source: Caselaw Access Project

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

license: Public Domain

text:
    UNITED STATES v. JOHNSON.
    No. 25.
    Argued November 10 and 15, 1965.
    Decided February 24, 1966.

      Beatrice Rosenberg argued the cause for the United States. With her on the briefs were Solicitor General Marshall, Assistant Attorney General Vinson, Ralph S. Spritzer and Jerome M. Feit.

      George Cochran Doub and David W. Louisell argued the cause and filed a brief for respondent.

      Eugene Gressman and Edward L. Genn filed a brief for J. Kenneth Edlin, as amicus curiae, urging affirmance.
   Mr. Justice Harlan

delivered the opinion of the Court.

Respondent Johnson, a former United States Congressman, was indicted and convicted on seven counts of violating the federal conflict of interest statute, 18 U. S. C. § 281 (1964 ed.), and on one count of conspiring to defraud the United States, 18 U. S. C. § 371 (1964 ed.). The Court of Appeals for the Fourth Circuit set aside the conviction on the conspiracy count, 337 F. 2d 180, holding that the Government’s allegation that Johnson had conspired to make a speech for compensation on the floor of the House of Representatives was barred by Art. I, § 6, of the Federal Constitution which provides that “for any Speech or Debate in either House, they [Senators and Representatives] shall not be questioned in any other Place.” The Court of Appeals ordered a new trial on the other counts, having found that the evidence adduced under the unconstitutional aspects of the conspiracy count had infected the entire prosecution.

The conspiracy of which Johnson and his three co-defendants were found guilty consisted, in broad outline, of an agreement among Johnson, Congressman Frank Boykin of Alabama, and J. Kenneth Edlin and William L. Robinson who were connected with a Maryland savings and loan institution, whereby the two Congressmen would exert influence on the Department of Justice to obtain the dismissal of pending indictments of the loan company and its officers on mail fraud charges. It was further claimed that as a part of this general scheme Johnson read a speech favorable to independent savings and loan associations in the House, and that the company distributed copies to allay apprehensions of potential depositors. The two Congressmen approached the Attorney General and the Assistant Attorney General in charge of the Criminal Division and urged them “to review” the indictment. For these services Johnson received substantial sums in the form of a “campaign contribution” and “legal fees.” The Government contended, and presumably the jury found, that these payments were never disclosed to the Department of Justice, and that the payments were not bona fide campaign contributions or legal fees, but were made simply to “buy” the Congressman.

The bulk of the evidence submitted as to Johnson dealt with his financial transactions with the other conspirators, and with his activities in the Department of Justice. As to these aspects of the substantive counts and the conspiracy count, no substantial question is before us. 18 U. S. C. § 371 has long been held to encompass not only conspiracies that might involve loss of government funds, but also “any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government.” Haas v. Henkel, 216 U. S. 462, 479. No argument is made, nor do we think that it could be successfully contended, that the Speech or Debate Clause reaches conduct, such as was involved in the attempt to influence the Department of Justice, that is in no wise related to the due functioning of the legislative process. It is the application. of this broad conspiracy statute to an improperly motivated speech that raises the constitutional problem with which we deal.

I.

The language of the Speech or Debate Clause clearly proscribes at least some of the evidence taken during trial. Extensive questioning went on concerning how much of the speech was written by Johnson himself, how much by his administrative assistant, and how much by outsiders representing the loan company. The government attorney asked Johnson specifically about certain sentences in the speech, the reasons for their inclusion and his personal knowledge of the factual material supporting those statements. In closing argument the theory of the prosecution was very clearly dependent upon the wording of the speech. In addition to questioning the manner of preparation and the precise ingredients of the speech, the Government inquired into the motives for giving it.

The constitutional infirmity infecting this prosecution is not merely a matter of the introduction of inadmissible evidence. The attention given to the speech’s substance and motivation was not an incidental part of the Government’s case, which might have been avoided by omitting certain lines of questioning or excluding certain evidence. The conspiracy theory depended upon a showing that the speech was made solely or primarily to serve private interests, and that Johnson in making it was not acting in good faith, that is, that he did not prepare or deliver the speech in the way an ordinary Congressman prepares or delivers an ordinary speech. Johnson’s defense quite naturally was that his remarks were no different from the usual congressional speech, and to rebut the prosecution’s case he introduced speeches of several other Congressmen speaking to the same general subject, argued that his talk was occasioned by an unfair attack upon savings and loan associations in a Washington, D. C., newspaper, and asserted that the subject matter of the speech dealt with a topic of concern to his State and to his constituents. We see no escape from the conclusion that such an intensive judicial inquiry, made in the course of a prosecution by the Executive Branch under a general conspiracy statute, violates the express language of the Constitution and the policies which underlie it.

II.

The Speech or Debate Clause of the Constitution was approved at the Constitutional Convention without discussion and without opposition. See Y Elliot’s Debates 406 (1836 ed.); II Records of the Federal Convention 246 (Farrand ed. 1911). The present version of the clause was formulated by the Convention’s Committee on Style, but the original vote of approval was of a slightly different formulation which repeated almost verbatim the language of Article V of the Articles of Confederation: “Freedom of speech and debate in Congress shall not be impeached or questioned in any court, or place out of Congress . . . .” The language of that Article, of which the present clause is only a slight modification, is in turn almost identical to the English Bill of Rights of 1689: “That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament.” 1 W. & M., Sess. 2, c. 2.

This formulation of 1689 was the culmination of a long struggle for parliamentary supremacy. Behind these simple phrases lies a history of conflict between the Commons and the Tudor and Stuart monarchs during which successive monarchs utilized the criminal and civil law to suppress and intimidate critical legislators. Since the Glorious Revolution in Britain, and throughout United States history, the privilege has been recognized as an important protection of the independence and integrity of the legislature. See, e. g., Story, Commentaries on the Constitution § 866; II The Works of James Wilson 37-38 (Andrews ed. 1896). In the American governmental structure the clause serves the additional function of reinforcing the separation of powers so deliberately established by the Founders. As Madison noted in Federalist No. 48:

“It is agreed on all sides, that the powers properly belonging to one of the departments, ought not to be directly and compleatly administered by either of the other departments. It is equally evident, that neither of them ought to possess directly or indirectly, an overruling influence over the others in the administration of their respective powers. It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it. After discriminating therefore in theory, the several classes of power, as they may in their nature be legislative, executive, or judiciary; the next and most difficult task, is to provide some practical security for each against the invasion of the others. What this security ought to be, is the great problem to be solved.” (Cooke ed.)

The legislative privilege, protecting against possible prosecution by an unfriendly executive and conviction by a hostile judiciary, is one manifestation of the “practical security” for ensuring the independence of the legislature.

In part because the tradition of legislative privilege is so well established in our polity, there is very little judicial illumination of this clause. Clearly no precedent controls the decision in the case before us. This Court first dealt with the clause in Kilbourn v. Thompson, 103 U. S. 168, a suit for false imprisonment alleging that the Speaker and several members of the House of Representatives ordered the petitioner to be arrested for contempt of Congress. The Court held first that Congress did not have power to order the arrest, and second that were it not for the privilege, the defendants would be liable. The difficult question was whether the participation of the defendants in passing the resolution ordering the arrest was “speech or debate.” The Court held that the privilege should be read broadly, to include not only “words spoken in debate,” but anything “generally done in a session of the House by one of its members in relation to the business before it.” 103 U. S., at 204.

In Tenney v. Brandhove, 341 U. S. 367, at issue was whether legislative privilege protected a member of the California Legislature against a suit brought under the Civil Rights statute, 8 U. S. C. §§ 43, 47 (3) (1946 ed.), alleging that the legislator had used his official forum “to intimidate and silence plaintiff and deter and prevent him from effectively exercising his constitutional rights of free speech and to petition the Legislature for redress of grievances . . . 341 U. S., at 371. The Court held a dismissal of the suit proper; it viewed the state legislative privilege as being on a parity with the similar federal privilege, and concluded that

“The claim of an unworthy purpose does not destroy the privilege-.. .. The holding of this Court in Fletcher v. Peck, 6 Cranch 87, 130, that it was not consonant with our scheme of government for a court to inquire into the motives of legislators, has remained unquestioned.” 341 U. S., at 377.

III.

