was held to have been properly dismissed on the ground that its allegations were “altogether too vague and indefinite,” id., at 163. In dictum the Court stated that where a State regulated the facilities of a common carrier it could not constitutionally enact a statute that did not comply with the “separate but equal” doctrine. Whatever the implications of the Fourteenth Amendment may be as to common carriers, compare the opinions of Goldberg, J., concurring, and Black, J., dissenting, in Bell v. Maryland, 378 U. S. 226, 286, 318, nothing in McCabe would appear to have much relevance to the problem before us today.
      Neither is there force in the Court’s reliance on Nixon v. Condon, 286 U. S. 73, a voting case decided under the Fifteenth as well as the Fourteenth Amendment.


author: Mr. Justice Fortas

text:
    AMERICAN TRUCKING ASSOCIATIONS, INC., et al. v. ATCHISON, TOPEKA & SANTA FE RAILWAY CO. et al.
    No. 57.
    Argued April 13 and 17, 1967.
    Decided May 29, 1967

      Richard R. Sigmon argued the cause for appellants in Nos. 57 and 59. With him on the brief were Peter T. Beardsley, Harry J. Jordan, R. Edwin Brady, Albert B. Rosenbaum, Bryce Rea, Jr., James E. Wilson, Guy H. Postell, Ferdinand Born, LeGrand A. Carlston, F. H. Lynch, Jr., George S. Dixon, Roland Rice, Homer S. Carpenter and John S. Fessenden. Robert W. Ginnane argued the cause for the United States et al. in No. 60. With him on the brief were Solicitor General Marshall, Assistant Attorney General Turner, Richard A. Posner, Howard E. Shapiro and Fritz R. Kahn.

      Thormund A. Miller argued the cause for the Western and Southeastern Railroad appellees. With him on the brief were Amos M. Mathews, J. D. Feeney, Robert F. Munsell and James W. Hoeland. Francis M. Shea argued the cause for appellees Southern Railway Co. et al. With him on the brief were William H. Dempsey, Jr., Walter J. Myskowski, W. Graham Claytor, Jr., and James A. Bist-line. Paul R. Duke argued the cause for the Eastern Railroad appellees. With him on the brief were Kemper A. Dobbins and Eugene E. Hunt. D. Robert Thomas argued the cause for the Freight Forwarder appellees. With him on the brief was Giles Morrow.

      Together with No. 59, National Automobile Transporters Association of Detroit v. Atchison, Topeka & Santa Fe Railway Co. et al., and No. 60, United States et al. v. Atchison, Topeka & Santa Fe Railway Co. et al., also on appeal from the same court.

   Mr. Justice Fortas

delivered the opinion of the Court.

These three cases present the following question: Does the Interstate Commerce Commission have authority to promulgate rules providing (1) that railroads which offer trailer-on-flatcar (TOFC or “piggyback”) service to the public under open-tariff publications must make such service available on the same terms to motor and water common and contract carriers, and (2) that motor and water carriers may, subject to certain conditions, utilize TOFC facilities in the performance of their authorized service? Ex parte 230, Substituted Service — Charges and Practices of For-Hire Carriers and Freight Forwarders (.Piggyback Service), 322 I. C. C. 301 (1964).

A three-judge district court, convened under 28 U. S. C. §§ 1336, 2284, 2321-2325, at the request of various railroads and freight forwarders, set aside the rules which the ICC had promulgated in a rulemaking proceeding initiated on its own motion. 244 F. Supp. 955 (D. C. N. D. Ill. 1965). The case is here on direct appeal. 28 U. S. C. §§ 1253 and 2101 (b). 384 U. S. 902 (1966).

The appellees are the railroads and freight forwarders who initiated the District Court proceeding. The appellants are the United States and the ICC (No. 60), together with the American Trucking Associations, Inc., et al. (No. 57), and the National Automobile Transporters Association (No. 59), which intervened below as defendants.

More specifically, the issue presented is the validity of Rules 2 and 3, promulgated by the Commission in Ex parte 230, supra. 49 CFR §§ 500.2 and 500.3 (Supp. 1967). Rule 2 provides that “TOFC service, if offered by a rail carrier through its open-tariff publications, shall be made available” at the same charge to all other persons. In substance, it is a paraphrase of § 2 of the Interstate Commerce Act, 24 Stat. 379, as amended, 49 U. S. C. § 2 (hereinafter cited only to U. S. C.). Rule 3 provides that, with certain qualifications and subject to certain conditions, “motor common and contract carriers, water common and contract carriers, and freight forwarders may utilize TOFC service in the performance of all or any portion of their authorized service through the use of open-tariff TOFC rates published by a rail carrier.” The District Court held that the Commission has no authority to compel railroads to make open-tariff TOFC service available to such carriers, and that such carriers may not be authorized to use TOFC except if and as the railroad consents.

The background of the controversy may be briefly described. The growth of trailer-on-flatcar service has been “explosive” since the latter half of the 1950’s. From the time of passage in 1935 of Part II of the Act regulating motor carriers, until the institution of the present proceeding, the Commission appears to have regarded trailer-on-flatcar service not as bimodal, but as an adjunct of transportation by railroad — as a facility essentially of, by and for the railroads. This attitude is summed up by the ICC’s definition of TOFC in 1954 in Movement of Highway Trailers by Rail, 293 I. C. C. 93 (the so-called New Haven case), which provided the basic legal framework upon which the development of TOFC traffic has been based. In that case, the Commission described TOFC or piggyback service as transportation of “a freight-laden trailer secured to a flatcar, which in turn is coupled in a train being drawn by a locomotive over steel rails laid on the railroad’s right-of-way . . . Id., at 100-101.