Kilbourn and Tenney indicate that the legislative privilege will be read broadly to effectuate its purposes; neither case deals, however, with a criminal prosecution based upon an allegation that a member of Congress abused his position by conspiring to give a particular speech in return for remuneration from private interests. However reprehensible such conduct may be, we believe the Speech or Debate Clause extends at least so far as to prevent it from being made the basis of a criminal charge against a member of Congress of conspiracy to defraud the United States by impeding the due discharge of government functions. The essence of such a charge in this context is that the Congressman’s conduct was improperly motivated, and as will appear that is precisely what the Speech or Debate Clause generally forecloses from executive and judicial inquiry.

Even though no English or American case casts bright light on the one before us it is apparent from the history of the clause that the privilege was not born primarily of a desire to avoid private suits such as those in Kil-bourn and Tenney, but rather to prevent intimidation by the executive and accountability before a possibly hostile judiciary. In the notorious proceedings of King Charles I against Eliot, Hollis, and Valentine, 3 How. St. Tr. 294 (1629), the Crown was able to imprison members of Commons on charges of seditious libel and conspiracy to detain the Speaker in the chair to prevent adjournment. Even after the Restoration, as Holds-worth noted, “[t]he law of seditious libel was interpreted with the utmost harshness against those whose political or religious tenets were distasteful to the government.” VI Holdsworth, A History of English Law 214 (1927). It was not only fear of the executive that caused concern in Parliament but of the judiciary as well, for the judges were often lackeys of the Stuart monarchs, levying punishment more “to the wishes of the crown than to the gravity of the offence.” Id,, at 214-215. There is little doubt that the instigation of criminal charges against critical or disfavored legislators by the executive in a judicial forum was the chief fear prompting the long struggle for parliamentary privilege in England and, in the context of the American system of separation of powers, is the predominate thrust of the Speech or Debate Clause. In scrutinizing this criminal prosecution, then, we look particularly to the prophylactic purposes of the clause.

The Government argues that the clause was meant to prevent only prosecutions based upon the “content” of speech, such as libel actions, but not those founded on “the antecedent unlawful conduct of accepting or agreeing to accept a bribe.” Brief of the United States, at 11. Although historically seditious libel was the most frequent instrument for intimidating legislators, this has never been the sole form of legal proceedings so employed, and the language of the Constitution is framed in the broadest terms. The broader thrust of the privilege is indicated by a nineteenth century British case, Ex parte Wason, L. R. 4 Q. B. 573 (1869), which dealt specifically with an alleged criminal conspiracy. There a private citizen moved that a magistrate be required to prosecute several members of the House of Lords for conspiring wrongfully to prevent his petition from being heard on the floor. The court denied the motion, stating that statements made in the House “could not be made the foundation of civil or criminal proceedings . . . . And a conspiracy to make such statements would not make the person guilty of it amenable to the criminal law.” Id., at 576. (Cockburn, C. J.) Mr. Justice Lush added, “I am clearly of opinion that we ought not to allow it to be doubted for a moment that the motives or intentions of members of either House cannot be inquired into by criminal proceedings with respect to anything they may do or say in the House.” Id., at 577.

In the same veip. the Government contends that the Speech or Debate Clause was not violated because the gravamen of the count was the alleged conspiracy, not the speech, and because the defendant, not the prosecution, introduced the speech itself. Whatever room the Constitution may allow for such factors in the context of a different kind of prosecution, we conclude that they cannot serve to save the Government’s case under this conspiracy count. It was undisputed that Johnson delivered the speech; it was likewise undisputed that Johnson received the funds; controversy centered upon questions of who first decided that a speech was desirable, who prepared it, and what Johnson’s motives were for making it. The indictment itself focused with particularity upon motives underlying the making of the speech and upon its contents:

“(15) It was a part of said conspiracy that the said THOMAS F. JOHNSON should . . . render services, for compensation, ... to wit, the making of a speech, defending the operations of Maryland’s ‘independent’ savings and loan associations, the financial stability and solvency thereof, and the reliability and integrity of the ‘commercial insurance’ on investments made by said ‘independent’ savings and loan associations, on the floor of the House of Representatives.” App. 5-6.

We hold that a prosecution under a general criminal statute dependent on such inquiries necessarily contravenes the Speech or Debate Clause. We emphasize that our holding is limited to prosecutions involving circumstances such as those presented in the case before us. Our decision does not touch a prosecution which, though as here founded on a criminal statute of general application, does not draw in question the legislative acts of the defendant member of Congress or his motives for performing them. And, without intimating any view thereon, we expressly leave open for consideration when the case arises a prosecution which, though possibly entailing inquiry into legislative acts or motivations, is founded upon a narrowly drawn statute passed by Congress in the exercise of its legislative power to regulate the conduct of its members.

The Court of Appeals’ opinion can be read as dismissing the conspiracy count in its entirety. The making of the speech, however, was only a part of the conspiracy charge. With all references to this aspect of the conspiracy eliminated, we think the Government should not be precluded from a new trial on this count, thus wholly purged of elements offensive to the Speech or Debate Clause.

IV.

The Court of Appeals held that Johnson was entitled to a new trial on the conflict of interest counts because the admission of evidence concerning the speech aspect of the conspiracy count was prejudicial on these other counts as well. The Government reserved the right to contest the order of a new trial, but, except for a footnote in its reply brief, it did not so argue in this Court; on the contrary it stated in oral argument that it stood solely on its position with reference to the conspiracy count. In these circumstances we find no occasion to review the Court of Appeals’ assessment of the record in this respect.

For the foregoing reasons we affirm the judgment of the Court of Appeals and remand the case to the District Court for further proceedings consistent with this opinion. jf- is so ordered.

Mr. Justice Black took no part in the decision of this case.

Mr. Justice White took no part in the consideration or decision of this case.

Mr. Chief Justice Warren,

with whom Mr. Justice Douglas and Mr. Justice Brennan join, concurring in part and dissenting in part.

I concur in the limited holding of the Court that the use of the Congressman’s speech during this particular trial — with an examination into its authorship, motivation and content — was violative of the Speech or Debate Clause. I also join the Court in its remand of the conspiracy count for a new trial, this time purged of offensive matter. The Court’s refusal to decide the validity of the conviction under the seven substantive counts, hovrever, prompts me to dissent. In my view, the conflict of interest counts are properly before us, raise important questions and should be resolved now since the respondent will probably raise these issues on his forthcoming reprosecution.

I.

The Court explains its refusal to reach the substantive counts by referring to a single statement made by the Government’s counsel at the outset of oral argument, p. 186, n. 16, ante. In the same colloquy, the Government remarked that it did not consider the issues raised by the substantive counts to be of general importance, and felt that the question of the effect of the tainted evidence on these counts would unavoidably require an examination of the entire 1,300-page record. Prior to oral argument, the Government had argued these issues exhaustively in the Court of Appeals, and had mentioned them in its petition for certiorari in compliance with Supreme Court Rule 40 (1) (d)(1) and (2), and in its reply brief on the merits. Both in its reply brief and later in oral argument, in answer to inquiries from the Bench, it contended that the evidence, arguments and instructions on the conspiracy count were distinct from the substantive counts. At best, then, the Government’s position is ambiguous, if not puzzling. Beyond that, the respondent himself specifically urged this Court to consider the issues in his brief on the merits, pp. 100-101 and n. 86, devoted 33 pages of argument to this phase of the case and addressed himself to the questions on oral argument. Under these unique circumstances, I think it is our duty carefully to scrutinize all the facts and issues involved in the prosecution.

II.

After reading the record, it is my conclusion that the Court of Appeals erred in determining that the evidence concerning the speech infected the jury’s judgment on the substantive counts. The evidence amply supports the prosecution’s theory and the jury’s verdict on these counts — that the respondent received over $20,000 for attempting to have the Justice Department dismiss an indictment against his co-conspirators, without disclosing his role in the enterprise. This is the classic example of a violation of § 281 by a Member of the Congress. See May v. United States, 175 F. 2d 994, 1006 (C. A. D. C. Cir.); United States v. Booth, 148 F. 112, 117 (Cir. Ct. D. Ore.). The arguments of government counsel and the court’s instructions separating the conspiracy from the substantive counts seem unimpeachable. The speech was a minor part of the prosecution. There was nothing in it to inflame the jury and the respondent pointed with pride to it as evidence of his vigilance in protecting the financial institutions of his State. The record further reveals that the trial participants were well aware that a finding of criminality on one count did not authorize similar conclusions as to other counts, and I believe that this salutary principle was conscientiously followed. Therefore, I would affirm the convictions on the substantive counts.

       “Whoever, being a Member of or Delegate to Congress, . . . directly or indirectly receives or agrees to receive, any compensation for any services rendered or to be rendered, either by himself or another, in relation to any proceeding, contract, claim, eontro-versy, charge, accusation, arrest, or other matter in which the United States is a party or directly or indirectly interested, before any department, agency, court martial, officer, or any civil, military, or naval commission, shall be fined not more than $10,000 or imprisoned not more than two years, or both; and shall be incapable of holding any office of honor, trust, or profit under the United States.”

       “If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both.”

       Only the question of the applicability of the Speech or Debate Clause to the prosecution of Johnson is before us. The Court of Appeals affirmed the convictions of co-defendants Edlin and Robinson whose appeals were consolidated with that of Johnson and, except for a brief as amicus curiae submitted by Edlin, questions raised in those eases have not been presented to us. The defendant Boykin took no appeal from his conviction.

       See direct examination by the prosecution of Martin Heflin, App. 182-191, esp. 189-190:
      “Q. What, if anything, did Congressman Johnson do with the material which Mr. Robinson brought in and gave to him? A. As I recall, Mr. Johnson said that his administrative assistant . . . would go over the material, too and if I am not mistaken, Mr. Johnson called him in and Buarque took the material and I left the office with Mr. Buarque to discuss it some more.

      “Q. After that meeting did you at any time thereafter have any contact either with Congressman Johnson or his office with regard to the speech? A. I telephoned a time or two there and I think I was called by Mr. Buarque and asked him about certain figures that the Institute — background material that might be supplied, and I did supply additional material and I believe Mr. Buarque sent me a draft, himself, with certain places, blank places for figures to be filled in. We had a discussion about some of the technical phases [sic] and information, statistical information and so forth.
      “Q. You supplied some of the facts and figures for the draft that Mr. Buarque sent you? A. Yes.
      “Q. What did you do with that draft once you had looked it over? A. Returned it.”
      See also cross-examination of Manual Buarque, App. 488-494; cross-examination of co-defendant Robinson, App. 772-775; cross-examination of defendant Johnson, Transcript 79-93.

       See cross-examination of Johnson, Transcript 84-86:
      “Q. And did you not tell Mr. Heflin when he came to see you in your office after that luncheon that he should work with Mr. Buarque on the preparation of the speech which was ultimately given on June 30? A. My statement is the same as it has always been that Mr. Heflin came to my office, representing himself as a public relations man, for a certain institute of Independent Savings and Loan Associations. He had the article of one of the local newspapers. A very unfair attack which he claimed had been made on savings and loans. He talked with me a very short time. I told him that Mr. Buarque, my administrative assistant, did all of my writing, all of the conversations and if there were any answers to be made, — he went out with me to the next room, met Mr. Buarque and I left the two together.

      “Q. You told him, did you not, that he should work with Mr. Buarque on the matter since Mr. Buarque prepared your speeches? A. I told him at the time to discuss it with Mr. Buarque and any arrangements Mr. Buarque wanted to make, why, he, of course, would be cooperative with him.

      “Q. Now, you say that at that time — I assume you meant at the time of the speech — that one savings association meant nothing more to you than another. Is that what you referred to? A. Not only then but following the speech, too.
      “Q. I believe you testified on direct examination that you did not know the name of First Continental Savings and Loan or First Colony Savings and Loan at the time this speech was delivered on June 30, is that your testimony? A. I think my testimony is that one name did not mean more than another.

      “Q. Now, your speech was finally delivered or submitted to the clerk and it was printed in the Congressional Record, and it stresses the value of commercial mortgage guaranty insurance, does it not? A. I think it has a reference to it, yes.
      “Q. Isn’t it a fact that at the time of the speech, First Continental and First Colony were the only independent savings and loan associations in the State of Maryland which carried commer-eial mortgage guaranty insurance? A. I have no knowledge of that and did not know at the time.
      “Q. You have no knowledge of that? A. None, whatever.
      “Q. As a matter of fact, that language in your speech, Congressman, was a part of the language which Mr. Edlin emphasized in his reprint, was it not? A. May I say that I did not see any of the so-called ‘reprints.’ ”
      And see Transcript 91:
      “Q. Congressman, do you mean to tell the jury that Mr. Buarque put that language in the speech about three indicted institutions and none convicted, and you did not inquire as to which particular institutions they were? A. He did not tell me which they were, the names.
      “Q. Well, let me ask you this: How could you, if you did not know which institutions were under indictment, how could you make this statement in your speech:
      “ T personally do not know any of these institutions nor any of the circumstances leading to their respective indictments. I hold no brief for any of them, one way or another.’
      “That is the language of your speech, is it not? A. Yes, I said that is the prepared speech which had been testified that Mr. Buarque with some help from Heflin, prepared.”

       See Oral Argument on behalf of the Government, Transcript 232-248, esp. 244-245:
      “I submit to you members of the jury, there is no other logical explanation you can make but that that speech was made solely for the purposes of Mr. Kenneth Edlin. It was a day’s work for a day’s pay for the man to whom he was selling his Congressional Office and his Congressional influence.
      “Congressman Johnson has claimed on the stand in this case that he did not then know that the First Colony Savings and Loan Association was then under indictment.
      “Now, you will recall the language in the speech, itself, that out of 400 independent savings and loan associations in Maryland, exactly three of them have been indicted and none convicted.
      “□Personally, I do not know any of these indicted institutions nor any of the circumstances leading to their respective indictments. I hold no brief for any of them one way or the other. [’]
      “Congressman Johnson claimed under oath, Members of the Jury, that he did not even bother to check the facts to ascertain whether he could truthfully make such a statement in his speech.
      “If so, I submit to you, it was utterly and completely irresponsible and reprehensible, but the Government submits that that is not so and that that was not a fact. The Government submits that Congressman Johnson did know at that time that both First Colony and Mr. Edlin were then under indictment in this very Court and that he, nevertheless made those statements in the speech which he delivered on June 30, 1960.
      “Those statements, Members of the Jury, the Government submits were completely untrue and deceitful.”

       See, e. g., cross-examination of Johnson, Transcript 79-81:
      “Q. Now, Congressman, you told Mr. Estabrook on December 20, 1961, in London, did you not, that this speech had been made at the urging of several of your own people or of your own constituents? Is that not a fact? A. Which conference are you speaking of with Mr. Estabrook?

      “Q. As a matter of fact, then, except for Mr. Buarque, whom you term a constituent, no constituent of yours ever spoke to you about making that speech on the floor of the House of Congress, is that not correct? A. It could be. I do not recall.
      “Q, You would be — you would not deny it? A. No.
      “Q. Is it not a fact that prior to that speech Congressman, you had never discussed savings and loan programs or problems with any of your constituents on the Eastern Shore of Maryland? A. Oh, I think possibly I had. I do not know to what degree but I want to say too, that the speech you refer to there was a motivation that Mr. Buarque testified that I was interested in a statewide election for the Senate in 1964.”

       See generally C. Wittke, The History of English Parliamentary Privilege (Ohio State Univ. 1921); Neale, The Commons’ Privilege of Free Speech in Parliament, in Tudor Studies (Seton-Watson ed. 1924).

       Compare The King v. Boston, 33 Commw. L. R. 386 (Austl. 1923); The Queen v. White, 13 Sup. Ct. R. 322 (N. S. W. 1875); Regina v. Bunting, 7 Ont. 524 (1885), for commonwealth cases dealing with the general question of liability of legislators for bribery in distinguishable contexts. See 78 Harv. L. Rev. 1473, 1474.

       The court in that case attempted to distinguish between the true privilege and unlawful conspiracies:
      “And we hereby will not draw the true Liberties of Parliament-men into question; to wit, for such matters which they do or speak in a parliamentary manner. But in this case there was a conspiracy between the Defendants to slander the state, and to raise sedition and discord between the king, his peers, and people; and this was not a parliamentary course.

      “That every of the Defendants shall be imprisoned during the king’s pleasure: Sir John Elliot to be imprisoned in the Tower of London, and the other Defendants in other prisons.” 3 How. St. Tr., at 310.
      See the account in Taswell-Langmead’s English Constitutional History (Plucknett ed. 1960), at 376-378. After the Restoration, some 38 years after the trial, Parliament resolved that the judgment “was an illegal judgment, and against the freedom and privilege of Parliament.” The House of Lords reversed the convictions in 1668. See Taswell-Langmead, supra, at 378, note 55.