Even prior to the New Haven case, beginning in 1939, in Substituted Freight Service, 232 I. C. C. 683, it was the Commission’s position that a railroad could grant or deny TOFC service to common carriers by motor. Even if the railroad offered such service generally to the public, it could withhold it from for-hire motor carriers. Except for limited uses of rail open tariffs permitted by certain railroads, contract and common carriers by motor participated in piggyback service only by agreement, including through route-joint rate arrangements between a railroad and a trucker (see Plan V, infra), and railroad acceptance of trailers or containers of truckers, the shipment moving under motor carrier tariffs and the railroad’s compensation being based upon a division of charges arrived at through negotiations between the carriers (Plan I, infra). These arrangements had to be voluntary for it has. been the prevailing view that the railroads, as common carriers, had no duty to service truckers under their open tariffs, and, although § 216 (c), 49 U. S. C. § 316 (c), authorizes motor common carriers to establish through routes and joint rates with rail common carriers, the Commission had no power to compel such joint arrangements.

According to the Commission, five basic forms of piggyback service evolved (322 I. C. C., at 304-305, 309-312). They are:

Plan I (Joint Intermodal):

Railroad movement of trailers or containers of motor common carriers, with the shipment moving on one bill of lading and billing being done by the trucker. Traffic moves under rates in regular motor carrier tariffs, and the railroad’s compensation is arrived at by negotiation between the two carriers.

Plan II (All-Rail):

Door-to-door service performed by the railroad, which moves its own trailers or containers on flatcars under open tariffs usually similar to those of truckers.

Plan III (All-Rail):

Ramp-to-ramp rates to private shippers and freight forwarders, based on a flat open-tariff charge, regardless of the contents of trailers or containers, which are usually owned or leased by freight forwarders or shippers. No pick-up or delivery is performed by the railroad.

Plan IV (All-Rail):

Flat open-tariff charge for loaded- or empty-car movement, the railroad furnishing only power and rails. Shipper or forwarder furnishes a trailer or container-loaded flatcar, either owned or leased.

Plan V (Joint Intermodal):

Joint railroad-truck or other combination of coordinated service rates. Either mode may solicit traffic for through movement, and traffic moves on originating carrier’s bill of lading.

While data are not available precisely to define the growth of traffic under the various plans, the evidence indicates that major growth has been primarily in the all-rail, open-tariff plans — that is, plans under which traffic moves at rail rates and on rail billings. The Commission’s summary of responses to piggyback questionnaires, contained in the Record, shows that virtually all of the reporting railroads participate in Plans II and III and about three-fourths participate in Plan IV. However, only “somewhat more than half” of the reporting railroads participate in trucker-rail arrangements under either Plan I or V, and traffic in Plan V (joint railroad-truck rates-through routes) “generally is extremely limited.” A number of the largest railroads do not offer to move trailers or containers for motor carriers on motor carrier bills of lading and billing under regular motor carrier tariffs (Plan I), or offer it only for limited types of traffic such as automobiles, or only to their own subsidiaries. Over 80% of rail movement of motor carrier-rail piggyback is under Plan I. ICC Bur. of Econ., Piggyback Traffic Characteristics 21 (1966).

Faced with the explosive growth of piggyback service on the basis of principles which had evolved in the infancy of the development of piggyback, the Commission by notice dated June 29, 1962, commenced this proceeding which was its “first general investigation of what is probably the most significant recent development in transportation — trailer-on-flatcar or piggyback service.” 322 I. C. C., at 303. Proposed rules were furnished to participants, opportunity was given to all of them to file statements, and an examiners’ report was filed. After exceptions and oral argument, the Commission rendered its decision on March 16, 1964. The Commission stated that “It is our purpose and our hope to encourage the growth of this transportation phenomenon.” 322 I. C. C., at 322. The rules which it prescribed incorporate the basic principles here at issue: that “when TOFC service is offered by a rail carrier to the public generally,” it should likewise be available to motor or water common or contract carriers, in lieu of their authorized transportation between service points, or to for-hire carriers. Id., at 336. These rules also include ancillary or implementing provisions which are not here at issue; for example, it is provided that the motor carrier must give notice in its tariff publication if TOFC is to be used, and the user of the water or motor carrier may specify “that in any particular instance TOFC service not be utilized” (49 CFR §§500.3 (b), (c), (d) (Supp. 1967)); and that these carriers may tender and receive traffic, TOFC, only at points that they are authorized to serve. Id., § 500.3 (e).

The three-judge District Court concluded that Rules 2 and 3 (and Rule 5, id., § 500.5, insofar as it amplified those Rules) exceeded the Commission’s authority and set them aside. In substance it held that the Interstate Commerce Act did not forbid a railroad to refuse to carry the trailers or containers of a competing mode of carrier; that the structure and plan of the Act, as well as the specific absence of compulsory power to the Commission in § 216 (c), which authorizes voluntary joint rates and through routes by motor and rail carriers, indicated that the ICC is not at liberty to require the railroads to provide TOFC service to competing modes; that provisions of the Act regulating freight forwarders impelled the same conclusions; and that the Commission’s long history of support for the position which its rules now repudiate, as well as legislative history, compelled rejection of the rules now promulgated. We disagree.