       See Holdsworth, supra, at 503-511.

       Compare Thornhill v. Alabama, 310 U. S. 88, and New York Times Co. v. Sullivan, 376 U. S. 254, for expressions of the central importance to our political system of uninhibited political expression as guaranteed to the general populace by the First and Fourteenth Amendments.

       See, e. g., Strode’s Case, one of the earliest and most important English cases dealing with the privilege. In 1512, Richard Strode, a member of Commons from Devonshire, introduced a bill regulating tin miners which appears to have been motivated by a personal interest. He was prosecuted in a local Stannary Court, a court of special jurisdiction to deal with tin miners, for violating a local law making it an offense to obstruct tin mining. He was sentenced and imprisoned. Parliament released him in a special bill, declaring “That suits, accusements, condemnations, executions, fines, amercia-ments, punishments, corrections, grievances, charges, and impositions, put or had, or hereafter to be put or had, unto or upon the said Richard, and to every other of the person or persons afore specified that now be of this present Parliament, or that of any Parliament hereafter shall be, for any bill, speaking, reasoning, or declaring of any matter or matters concerning the Parliament to be communed and treated of, be utterly void and of none effect.” 4 Hen. 8, e. 8, as reproduced in Tanner, Tudor Constitutional Documents 558, 559 (2d ed. 1930); see Taswell-Langmead, supra, at 248-249. During the prosecution of Sir John Eliot in 1629 it was argued that Strode’s Act applied to all legislators, but the court held that it was a private act. 3 How. St. Tr. 294, 309. In 1667 both Houses of Parliament declared by formal resolutions that Strode’s Act was a general law, “And that it extends to indemnify all and every the Members of both Houses of Parliament, in all Parliaments, for and touching all Bills, speaking, reasoning, or declaring of any Matter or Matters in and concerning the Parliament, to be communed and treated of, and is only a declaratory law of the antient and necessary Rights and Privileges of Parliament.” I Hatsell, Precedents of Proceedings in the House of Commons 86-87 (1786); see Taswell-Langmead, supra, at 378, note 55. The central importance of Strode’s case in English constitutional history is persuasive evidence that the parliamentary privilege meant more than merely preventing libel and treason prosecutions.

       The Government, however, did introduce a reprint of the speech in its ease-in-chief, in order to show how the co-conspirators made use of it. Certain portions were shown to be outlined in red because, as the prosecution’s witness testified, “these were the points most pertinent to what we were trying to put across and for ease in the person’s reading it.” App. 259. The use of a copy of the speech in this context necessarily required the jury to read those portions and to reflect upon its substance.

       Cf. Note, The Bribed Congressman’s Immunity from Prosecution, 75 Yale L. J. 335, 347-348 (1965).

       In oral argument, government counsel stated as follows:
      “And so the question that we brought to the Court, and the only question that we think is properly involved in this case now, revolves around the taking of money to give a speech on the floor of Congress.”
      Question from the Bench: “Well, was there [to be] a new trial on the other phase of it?”
      Government Counsel: “It [the Court of Appeals] ordered a new trial on the other phase. And we have not brought that issue here. We reserved it in our petition but we did not argue it, I might say largely because it cannot be determined without reading the whole record. The question in this case which we did bring here, and which we think is the question involved, is this: Article 1, Section 6, of the Constitution provides that for any speech or debate in either House, no member of Congress shall be questioned in any other place. And as we view it, the question is, does that Speech or Debate Clause mean that Congress is without power under the Constitution to make it a crime triable in court for a Congressman to take money to make a speech?”

       1 confess to some surprise that the Government almost abandoned these issues when in this Court, even though the major question in the case is the application of the Speech or Debate Clause. In the first place, this Court has not had occasion to deal with the conflict of interest statutes as applied to a Member of Congress since 1906, Burton v. United States, 202 U. S. 344, and they remain viable although lately revised, see Manning, Federal Conflict of Interest Law 14 — 73 (1964). Moreover, the Government itself has argued strenuously and successfully in many cases that an erroneous conviction on one count does not vitiate a conviction on other counts, especially where concurrent sentences are involved, see, e. g., United States v. Romano, 382 U. S. 136; United States v. Gainey, 380 U. S. 63, 65; Sinclair v. United States, 279 U. S. 263, 299; Barnard v. United States, 342 F. 2d 309 (C. A. 9th Cir.), certiorari denied, 382 U. S. 948. There are, in addition, numerous cases in which the issue was raised in this Court and the petitioner-defendant was denied certiorari.

       The sentence given was lenient — six months on each count, but all to run concurrently. The conspiracy statute, 18 U. S. C. § 371, authorizes a five-year prison term and a $10,000 fine, and the conflict of interest statute in effect at the trial permitted a two-year sentence and a $10,000 fine for each violation, 18 U. S. C. § 281.


author: Mr. Justice Harlan

text:
    IDAHO SHEET METAL WORKS, INC. v. WIRTZ, SECRETARY OF LABOR.
    No. 30.
    Argued December 8, 1965.
    Decided February 24, 1966.

      Eli A. Weston argued the cause for petitioner in No. 30. On the brief was T. H. Eberle.

      Bessie Margolin argued the cause for petitioner in No. 31. With her on the briefs were Solicitor General Marshall, Ralph S. Spritzer, Philip B. Heymann, Charles Donahue and Caruthers G. Berger.

      Charles Donahue argued the cause for respondent in No. 30. With him on the brief were Solicitor General Marshall, Philip B. Heymann, Bessie Margolin, Robert E. Nagle and Caruthers G. Berger.

      Lucius E. Burch, Jr., argued the cause for respondents in No. 31. With him on the brief was Tom Mitchell, Jr.

      Together with No. 31, Wirtz, Secretary of Labor v. Steepleton General Tire Co., Inc., et al., on certiorari to the United States Court of Appeals for the Sixth Circuit.

   Mr. Justice Harlan

delivered the opinion of the Court.

The common question presented by these two cases is the meaning of the phrase “retail or service establishment” as that language is used in the exemptive provisions of the federal wage and hour statute. We first set forth the statute and describe the two cases before us, then examine the history and content of the exempting clause, and finally apply the resulting analysis to the facts of each case.

I.

The Fair Labor Standards Act of 1938 enacted a comprehensive scheme providing for minimum wages and overtime pay for workers “engaged in” or “in the production of goods for” interstate and foreign commerce. Among other exemptions, Congress by § 13 (a) (2) of the Act has excluded from the statute’s wage and hour protections those employees working for certain “retail or service” establishments. To qualify for this exemption in its present form, an establishment must meet three tests: first, it must make more than 50% of its annual dollar volume of sales of goods or services within the State; second, it must meet one of four tests designated “(i)-(iv),” chiefly designed to prevent most very large employers from enjoying the exemption; third, it must be a “retail or service establishment.” Regarding this third requirement — which is the focus of this decision — § 13 (a)(2) states that “[a] ‘retail or service establishment’ shall mean an establishment 75 per centum of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry.”

Of the cases before us, the first one, No. 30, stems from two consolidated actions brought by the Secretary of Labor against Idaho Sheet Metal Works, Inc. (Idaho Sheet). By one action the Secretary sought to enjoin future disregard of the Act’s overtime provisions, and by the other he sought to collect on behalf of one employee unpaid overtime compensation for a period during the year 1960. See §§ 15-17, 52 Stat. 1068-1069, as amended, 29 U. S. C. §§ 215-217 (1964 ed.). The ensuing litigation established that Idaho Sheet operates a plant in Burley, Idaho, where it employs about 12 workers to fabricate, install, and maintain sheet metal products. Many articles are sold to individuals, farmers, and local merchants, the plant has display racks to show its wares, and about 60 %■ of sales in number are said to be to “the general public” as opposed to industrial customers. About 83% of the gross income, however, is derived from metal work done on equipment used by five potato processing companies which dehydrate and freeze the potatoes for interstate shipment.

For its defense, Idaho Sheet denied its workers were engaged in or producing goods for interstate commerce. It also claimed to be an exempt retail or service establishment, adducing proof that over 75% of its dollar volume of sales was not for resale and that its officials and salesmen who sell to it regarded the business as retail. The District Court held that Idaho Sheet was outside the interstate commerce coverage of the Act and was in any case exempt. The Court of Appeals for the Ninth Circuit reversed on both points and held in favor of the Secretary. 335 F. 2d 952. We granted certiorari limited to the question whether Idaho Sheet was a retail or service establishment within the meaning of the Act. 380 U. S. 905.

In the other case before us, No. 31, the Secretary of Labor sued the Steepleton General Tire Company (Steepleton) and its president to require compliance with the minimum wage, overtime pay, and record-keeping provisions of the Act. Steepleton, which is located in Memphis, Tennessee, and employs about 47 workers, is a franchised tire dealer engaged in the sale, recapping, and repair of tires. Some of Steepleton’s income derives from dealings with private customers but more than half the gross income comes from sales and repairs of tires furnished to businesses operating heavy industrial or construction vehicles or operating fleets of trucks; apparently a sizable though unspecified portion of these commercial customers operated their equipment in interstate commerce.

The District Court determined that Steepleton came within the interstate commerce coverage of the Act, and that issue is no longer in the case. Alleging itself to be exempt under § 13 (a)(2), Steepleton showed that 75% or more of its sales were not for resale and that the industry’s predominant and long-standing use of the word retail applied that term to all tire sales not for resale, despite the commercial character of the tires and the established pattern of quantity discounts. The only explanation offered for this use was that it conformed to many state sales tax statutes. The Secretary showed that the industry sometimes used the word retail in other senses that excluded commercial sales and that commercial customers of Steepleton did not regard their purchases as retail transactions. The District Court held Steepleton to be entitled to the exemption. The Court of Appeals for the Sixth Circuit affirmed the District Court in all respects, 330 F. 2d 804, and we granted certiorari at the behest of the Secretary to consider whether Steepleton qualified as a retail or service establishment. 380 U. S. 904.

The approach of the Sixth Circuit, which took industry usage as controlling, and that of the Ninth Circuit, which rejected it as the sole test, represent irreconcilable interpretations of the critical statutory language. While support can be mustered for both views, we believe the Ninth Circuit is correct and on this point follow our earlier decision in Mitchell v. Kentucky Finance Co., 359 U. S. 290. After rejecting the industry’s usage as controlling, we face the further difficult question of what criteria do determine when business transactions are retail under the Act; to this question it is still less easy to return a clear-cut answer, but our analysis of the matter leads us to conclude that neither Idaho Sheet nor Steepleton qualifies as a retail or service establishment.

II.

To construe the present language of the exemption demands a knowledge of its origins. Section 13 (a)(2), as it appeared in the 1938 enactment, used the present phrase “retail or service establishment” to delimit the exemption but did not further define the concept. The Department of Labor’s Wage and Hour Administrator initially made his interpretation of the retail exemption known through an Interpretative Bulletin and through various official statements. To summarize very generally, the Administrator viewed a retail establishment as one selling goods or services to private individuals for personal or family consumption; sales of these same goods or services to businesses or state agencies remained retail if sold at the normal price charged private consumers or in quantities a private consumer would buy. See Interp. Bull. No. 6, ¶ 14, in 1942 WH Manual, p. 330. However, there were deviations from this consumer-goods standard in favor of employers, notable instances being the exemption of farm implement dealers and linen supply firms supplying commercial customers. See Statements of the Administrator, in 1944-1945 WH Manual, pp. 469-470.

In 1946 this Court decided Roland Co. v. Walling, 326 U. S. 657, holding inter alia that a business engaged in commercial wiring, electrical contracting for industry, and repair and replacement of electric motors and generators did not constitute a retail or service establishment. The opinion used considerable language suggesting that no sale of any article for business or profit-making use as opposed to personal consumption could qualify as a retail sale, a position which supported the result but went far beyond a necessary holding. See 326 U. S., at 673-677. This case, and several others in this vein, prompted the Administrator to report to Congress that certain hitherto exempt classes of business were endangered — notably farm equipment dealers — and to recommend amending legislation. See 1948 Wage and Hour Division, Annual Report, pp. 120-121.

The Administrator proposed, so far as immediately relevant, to define a retail establishment as one deriving 75% of its income from retail sales and then to define as retail sales those made to private individuals for personal or family consumption, sales of the same items to any other customer if not for resale and if similar in type and quantity, and sales to farmers of goods of the type and quantity used on the ordinary farm. When Congress convened in 1949, a number of bills were introduced to amend the Act in various respects. The bill reported out by the House committee and the substitute measure first debated by the House adopted the Administrator’s basic proposal, but a further substitute backed by an opposing coalition and introduced as an amendment during the debates finally prevailed and was sent to the Senate. This bill as passed contained the definition of exempt retail and service establishments that became law in 1949 and which remains the law today. The Senate during the debate of its own committee-reported bill, which did not amend the retail exemption, amended the Senate bill to conform to the House’s revision of §13 (a)(2). Thus, when the House-Senate conference committee met to iron out other differences in the respective versions of the legislation, uniformity in the amendment to § 13 (a) (2) already existed. The debates on the retail exemption in each House were substantial and several legislative documents construe the amended section.

In light of the legislative history, the first question to be faced is whether the 1949 amendment requires the Secretary to treat as retail any sale of goods or services not for resale that is most customarily described or labeled as a retail transaction by those in the industry, acting of course in good faith. If the answer were yes, then both Idaho Sheet and Steepleton would deserve exemptions without more ado, since admittedly the predominant or sole usage of those in the industry applied the term retail to the questioned sales. It should not be said that this reading is without support. Most importantly, it would appear to follow from the most literal reading of the statute; the phrase “recognized as retail ... in the particular industry” well lends itself to an inquiry into how the businessmen concerned term their dealings. Some statements in the debates explicitly foster this reading, for example, the comment by Senator Holland who sponsored the amendment in the Senate that under his approach, “for different commodities ... we have to find the definition which is understood by the people dealing in that industry.” 95 Cong. Rec. 12519. We do not agree with the Government that this reading is necessarily infirm because the Secretary and courts may have to seek a standard or predominant use of the word retail among several uses extant in the industry. Certainly we do not agree with the further suggestion that this literal reading must give the industry self-determination as to whether the exemption applies; courts are not incompetent to distinguish between a legitimized usage fixed by established practice and one recently instituted with the aim of avoiding the law.

On balance, however, the arguments against this literal reading are more persuasive. At the start, such a reading would attribute to Congress a purpose going well beyond its reiterated explanation that the amendment was designed to overturn the sweeping principle of the Roland case. The legislative history is replete with evidence that the target of the amendment was Roland’s proposition that no sale to a business purchaser could be a retail sale, which Senator Holland condemned by comparing the different status it gave to the sale of a batch of towels to a housewife and the same sale to a hotelkeeper. 95 Cong. Rec. 12494. Further, for every suggestion in the debates that Congress intended also wholly to revamp the exemption by substituting an overriding industry-usage test, there are statements that point in the other direction. Thus, Senator Holland observed that his amendment would not undo the commonly held view that quantity sales at discount prices are generally nonretail. It was said that the “recognizing” is done by the Administrator and the courts as well as the merchant, 95 Cong. Rec. 12510 (remarks of Senator Holland), and that due weight must be given to the “actual practice” in the industry, Senate Conf. Majority Statement, 95 Cong. Rec. 14877, and the “well-settled habits of business,” 95 Cong. Rec. 12510 (remarks of Senator Holland). The lists set forth of potentially retail businesses include almost only those selling consumer goods and services. See House Conf. Rep., p. 25 (quoted p. 203, infra); 95 Cong. Rec. 11003-11004 (remarks of Mr. Lucas); 95 Cong. Rec. 12502 (remarks of Senator Holland). There are denials that the industries’ own interpretations of a retail sale will be decisive.