I.

We first consider Rule 2, which raises the question whether the Commission may by rule require that if a railroad offers TOFC service to the public through its open-tariff publications, it must make that service available to “any person” without discrimination. We begin by noting the obvious fact that the Interstate Commerce Act codified the common-law obligations of railroads as common carriers. From the earliest days, common carriers have had a duty to carry all goods offered for transportation. See, e. g., New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 How. 344, 382-383 (1848). Refusal to carry the goods of some shippers was unlawful. Rates were required to be reasonable, but discrimination in the form of unequal rates as among shippers was not forbidden. In England, legislation to proscribe unequal rates, from which the antidiscrimination language of § 2 of the Interstate Commerce Act derives (ICC v. Delaware, L. & W. R. Co., 220 U. S. 235, 253 (1911)), was enacted in 1845. The Railway Clauses Consolidation Act of 1845, 8 & 9 Vict., c. 20, § LXXXVI et seq. In this country, the railroads had a practical monopoly of freight transportation, and secret rebates,special rates to favored shippers, and discriminations flourished. It was this situation that led to enactment of the Interstate Commerce Act in 1887. 1 Sharfman, The Interstate Commerce Commission 17-19 (1931); Louisville & N. R. Co. v. United States, 282 U. S. 740, 749-750 (1931).

Section 1 (4) of the Act, 49 U. S. C. § 1 (4), provides that it shall be the duty of common carriers by rail to provide transportation “upon reasonable request therefor” and to establish just and reasonable rates. Section 2, 49 U. S. C. § 2, prohibits discriminatory rates or charges. Section 3 (1), 49 U. S. C. § 3 (1), forbids undue preferences or advantages, and undue or unreasonable prejudices or disadvantages to any person, area or particular description of traffic. The Act does not contain any provision expressly exempting traffic offered by carriers by motor vehicle from these broad common-carrier obligations of the railroads. On the contrary, these sections of the Act, read in light of the historic obligations and duties of common carriers and the large number of decisions of the Commission, and of the courts in this country and in England, indicate, presumptively at least, that railroads may not offer the service of transporting trailers for other shippers and deny that service to motor carriers. Indeed, as we have observed, the Commission’s Rule 2 is practically a paraphrase of § 2 of the Act. It provides that if a rail carrier through its open-tariff publications offers TOFC services, it shall make the same available “to any person” at the same charge. It is, of course, of no consequence that the Act does not expressly command that the railroads furnish this service to motor carriers. Their obligation as common carriers is comprehensive and exceptions are not to be implied. The fact that the person tendering traffic is a competitor does not permit the railroad to discriminate against him or in his favor. See ICC v. Delaware, L. & W. R. Co., 220 U. S. 235 (1911) (unlawful for railroads to charge less-than-carload rates for carload shipments tendered by freight forwarders); ICC v. Baltimore & O. R. Co., 225 U. S. 326 (1912) (lower rates on coal shipped by another railroad for its own use as fuel held unlawful). Cf. Wight v. United States, 167 U. S. 512 (1897). As this Court said in Delaware, L. & W. R. Co., supra:

“The contention that a carrier when goods are tendered to him for transportation can make the mere ownership of the goods the test of the duty to carry, or, what is equivalent, may discriminate in fixing the charge for carriage, not upon any difference inhering in the goods or in the cost of the service rendered in transporting them, but upon the mere circumstance that the shipper is or is not the real owner of the goods is so in conflict with the obvious and elementary duty resting upon a carrier, and so destructive of the rights of shippers as to demonstrate the unsoundness of the proposition by its mere statement.” 220 U. S., at 252.

This Court was faced with an intermodal problem, comparable to that in the present cases, in United States v. Pennsylvania R. Co., 323 U. S. 612 (1945) (the Seatrain case). The railroads refused to interchange their freight cars with Seatrain, a water carrier, for interstate transportation by Seatrain in competition with the railroads. The ICC ordered the railroads to desist from this practice, and the railroads brought an action to set aside its order. The railroads contended that the Transportation Act of 1940, 54 Stat. 898, did not in “specific language” authorize the Commission to require them to furnish the disputed facility to a competing water carrier. But this Court rejected that contention. It said:

“There is no language in the present Act which specifically commands that railroads must interchange their cars with connecting water lines. We cannot agree with the contention that the absence of specific language indicates a purpose of Congress not to require such an interchange. True, Congress has specified with precise language some obligations which railroads must assume. But all legislation dealing with this problem since the first Act in 1887, 24 Stat. 379, has contained broad language to indicate the scope of the law. The very complexities of the subject have necessarily caused Congress to cast its regulatory provisions in general terms. Congress has, in general, left the contents of these terms to be spelled out in particular cases by administrative and judicial action, and in the light of the Congressional purpose to foster an efficient and fair national transportation system. Cf. Chicago, R. I. & P. R. Co. v. United States, 274 U. S. 29, 36; Interstate Commerce Commission v. Railway Labor Executives Assn., 315 U. S. 373, 376-377.” 323 U. S., at 616.