The conclusive consideration for us in rejecting the industry-usage test is that it would compel results flatly inconsistent with those Congress explicitly contemplated and might indeed work a major revolution in the Act’s coverage not acknowledged in any legislative statement or report before us. The prime example of this threatened inconsistency is the problem presented to this Court in 1959 by Mitchell v. Kentucky Finance Co., 359 U. S. 290, where a business making small personal loans and purchasing conditional sale contracts from retailers claimed to be an exempt retail or service establishment. Although the company introduced persuasive evidence that the industry regarded its transactions as retail, the Court denied the exemption in the face of the legislative history indicating a limited purpose for the 1949 amendment and containing an express statement that “[t]he amendment does not exempt banks, insurance companies, building and loan associations, credit companies, newspapers, telephone companies, gas and electric utility companies, telegraph companies, etc., because there is no concept of retail selling or servicing in these industries.” House Conf. Rep., pp. 25-26. See Senate Conf. Majority Statement, 95 Cong. Rec. 14877. If weight is to be given to statements about the nonretail status of quantity sales at discounts, see n. 14, supra, congressional intent would be similarly frustrated by the truck tire industry’s retail designation of all sales not for resale no matter how great the quantity and discount. In view of the use of the word retail in the truck tire and credit industries, it would hardly be surprising to find that newspaper, telephone, or gas and electric companies label their sales to consumers as retail. Yet the legislative history is so explicitly opposed to the extension of the retail exemption to such businesses as to provide the final argument against adopting an industry-usage test that could dictate that result.

Since we reject the industry’s usage as the single touchstone, the question arises what meaning is to be given to the term retail. In approaching this question we agree with the Secretary that it is generally helpful to ask first whether the sale of a particular type of goods or services can ever qualify as retail whatever the terms of sale; if and only if the answer is affirmative is it then necessary to determine the terms or circumstances that make a sale of those goods or services a retail sale.

Plainly the typical retail transaction is one involving goods or services that are frequently acquired for family or personal use. As examples of sales that could qualify as retail, the House Conference Report lists those made “by the grocery store, the hardware store, the coal dealer, the automobile dealer selling passenger cars or trucks, the clothing store, the dry goods store, the department store, the paint store, the furniture store, the drug store, the shoe store, the stationer, the lumber dealer, etc. . . .” House Conf. Rep., p. 25 (sale of farm machinery is another example given). See also 95 Cong. Rec. 11003-11004 (remarks of Mr. Lucas); 95 Cong. Rec. 12502 (remarks of Senator Holland). Of course Congress’ conceded intent to overrule the Roland principle means sales of such goods or services can be retail “whether made to private householders or to business users,” House Conf. Rep., p. 25, but the goods and services listed nearly all share the common characteristic that they are often purchased by householders. The legislative recital of telephone, gas and electric, and credit companies along with a number of others as businesses outside the exemption, see p. 202, supra, demonstrates that not everything the consumer purchases can be a retail sale of goods or services, but the breadth of this qualification need not here be explored.

What is important for this decision is that Congress also intended that the retail exemption extend in some measure beyond consumer goods and services to embrace certain products almost never purchased for family or noncommercial use. An indisputable example is the sale of farm implements. See House Conf. Rep., p. 25. Another instance is trucks, at least of some varieties, whose “retailability” is assumed in the legislative history, e. g., 95 Cong. Rec. 12497 (remarks of Senator Holland), and confirmed by the presence of another exemption in the Act that would otherwise be difficult to understand. See also 95 Cong. Rec. 12495 (remarks of Senator Holland) (retailability of modest office desk). We cannot draw a precise line between such articles and those like industrial machinery which can never be sold at retail, see House Conf. Rep., p. 26, but a few characteristics of items like small trucks and farm implements may offer some guidance: their employment is very widespread as is that of consumer goods; they are often distributed in stores or showrooms and by means not dissimilar to those used for consumer goods; and perhaps it can be said that they are very frequently used in commercial activities of limited scope. While the list of strictly commercial items whose sale can be deemed retail is presumably very small, their existence precludes use of the uncomplicated “consumer goods” test proposed by the Administrator in 1949. See pp. 197-198, supra.

Within the category of goods and services that can be sold at retail, naturally not every sale can be so classified. The exemption itself excludes any sale for resale and beyond that, references in the legislative history, n. 14, supra, and common parlance certainly suggest that the term retail becomes less apt as the quantity and the price discount increase in a particular transaction. Again, we do not believe the word usage of the industry' must be given conclusive force. The legislative comments on discounting just cited are to the contrary; and the statute cannot easily be read to make usage control whether a particular sale is rétail after we have rejected that test in deciding whether sale of a given item can ever be retail. The Secretary has in fact quite properly looked carefully at usage and practice in each industry before taking a position, 29 CFR § 779.323 (1965), but he cannot be hamstrung by the terminology of a particular trade. In view of the diversity of structure and marketing practices in different industries, flexibility is certainly appropriate, and we do not here further attempt to adduce general rules. We do note that the considerable discretion possessed by the Secretary as the one responsible for the actual administration of the Act should not be understressed. Boutell v. Walling, 327 U. S. 463, 471; see United States v. American Trucking Assns., 310 U. S. 534, 549.

III.

In light of the premises now established, resolution of the two cases before us can be accomplished readily. Turning first to Idaho Sheet Metal Works, we believe it is disqualified as a retail establishment by the 83% of its gross income derived from metal work relating to the potato processing equipment. The company has stressed the wide public it serves, the display racks and other retail facilities in its building, the irregular intervals at which work on the potato equipment is performed, and the company’s lineage tracing back to the “tin shops” of yesterday. All these factors may bear upon the classification of its other sales, and if those were its sole business or three-quarters of it the company might well deserve the exemption. But § 13 (a) (2) is explicit in its treatment of establishments whose sales are variegated: a business is characterized by its sales and no more than 25% of the dollar volume may derive from sales designated nonretail without loss of the exemption. See n. 2, supra. In this instance 83% of the gross income is made by sale or servicing of the potato processing equipment and we do not believe those transactions before us can be labeled retail whatever the particular terms.

This last conclusion follows naturally from the admitted facts. The pretrial order described the potato equipment fabricated and maintained by Idaho Sheet as vats, storage tanks, hoods, elevator buckets, and chutes. Hoods were described at trial by one purchaser as being “five feet square on the bottom and about four feet high where they go to the vent stacks.” He also testified that the tanks held as much as “5,000 pounds of peeled potatoes,” and that chutes were about 12 feet long. If this testimony is not fairly representative of the nature of the equipment under scrutiny, there is no indication of that from Idaho Sheet, upon which lies the burden of establishing the facts requisite to an exemption. Arnold v. Ben Kanowsky, Inc., 361 U. S. 388. The type of equipment described plainly appears to have no private or noncommercial utility. Nor does it bear much resemblance to those strictly commercial articles earlier named that may be sold at retail. Unlike small trucks and fa,rm equipment, the market for these goods is highly limited, and far from being stock items purchased off the shelf, these articles were generally fabricated to meet individual specifications. In the 83% of its business relating to the potato equipment, Idaho Sheet seems hardly distinguishable from “an establishment engaged in the sale and servicing of manufacturing machinery and manufacturing equipment used in the production of goods,” which the House Conference Report flatly stated could not be exempt. House Conf. Rep., p. 26. Since in our view this potato equipment cannot be the subject of a retail sale, we have no occasion to consider the company’s claim that the pricing and quantity of its particular sales of the equipment conform to retail standards.

The second case, involving the Steepleton tire business, is in some respects more intricate. The Government has alleged, and Steepleton does not deny, that better than half the company’s dollar volume derives from sales to companies operating fleets of commercial vehicles and other heavy industrial machinery such as earth-moving equipment. The Government’s first ground for withholding the exemption is that tire transactions relating to large trucks and industrial vehicles are intrinsically nonretail whatever the terms. It analogizes these vehicles to industrial machinery and then would treat the tires just as the trucks. And it stresses the ties between these vehicles and interstate commerce.

Admitting that the argument has force, we do not accept it. Among the few strictly commercial articles that Congress pretty plainly viewed as retailable were trucks in at least some varieties, as we have already shown. No reason appears why the sale of tires for those trucks should be distinguished and not allowed to qualify as retailable items. The strength of the Government’s position lies in its readiness to separate big trucks and tires from little trucks and tires. The Secretary, however, seemingly has chosen not to classify truck tires on this basis but instead treats all truck tires as capable of being sold at retail. A decision of this kind, no doubt turning in part on problems of administration and facets of industry practice, clearly implicates the Secretary’s discretion, and we see no cause to disturb its exercise in this case.

Steepleton is, nevertheless, deprived of the retail establishment exemption because — as the Government alternatively contended — it has failed to show that the tire dealings in question were made on terms and in circumstances that qualify them as retail within the Secretary’s guidelines. The guidelines class as nonretail all sales to fleets of five or more vehicles at “wholesale prices,” a wholesale price being defined as that charged on sales for resale or on sales to 10-vehicle fleets. See n. 18, supra. These guidelines, reportedly designed after inquiry into industry practices, are quite evidently aimed at excluding from the retail category sales generally made at significant discounts and in quantity. Given the common conception of the term retail and references in the legislative history to discount sales, see n. 14, supra, we see no reason not to sustain these guidelines; indeed, the company does not even appear to discuss them, save as is implicit in its claims that the Secretary’s position here does not correspond to word usage in the industry.