In Seatrain, this Court emphatically rejected the analysis upon which the District Court here essentially based its position — that since the Act regulates rail, motor, and water carriers separately, in Titles I, II, and III, the Commission may not compel the mutual furnishing of services and facilities other than as expressly directed. Recognizing that in the case of water carriers (as distinguished from motor carriers), the Act specifically directs railroads to establish through routes with them, the Court held that this is not the end of the railroads’ obligation or the limit of the Commission’s power. On the contrary, the Court, relying on the National Transportation Policy (49 U. S. C. preceding § 1), held that the Act is designed “to provide a completely integrated interstate regulatory system over motor, railroad, and water carriers . . .” 323 U. S., at 618-619, and that the Commission therefore had powers commensurate with that goal. In this connection, the Court said:

“The 1940 Transportation Act is divided into three parts, the first relating to railroads, the second to motor vehicles, and the third to water carriers. That Act, as had each previous amendment of the original 1887 Act, expanded the scope of regulation in this field and correlatively broadened the Commission’s powers. The interrelationship of the three parts of the Act was made manifest by its declaration of a 'national transportation policy of the Congress to provide for fair and impartial regulation of all modes of transportation subject to the provisions of this Act, so administered as to recognize and preserve the inherent advantages of each.’ The declared objective was that of ‘developing, coordinating, and preserving a national transportation system by water, highway, and rail, . . . adequate to meet the needs of the commerce of the United States ....’ Congress further' admonished that ‘all of the provisions of this Act shall be administered and enforced with a view to carrying out the above declaration of policy.’ 54 Stat. 899.” 323 U. S., at 616-617.

In view of this, we cannot accept arguments based upon arguable inference from nonspecific statutory language, limiting the Commission’s power to adopt rules which, essentially, reflect its judgment in light of current facts as to the proper interrelationship of several modes of transportation with respect to an important new development. For example, § 216 (c), 49 U. S. C. § 316 (c), authorizes the railroads to enter into voluntary arrangements for through routes and joint rates with motor carriers. There is no Commission power to compel the railroads to do so, and it is argued that from this we should derive a congressional intent that the ICC may not compel the railroads to furnish services to the motor carriers in any circumstances. There is no basis for this vast leap from a particular authorization to a pervasive prohibition. See our discussion of Seatrain, supra.

It is also argued that a proviso to § 3 (1) of the Act, 49 U. S. C. § 3 (1), demonstrates that Congress did not intend to inhibit the railroads from discriminating against motor carriers. This contention, strenuously supported, is without merit. Section 3 (1) broadly prohibits any common carrier by rail from giving “any undue or unreasonable preference” to any person, locality or type of traffic. It then sets forth this proviso: “Provided, however, That this paragraph shall not be construed to apply to discrimination, prejudice, or disadvantage to the traffic of any other carrier of whatever description.” This is language more notable for its awkwardness than for its clarity; but it certainly was not intended, as appellees urge, to grant license to discriminate against traffic offered to the railroad by another carrier. We have noted above that this Court has clearly held that such discrimination is not permissible. Moreover, there is an intelligible meaning which can be ascribed to the proviso and which is consistent with its history. The proviso means that the prohibition against “undue or unreasonable preference or advantage” is not to be construed to forbid practices, otherwise lawful, solely because they operate to the prejudice of another carrier. It was in these terms that the language of the proviso was explained by Senator Wheeler, the bill’s sponsor. The proviso was taken almost verbatim from § 216 (d) of the Motor Carrier Act, 1935, 49 Stat. 558 (now 49 U. S. C. § 316 (d)). Explaining it, Senator Wheeler said:

“Paragraph (d) . . . prohibits unjust discrimination or undue prejudice or disadvantage. The committee has added a provision that this prohibition shall not be construed to apply to the traffic of any other carrier of whatever description.
“In other words, some of the truck and bus operators were afraid that the railroads would come in and complain, and we added this provision so as doubly to protect the truck and bus operators.
“This provision is added to meet the objection of certain interests that the original paragraph might have been construed so as to make it unlawful for a motor carrier to charge a rate which would place a rail carrier or any other carrier at a disadvantage. This contention is not well founded in our judgment inasmuch as the provisions of this paragraph are substantially the same as those in section 3 (1) of the Interstate Commerce Act, which has been in effect since 1887, and have always been interpreted as covering unequal and unjust treatment by a carrier of its patrons. However, as I said, to make assurance double sure, this provision was added.” 79 Cong. Rec. 5656 (1935). (Italics added.)

Accordingly, we are remitted to consideration of the provisions of the Act which, in the most general terms, require the railroads to perform as common carriers. It is not our duty, of course, to concern ourselves with a nice evaluation of the arguments as to whether the Commission pursued the course of wisdom in ordering the railroads to make piggyback service available to motor carriers if it is offered to others on open-tariff rates. It is our task to scrutinize the Commission’s authority, not the substance of its exercise. We conclude that, in light of the mandate of the National Transportation Policy, the Commission had authority derived from the common-carrier obligations of the railroads as reflected in §§ 1 (4), 2, and 3 (1) of the Act to promulgate Rule 2 requiring that any railroad offering TOFC service through its open-tariff publications must make that service available “to any person” on nondiscriminatory terms. We come, then, to Rule 3.

II.

Rule 3, in general, authorizes “motor common and contract carriers, water common and contract carriers, and freight forwarders” to “utilize TOFC service in the performance of all or any portion of their authorized service through the use of open-tariff TOFC rates published by a rail carrier.” At the outset, as discussed above, we reject the contention that the railroads, despite their common-carrier obligations and the absence of an exception thereto in the Act, may exclude carriers by competing modes of transportation from access to their publicly offered services and facilities; and we do not accept the argument that § 216 (c), 49 U. S. C. § 316 (c), which authorizes voluntary through route and joint rate arrangements between railroads and truckers, implies that the railroads have no other obligation to motor carriers and that no other obligation may be imposed upon them by the ICC in this respect. That contention is refuted by the Seatmin case, supra.

It is strenuously contended, however, that whatever may be the railroads’ duty, common carriers by motor vehicle may not be authorized to substitute transportation by rail for the transportation by road which is the basis of their franchise — except with the agreement of the railroad. It is this exception that saps the argument of some of its force, if not its fervor. One would assume that if the motor carriers are not authorized by their franchise under the Act to substitute transportation by rail for transportation by road, they could not do so with the consent of the railroads. But neither the railroads, most of which, by agreement, provide TOFC service to some motor carriers, nor the freight forwarders take this position. Nor did the court below. None of them urges the invalidity of Plan I as presently in use, which provides for trucker utilization of TOFC service with the railroad’s concurrence. As the District Court put it: “The policy explicit in Sections 216 (c) [authorizing voluntary rail-truck through routes, discussed above] and 402 (a)(5) [49 U. S. C. § 1002 (a)(5), defining freight forwarders, discussed below], and implicit in the structure of. the Interstate Commerce Act as a whole, does not allow a motor carrier to perform its authorized service simply by tendering the shipment to the railroad for transportation without the railroad’s concurrence.” 244 F. Supp., at 967. (Italics added.) As we have discussed, this “concurrence” of the railroads, where granted, permits truckers to use TOFC service not only pursuant to Plans I and V, supra, but also under Plan III and Plan IV, the latter being open-tariff arrangements. The argument of appellees and the reasoning of the District Court carefully concede that the motor carriers may, without violating the Act or their charters, utilize this substituted service.

But, regardless of this, there is no adequate reason to construe the Act so as to deprive the Commission of the power to authorize the carriers by motor vehicle to use TOFC when that service is offered by railroads to the public on open tariff. The Interstate Commerce Act defines a “common carrier by motor vehicle” as “any person which holds itself out to the general public to engage in . . . transportation by motor vehicle.” 49 U. S. C. § 303 (a) (14). This does not exclude joint arrangements with water carriers or rail carriers, which are expressly permitted by § 216 (c) on a voluntary basis, and according to the appellants and the District Court it is not inconsistent with the use of open-tariff TOFC if the railroad is willing. Clearly, too, a trucker which utilizes a ferry to transport its trailer and its cargo is not violating the statute or its certificate. We may properly assume, therefore, that the Act cannot be construed to require that the trucker must always transport its cargo exclusively by road. Appellees and the District Court argue, however, that the following factors demonstrate that the Commission may not authorize motor carriers to use TOFC service on open tariffs: the long history of the Commission’s construction and application of the Act contrary to its present position, the history of congressional consideration, and the provisions of the Act relating to freight forwarders.

It is true, as we have stated, that the Commission for over 25 years has insisted that railroad concurrence is essential for trucker use of TOFC services. In Substituted Freight Service, 232 I. C. C. 683, the Commission held' that a person may not be both a carrier and a shipper as to the same service. See also Ringsby Truck Lines, Inc. v. Atchison, T. & S. F. R. Co., 263 I. C. C. 139, 141 (1945); and the New Haven case, 293 I. C. C. 93, 104-105 (1954). But see the earlier contrary holding in Trucks on Flat Cars Between Chicago and Twin Cities, 216 I. C. C. 435 (1936). The Commission’s Report argues that Substituted Freight Service, correctly understood, does not proscribe the kind of substituted service here at issue, “in which one common carrier service is substituted for another through the use of an open-tariff rate of the carrier performing the substituted service — provided that proper notice is given in the tariff publication of the carrier using the substituted service.” 322 I. C. C., at 333. The Commission also argues that its subsequent decisions, cited above, are based upon an incorrect view of the Substituted Freight Service case. And it cites Greer Broker Application, 23 M. C. C. 417 (1940), and Stone’s Exp., Inc., Common Carrier Application, 32 M. C. C. 525 (1942), as consistent with its present reading of Substituted Freight Service. We do not rest upon this analysis because, in any event, we agree that the Commission, faced with new developments or in light of reconsideration of the relevant facts and its mandate, may alter its past interpretation and overturn past administrative rulings and practice. Compare SEC v. Chenery Corp., 332 U. S. 194 (1947); FCC v. WOKO, 329 U. S. 223 (1946). In fact, although we make no judgment as to the policy aspects of the Commission’s action, this kind of flexibility and adaptability to changing needs and patterns of transportation is an essential part of the office of a regulatory agency. Regulatory agencies do not establish rules of conduct to last forever; they are supposed, within the limits of the law and of fair and prudent administration, to adapt their rules and practices to the Nation’s needs in a volatile, changing economy. They are neither required nor supposed to regulate the present and the future within the inflexible limits of yesterday.