In concluding that Steepleton has not proved itself exempt, a certain indefiniteness in the record should be noted. The Government showed at trial that many of the sales were to large fleets, that a number of purchasers said they received discounts, that the practice in the industry was to grant significant discounts for fleet sales, that some sales were for resale or pursuant to bids to public agencies, and pointed out other facts directed at showing nonexemption under the guidelines. Despite this evidence, there is unclarity as to the precise percentages of dollar volume attributable to the various sales that the guidelines label nonretail. However, the burden of proof respecting exemptions is upon the company, as earlier indicated, and since we uphold the Secretary’s test, that burden has not been met. If Steepleton had alleged on appeal that it could meet the Secretary’s standards if they prevailed, even then we would hesitate to order a remand since the Secretary’s position has been known from the outset. In all events, Steepleton has not even claimed in this Court that the Secretary’s standards could be met.

The judgment of the Court of Appeals in No. 30 is affirmed; the judgment of the Court of Appeals in No. 31 is reversed.

It so ordered.

       52 Stat. 1060, as amended, 29 U. S. C. §§201-219 (1964 ed.). Sections 6-7, codified as §§ 206-207, respectively cover minimum wages and overtime pay. The commerce coverage of the Act, through a special definition of “production,” is drawn in generous terms. See §3 (j), codified as §203 (j).

       52 Stat. 1067, as amended, 29 U. S. C. §213 (a)(2) (1964 ed.). The section provides that the minimum wage and overtime pay provisions of the Act shall not apply to:
      “(2) any employee employed by any retail or service establishment, more than 50 per centum of which establishment’s annual dollar volume of sales of goods or services is made within the State in which the establishment is located, if such establishment—
      “. . . [meets one of four tests, designated ‘(i)-(iv)’ and framed with reference to another section of the Act].
      “A 'retail or service establishment’ shall mean an establishment 75 per centum of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry.”

       This requirement has been met by the companies in this case. Section 13 (a) (4) of the Act, added in 1949 by 63 Stat. 917, 29 U. S. C. §213 (a)(4) (1964 ed.), provides that an establishment that makes or processes the goods it sells may qualify as exempt if it meets the tests of § 13 (a) (2) and “is recognized as a retail establishment in the particular industry” and makes more than 85% of its annual dollar volume of sales of such goods within the State. So far as the companies in this ease may be deemed to make or process the goods they sell, the Government is apparently satisfied that the added requirements of § 13 (a) (4) have been met or at least is unwilling to rely upon them.

       These four tests were added to § 13 (a) (2) in 1961 by 75 Stat. 71. The Government has not suggested that this amendment would disqualify either of the companies in the present case.

       The 1938 version read: “(a) The provisions of sections 6 and 7 shall not apply with respect to . . . (2) any employee engaged in any retail or service establishment the greater part of whose selling or servicing is in intrastate commerce.” 52 Stat. 1067.

       This Bulletin, designated No. 6, appears along with other official statements in various editions of the BNA Wage and Hour Manual (hereafter cited as WH Manual), e. g., 1942 edition. The Secretary’s present views are stated in 29 CFR §§ 779-779.515 (1965).

       See Martino v. Michigan Window Cleaning Co., 327 U. S. 173; Boutell v. Walling, 327 U. S. 463. See also McComb v. Factory Stores Co., 81 F. Supp. 403; McComb v. Diebert, 16 CCH Labor Cas. ¶ 64,982.

       The bill reported out of committee was H. R. 3190, 81st Cong., 1st Sess., accompanied by H. R. Rep. No. 267. The first substitute was H. R. 5856, brought to debate by EL Res. 183. The final, successful version retained the number H. R. 5856 but was drawn from H. R. 5894. See generally 6 Lab. Rel. Rep., p. 90:459 (1961).

       The only difference between the 1949 version of § 13 (a) (2) and current law derives from the 1961 amendment to the section, which is not relevant in this case. See n. 4, supra, and accompanying text.

       The bill reported out of committee was S. 653, 81st Cong., 1st Sess., accompanied by S. Rep. No. 640. The amendment was offered at 95 Cong. Rec. 12491 and passed at 95 Cong. Rec. 12520.

       The principal debates appear at various points in 95 Cong. Rec. 11002-11203 (House), 12490-12520 (Senate). No initial committee reports discuss the ultimately successful version of § 13 (a) (2) but a pertinent statement of the House members of the conference eommittee appears in H. R. Conf. Rep. No. 1453, 81st Cong., 1st Sess., pp. 24-26 (hereafter cited as House Conf. Rep.). There is also a relevant but less authoritative statement of the majority of Senate conferees (hereafter cited as Senate Conf. Majority Statement) appearing at 95 Cong. Rec. 14877.

       Other comments in some measure favoring the most literal construction are those assuming that each industry has an established understanding of what is a retail sale, e. g., 95 Cong. Rec. 12502 (remarks of Senator Holland), 12516 (remarks of Senator Taft); those few which seem to equate “recognized as retail” with “regarded as retail,” 95 Cong. Rec. 11003 (remarks of Mr. Lucas, sponsor of the prevailing version in the House), 12502 (remarks of Senator Holland); and one or two suggesting that a discount sale may qualify as retail, 95 Cong. Rec. 11003 (remarks of Mr. Lucas), 11199 (remarks of Mr. McConnell).

       See House Conf. Rep., p. 24 (“This clarification [the amended §13 (a)(2)] is needed in order to obviate the sweeping ruling of the Administrator and the courts that no sale of goods or services for business use is retail. See Roland Electrical Co. v. Walling . . . .”); 95 Cong. Rec. 11003 (remarks of Mr. Lucas); 95 Cong. Rec. 11203 (remarks of Mr. Celler).

       “Of course if ... [a sale is ‘made in such quantity that discounts are allowed’] it comes in the category of wholesale sales.” 95 Cong. Rec. 12501. Perhaps more ambiguously, Senator Holland also stated: “If sales were made in sufficient quantity so there would be a discount and they would be regarded not as retail sales, but as wholesale sales, they would lose their exemption.” 95 Cong. Rec. 12497. See also 95 Cong. Rec. 12505. But cf. 95 Cpng. Rec. 11003 (remarks of Mr. Lucas).

       “Mr. DOUGLAS. I understand that the interpretation which would be made would be that given to 'retail sale’ by a trade association.
      “Mr. HOLLAND. That is one criterion, of course; but I do not believe the Senator from Illinois, and certainly not the Senator from Florida, would wish to delegate full authority in the matter to a trade association or any other interested group.” 95 Cong. Rec. 12501.
      See also 95 Cong. Rec. 12510 (remarks of Senator Holland).

       Section 13 (a) (19), added in 1961 by 75 Stat. 73, 29 U. S. C. § 213 (a) (19) (1964 ed.), exempts from the minimum wage and overtime pay requirements “any employee of a retail or service establishment which is primarily engaged in the business of selling automobiles, trucks, or farm implements” regardless of whether the establishment meets the further tests of §13 (a)(2), notably those added in 1961, see n. 4, supra, and accompanying text. Quite evidently this section contemplates that a business primarily selling trucks may be a retail establishment.

       The company relies upon Wirtz v. Modern Trashmoval, Inc., 323 F. 2d 451, in which the Fourth Circuit as an alternative ground of decision held a trash collection business to be a retail or service establishment under the Act. We need go no further than to say the case is quite distinguishable; trash removal is not only a widespread need in the commercial world but is required by private families.

       29 CFR §779.373 (1965) relevantly provides that for purposes of § 13 (a) (2) “all sales of tires, tubes, accessories and tire repair services, including retreading and recapping” are classified as retail, with a series of exceptions including:
      “(d) Sales to fleet accounts at wholesale prices: ... a ‘fleet account’ is a customer operating five or more automobiles or trucks for business purposes. Wholesale prices ... are prices equivalent to, or less than, those typically charged on sales for resale. ... If the establishment makes no sales of truck tires for resale, the wholesale price . . . [is] the price charged ... on sales of truck tires to fleet accounts operating 10 or more commercial vehicles, or if the establishment makes no such sales ... [it is] the price typically charged in the area on [such] sales . . . .”


author: Per Curiam.

text:
    SWANN et al. v. ADAMS, SECRETARY OF STATE OF FLORIDA, et al.
    No. 973.
    Decided February 25, 1966.