It is true that the attention of the Congress had been called to the need for action to secure the relief which the Commission subsequently granted in its rules. In February 1962, the American Trucking Associations, in the course of oral argument in Gordon’s Transports, Inc. v. Strickland Transp. Co., 318 I. C. C. 395, sustained sub nom. Strickland Transportation Co. v. United States, 219 F. Supp. 618 (D. C. N. D. Tex. 1963), apparently urged that motor carriers be allowed to utilize TOFC open tariffs. On April 5, 1962, President Kennedy sent a transportation message to Congress calling for legislative action to “[a]ssure all carriers the right to ship vehicles or containers on the carriers of other branches of the transportation industry at the same rates available to noncarrier shippers . . .” so that the various carriers would be placed “in a position of equality with freight forwarders and other shippers in the use of the promising and fast-growing piggyback and related techniques.” H. R. Doc. No. 384, 87th Cong., 2d Sess., p. 5 (1962). Secretary of Commerce Hodges transmitted to Congress proposed legislation to implement the President’s message. Hearings on S. 3242 and S. 3243 before the Senate Committee on Commerce, 87th Cong., 2d Sess., pt. 1, p. 13 (1962). See also Hearings on S. 1061 and S. 1062 before Surface Transportation Subcommittee of the Senate Committee on Commerce, 88th Cong., 1st Sess., pt. 1, p. 3 (1963). Bills were introduced in 1962 and 1963. See S. 3242 and H. R. 11584, 87th Cong., 2d Sess. (1962); S. 1062 and H. R. 4701, 88th Cong., 1st Sess. (1963). On June 29, 1962, the Commission instituted the present proceeding. It advised Congress of its action and of its intention to “resolve” the matter or, if it could not, to recommend appropriate legislation. Surface Transportation Subcommittee Hearings, supra, pt. 2, p. 801; Hearings on H. R. 4700 and H. R. 4701 before the House Committee on Interstate and Foreign Commerce, 88th Cong., 1st Sess., pt. 1, p. 32 (1963). Following this, requests came from the industry to Congress that it withhold legislative action pending the Commission’s decision. See, e. g., Hearings on H. R. 4700 and H. R. 4701, supra, pt. 1, p. 213; pt. 2, p. 991. We do not regard this as legislative history demonstrating a congressional construction of the meaning of the statute, nor do we find in it evidence of an administrative interpretation of the Act which should tilt the scales against the correctness of the Commission’s conclusions as to its authority to prescribe the present rules. The advocacy of legislation by an administrative agency — and even the assertion of the need for it to accomplish a desired result — is an unsure and unreliable, and not a highly desirable, guide to statutory construction. The possibility of its use to prove more than it means may, but should not, deter administrative agencies from seeking helpful clarification of authority or a fresh and specific congressional mandate.

The final argument to which we must address ourselves is vigorously made by the freight forwarder appellees. Freight forwarding is authorized and regulated in Part IV of the Interstate Commerce Act (49 U. S. C. § 1001 et seq.). This Part was enacted in 1942 (56 Stat. 284). A freight forwarder is defined as “any person which (otherwise than as a carrier . . . [by rail, motor vehicle or water]) holds itself out to the general public as a common carrier to transport or provide transportation of property, . . . and which . . . (A) assembles and consolidates . . . shipments . . . and (B) assumes responsibility for the transportation of such property . . . and (C) utilizes, for the whole or any part of the transportation of such shipments, the services of” a rail, motor vehicle or water carrier. §402 (a) (5), 49 U. S. C. § 1002 (a)(5). It cannot perform the physical transportation except in its terminal areas. § 410 (h), 49 U. S. C. § 1010 (h). It assembles shipments, consolidates them, ships them by common carrier (usually a railroad), receives them and separates and distributes them to individual consignees. The Act specifically provides that no permit to engage in freight forwarding shall be issued to any common carrier by rail, motor vehicle or water. § 410 (c), 49 U. S. C. § 1010 (c). But a freight forwarder may be controlled by such a carrier, or under common control with it, and the Act specifically provides that the Commission may not for this reason deny a permit to the freight forwarder. Ibid.

It is obvious that there is a good deal of overlap between the work of the freight forwarders and that of the other common carriers. The freight forwarders’ argument here is that the Act authorizes only freight forwarders to engage in the assembly and consolidation of shipments and the subsequent use of rail facilities for transportation, and that permitting the truckers to engage in this sort of service, by means of TOFC on open tariffs, is to authorize them to engage in this service in violation of the Act’s prohibition against licensing other carriers as freight forwarders.

Forwarders are presently permitted to utilize railroad open-tariff TOFC service. Movement of Highway Trailers by Rail, 293 I. C. C. 93, 111 (1954). They may even quote trailer-load rates in competition with truckers and with rails. Eastern Express, Inc. v. United States, 198 F. Supp. 256 (D. C. S. D. Ind.), aff’d, 369 U. S. 37 (1962). But railroads, within their terminal areas (§ 202 (c), 49 U. S. C. § 302 (c)), and truckers have also traditionally assembled, consolidated, and distributed cargo in connection with providing their authorized transportation services. The Act expressly exempts from the freight-forwarder provisions any person who performs these services — which are similar to those of freight forwarders — as a carrier subject to another part of the Act. §402 (a)(5), 49 U. S. C. 1 1002 (a)(5). The House Report on Part IV makes it clear that the Part does not apply “with respect to transportation performed by . . . motor . . . carriers in accordance with the applicable provisions of the Interstate Commerce Act.” H. R. Rep. No. 1172, 77th Cong., 1st Sess., p. 6 (1941).

The mere fact that the truckers, by reason of the Commission’s Rules 2 and 3, may utilize open-tariff TOFC service, where offered generally, certainly does not convert their activity into freight forwarding, in conflict with the Act. It is clear that where the railroad agrees, the trucker may use this service, and that a motor vehicle common carrier may assemble, consolidate, transport by piggyback in these circumstances, and distribute after arrival at the railroad terminus. The fact that the Commission enlarges this additional possibility of transportation of the truckers’ trailers may be a competitive fact of some significance, but it does not convert the truckers into freight forwarders, nor deprive the latter of the exclusive rights specified in the Act.

III.

The controlling fact of the matter is that all piggyback service is, by its essential nature, bimodal. It partakes of both the railroad and the trucking functions. The proper allocation of these bimodal functions involves complex considerations. It is not and cannot be precise or mathematical. Railroads are not now confined to the rails. They operate trucks. They are permitted to assemble cargo and, if they so desire, to use their own trucks or subsidiary companies to do so. § 202 (c), 49 U. S. C. § 302 (c). Truckers are not now strictly confined to the highway. In the absence of congressional direction, there is no basis for denying to the ICC the power to allocate and regulate transportation that partakes of both elements; and there is no basis whatever for denying to the Commission the power to carry out its responsibilities under the National Transportation Policy, 54 Stat. 899 (1940), 49 U. S. C. preceding § 1, to “provide for fair and impartial regulation of all modes of transportation subject to the provisions of this Act, so administered as to recognize and preserve the inherent advantages of each ... to the end of developing, coordinating, and preserving a national transportation system by water, highway, and rail, as well as other means, adequate to meet the needs of the commerce of the United States, of the Postal Service, and of the national defense.” This Court has observed that “The National Transportation Policy, formulated by Congress, specifies in its terms that it is to govern the Commission in the administration and enforcement of all provisions of the Act,” and the Court has styled the National Transportation Policy as “the yardstick by which the correctness of the Commission’s actions will be measured.” Schaffer Transp. Co. v. United States, 355 U. S. 83, 87-88 (1957). Here the Commission has found that “the inherent advantages of each mode of transportation can be given freest play through the highest degree of coordination, and . . . encouragement of such coordination is in the public-interest.” 322 I. C. C., at 330. This conclusion, and its implementation in the TOFC rules, has obvious importance to “adequate, economical, and efficient service” and to the “establishment and maintenance of reasonable charges for transportation services,” which are mandates of the National Transportation Policy. We cannot sustain the District Court’s ruling that the Commission lacked power to promulgate the rules here in issue.

Accordingly, the decision below is

Reversed

Mr. Justice Black and Mr. Justice Stewart would affirm the judgment of the District Court for the reasons stated in the opinion of District Court Judge Hoffman reported at 244 F. Supp. 955, 961-964.

Mr. Justice Harlan, finding it impossible to escape the impact of the proviso to §3(1) of the Interstate Commerce Act, 49 U. S. C. §3(1), would, for reasons elaborated in the portion of Judge Hoffman’s opinion dealing with that point, 244 F. Supp. 955, at 961-964, affirm the judgment of the District Court.

       322 I. C. C., at 305. The Commission observed, “There can be little doubt that piggybacking has been a decisive factor in returning to the railroads a substantial volume of traffic that previously had been moving by other modes of transportation, private and for-hire.” Id., at 307. It found that “In 1957 a total of 57 class I railroads were participating in TOFC tariffs; in mid-1963 there were 100 class I roads doing so. In 1955, 32 railroads reported a total of 168,150 TOFC carloadings, for a weekly average of 3,234. In 1959, 50 reporting railroads showed totals of 415,156 annual and 7,984 weekly average carloadings for TOFC. For 1963, 63 reporting railroads indicated continued growth to approximately 797,500 loaded TOFC ears, a weekly rate of approximately 12,700 [15,300] loadings.” Id., at 309.

       For a statement of the Commission’s earlier position, prior to enactment of Part II of the Interstate Commerce Act, see Trucks on Flat Cars Between Chicago and Twin Cities, 216 I. C. C. 435 (1936), where it was held that motor carriers, like any other competing mode of unregulated transportation (compare ICC v. Delaware, L. & W. R. Co., 220 U. S. 235 (1911)), were entitled to utilize a published piggyback tariff.

       Section 1 (4) of the Act, 49 U. S. C. § 1 (4), imposes a duty on railroads to establish joint through routes and rates with water carriers, but there is no such provision with respect to motor carriers. See §216 (c), 49 U. S. C. §316 (c).

       Cf. Gordon’s Transports, Inc. v. Strickland Transp. Co., 318 I. C. C. 395, 396-397, sustained sub nom. Strickland Transportation Co. v. United States, 219 F. Supp. 618, 620 (D. C. N. D. Tex. 1963).

       There is “no Plan I service of any type available between mid-west points east of the tier of states of Wyoming, Colorado, and New Mexico, on the one hand, and, on the other hand, points in the states west thereof. Transcontinental railroads operating between the latter points have elected not to offer any form of Plan I service to motor carriers between such points.” Pacific Inter-mountain Express Co., Supplemental Statement of W. S. Pilling (R. 123).

       See, e. g., Great Western R. Co. v. Sutton, L. R. 4 H. L. 226 (1869); London & N. W. R. Co. v. Evershed, 3 App. Cas. 1029 (1878); Wight v. United States, 167 U. S. 512 (1897); ICC v. Baltimore & O. R. Co., 225 U. S. 326 (1912); Louisville & N. R. Co. v. United States, 282 U. S. 740 (1931); Kansas City S. R. Co. v. United States, 282 U. S. 760 (1931); ICC v. Delaware, L. & W. R. Co., 220 U. S. 235 (1911); United States v. Chicago Heights Trucking Co., 310 U. S. 344 (1940).

       A suit attacking the validity of Plan I service is pending. Lone Star Package Car Co. v. United States, Civ. No. 4-355 (D. C. N. D. Tex.).

       In important respects, motor carrier use of open-tariff TOFC differs from a motor-rail through route-joint rate TOFC arrangement. Hence the District Court’s exception for open-tariff TOFC where the railroad consents cannot be justified as based upon the voluntary through route and joint rate provision of the Act. §216 (c), 49 U. S. C. §316 (c).

       It should also be noted that the legislation proposed by the ICC itself (S. 3510 and H. R. 12362, 87th Cong., 2d Sess. (1962); S. 676 and H. R. 2088, 88th Cong., 1st Sess. (1963)) would have required railroads to establish motor-rail through routes and joint rates and granted the Commission power to compel such arrangements — which is quite different from entitling motor carriers to use railroad open tariffs.

       As the ICC observed: “What [those who object to- open-tariff TOFC] overlook is that all TOFC service is inherently bimodal in that its basic characteristic is the combination of the inherent advantages of rail and motor transportation . . . .” 322 I. C. C., at 329. Thus, the District Court’s view of the statutory compartmentalization of transportation as either rail or motor or water, fails to recognize the primary fact about TOFC, which in any of its varieties cannot be made to fit the District Court’s rigid modal conceptualization.

       Cf. United States v. Rock Island Co., 340 U. S. 419, 433 (1951): “Complete rail domination [over motor transportation] was not envisaged as a way to preserve the inherent advantages of each form of transportation.”


author: Per Curiam.

text:
    STOECKLE v. WOLKE.
    No. 1557,
    Misc.
    Decided May 29, 1967.
   Per Curiam.

The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    SWEET BRIAR INSTITUTE v. BUTTON et al.
    No. 1106.
    Decided May 29, 1967.

      Frank G. Davidson, Jr., and Thomas S. Currier for appellant.

      Robert Y. Button, Attorney General of Virginia, pro se, and R.D. Mcllwaine III, Assistant Attorney General, for appellees.
   Per Curiam.

The judgment of the United States District Court for the Western District of Virginia is reversed. England v. Louisiana State Board of Medical Examiners, 375 U. S. 411 (1964). The case is remanded for consideration on the merits. Section 202 of the Civil Rights Act of 1964, 78 Stat. 244, 42 U. S. C. § 2000a-1. Kline v. Burke Construction Co., 260 U. S. 226.

Mr. Justice Harlan and Mr. Justice Stewart would affirm the judgment.


text:
    CEPERO v. INDUSTRIAL COMMISSION OF PUERTO RICO.
    No. 1565,
    Misc.
    Decided May 29, 1967.
   Per Curiam.

The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    UNITED STATES v. CONTINENTAL OIL CO.
    No. 450.
    Decided May 29, 1967.

      Solicitor General Marshall, Assistant Attorney General Turner, Robert B. Hummel, Jerry Z. Pruzansky and Lawrence W. Somerville for the United States.
   Per Curiam.

The judgment is vacated and the case remanded to the United States District Court for the District of New Mexico for further consideration in light of United States v. Pabst Brewing Co., 384 U. S. 546.


text:
    CEPERO v. COLON et al.
    No. 1606,
    Misc.
    Decided May 29, 1967.
   Per Curiam.

The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    MARKIS v. UNITED STATES.
    No. 43.
    Decided May 29, 1967

      Alfred Belinkie for petitioner in No. 43. W. Paul Flynn for petitioner in No. 64.

      Solicitor General Marshall, Assistant Attorney General Vinson, Beatrice Rosenberg and Marshall Tamor Golding for the United States in No. 43. Solicitor General Marshall for the United States in No. 64.

      Together with No. 64, Moretti v. United States, also on petition for writ of certiorari to the same court.

   Per Curiam.

The petitions for writs of certiorari are granted, the judgments vacated and the cases remanded to the United States District Court for the District of Connecticut for a new trial, should the Government seek to prosecute petitioners anew. Nardone v. United States, 302 U. S. 379; Nardone v. United States, 308 U. S. 338.


text:
    DELANEY v. FLORIDA.
    No. 1213.
    Decided May 29, 1967.

      Alfred I. Hopkins, Irma Robbins Feder and Richard Yale Feder for appellant.

      Earl Faircloth, Attorney General of Florida, and Reeves Bowen, Assistant Attorney General, for appellee.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question. Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted.


text:
    PATTERSON et al. v. VIRGINIA ELECTRIC & POWER CO.
    No. 1572,
    Misc.
    Decided May 29, 1967.
   Per Curiam.

The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.