      D. P. S. Paul, P. D. Thomson, Neal Rutledge, Richard F. Wolfson, Thomas C. Britton and Stuart Simon for appellants.

      Earl Faircloth, Attorney General of Florida, and Edward D. Cowart and Sam Spector, Assistant Attorneys General, for appellees.
   Per Curiam.

We previously remanded this case to the District Court for further proceedings in light of Reynolds v. Sims, 377 U. S. 533, and the other cases relating to legislative reapportionment decided with Reynolds. 378 U. S. 553. The District Court deferred action until the conclusion of the legislative session which convened on April 6, 1965, stating that it would reconsider its decision should the Florida Legislature fail to effect a valid reapportionment by July 1, 1965.

A reapportionment law was passed by the legislature on June 29, 1965. On July 6 the appellants filed a joint petition asking the District Court to declare the newly enacted plan unconstitutional and proposing an alternative plan. The District Court did not take action until October 5 when it ordered oral argument for November 2, 1965. On December 23 the District Court concluded that the newly passed reapportionment plan failed to “meet the requirements of the Equal Protection Clause of the Federal Constitution as construed and applied in Reynolds v. Sims . . . .”

Although the District Court concluded that the plan did not comport with constitutional requirements, it approved the plan (making only minor changes) on an interim basis. Its approval was limited to the period ending 60 days after the adjournment of the 1967 session of the Florida Legislature.

We have no occasion to review the District Court’s determination that the legislative reapportionment plan fails to meet constitutional standards. Indeed, Florida does not contend that the District Court erred in this regard, having conceded below that the plan was constitutionally deficient. We hold, however, that in approving the plan on an interim basis, the District Court erred. This litigation was commenced in 1962. The effect of the District Court’s decision is to delay effectuation of a valid apportionment in Florida until at least 1969. While recognizing the desirability of permitting the Florida Legislature itself to determine the course of reapportionment, we find no warrant for perpetuating what all concede to be an unconstitutional apportionment for another three years.

We reverse and remand to the District Court so that a valid reapportionment plan will be made effective for the 1966 elections.

Reversed and remanded.

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

Mr. Justice Fortas took no part in the consideration or decision of this case.


author: Mr. Chief Justice Warren

text:
    CARNATION CO. v. PACIFIC WESTBOUND CONFERENCE et al.
    No. 20.
    Argued November 8, 1965.
    Decided February 28, 1966.

      Arthur B. Dunne argued the cause for petitioner. With him on the briefs was James R. Baird, Jr.

      Edward D. Ransom argued the cause for respondent Pacific Westbound Conference. With him on the brief was R. Frederic Fisher. Elkan Turk, Jr., argued the cause and filed a brief for respondents Far East Conference et al. Daniel M. Friedman argued the cause for the United States and the Federal Maritime Commission. On the brief were Solicitor General Marshall, Assistant Attorney General Turner, Philip B. Heymann, Irwin A. Seibel and Milan C. Miskovsky.

   Mr. Chief Justice Warren

delivered the opinion of the Court.

We granted certiorari in this case in order to determine whether the Shipping Act, 1916, 39 Stat. 728, as amended, 75 Stat. 762, 46 U. S. C. §§ 801-842 (1964 ed.), precludes the application of the antitrust laws to the shipping industry.

The petitioner in this case is a shipper in foreign commerce that ships substantial quantities of evaporated milk from the West Coast of the United States to the Philippine Islands. The respondent conferences are associations of shipping companies that establish rates for their respective members pursuant to agreements approved by the Federal Maritime Commission. Pacific Westbound Conference is composed of companies operating between the West Coast and the Far East; Far East Conference, of companies operating between the Atlantic and Gulf Coasts and the Far East.

In 1957, Pacific Westbound announced a rate increase of $2.50 per ton for the shipment of evaporated milk to the Philippine Islands. Petitioner attempted to persuade Pacific Westbound to restore the original rate, but Pacific Westbound declined to do so until 1962.

Petitioner filed an antitrust treble-damage action against the respondent conferences and their respective members shortly after the original rate was restored. Petitioner alleged that Pacific Westbound initiated and maintained the rate increase in order to implement certain rate-making agreements between the conferences which have never been approved by the Maritime Commission. Petitioner also alleges that it asked Pacific Westbound to restore the original rate and that Pacific Westbound refused to do so only because Far East would not agree to it. Petitioner claimed that it is entitled to recover treble damages because the implementation of such unapproved agreements is unlawful per se under the antitrust laws.

Respondents moved to dismiss, claiming that the Shipping Act, 1916 repealed all antitrust regulation of the rate-making activities of the shipping industry. The District Court granted the motion. The Court of Appeals for the Ninth Circuit affirmed the dismissal of the action on the ground that such an action cannot be maintained until the Commission has passed upon the agreements, 336 F. 2d 650. We granted certiorari, 380 U. S. 905, and hold that the implementation of rate-making agreements which have not been approved by the Federal Maritime Commission is subject to the antitrust laws.

The Shipping Act contains an explicit provision exempting activities which are lawful under § 15 of the Act from the Sherman and Clayton Acts. This express provision covers approved agreements, which are lawful under § 15, but does not apply to the implementation of unapproved agreements, which is specifically prohibited by § 15. The creation of an antitrust exemption for rate-making activities which are lawful under the Shipping Act implies that unlawful rate-making activities are not exempt. This Court so interpreted an analogous provision of the Agricultural Marketing Agreement Act of 1937, 50 Stat. 246, 7 U. S. C. § 601 et seq. (1964 ed.), exempting marketing agreements approved by the Secretary of Agriculture from the antitrust laws. The Court there declared that the “explicit provisions requiring official participation and authorizations show beyond question how far Congress intended that the Agricultural Act should operate to render the Sherman Act inapplicable. If Congress had desired to grant any further immunity, Congress doubtless would have said so.” United States v. Borden Co., 308 U. S. 188, 201.

Respondents contend, nevertheless, that the § 15 exemption does not reflect the true intent of the Congress which enacted it. They insist that the structure of the Act and its legislative history demonstrate an unstated legislative purpose to free the shipping industry from the antitrust laws.

We do not believe that the remaining provisions of the Shipping Act can reasonably be construed as an implied repeal of all antitrust regulation of the shipping industry’s rate-making activities. We recently said: “Repeals of the antitrust laws by implication from a regulatory statute are strongly disfavored, and have only been found in cases of plain repugnancy between the antitrust and regulatory provisions.” United States v. Philadelphia National Bank, 374 U. S. 321, 350-351. We have long recognized that the antitrust laws represent a fundamental national economic policy and have therefore concluded that we cannot lightly assume that the enactment of a special regulatory scheme for particular aspects of an industry was intended to render the more general provisions of the antitrust laws wholly inapplicable to that industry. We have, therefore, declined to construe special industry regulations as an implied repeal of the antitrust laws even when the regulatory statute did not contain an accommodation provision such as the exemption provisions of the Shipping and Agricultural Acts. See, e. g., United States v. Philadelphia National Bank, supra.

The historical background of the Shipping Act does not indicate that a different rule of construction should be applied in interpreting that Act. The Congress which enacted the Shipping Act was not hostile to antitrust regulation. On the contrary, the Shipping Act was the end product of an extensive investigation of the shipping industry that was conducted by the Congress which enacted the Clayton Act.

Respondents claim, nonetheless, that the Committee which conducted the investigation must have been hostile to .antitrust regulation of the shipping industry because it concluded that the abolition of the conference system, which the Sherman Act probably required, would not be in the public interest. But the Committee also concluded that the conference system had produced substantial evils and that it should not be permitted to continue without governmental supervision.

The Committee said: “While admitting their many advantages, the Committee is not disposed to recognize steamship agreements and conferences, unless the same are brought under some form of effective government supervision. To permit such agreements without government supervision would mean giving the parties thereto unrestricted right of action. Abuses exist, and the numerous complaints received by the Committee show that they must be recognized.” H. R. Doc. No. 805, 63d Cong., 2d Sess., pp. 417-418.

Therefore, it seems likely that the Committee really only wanted to give the shipping industry a limited antitrust exemption. We do not believe that its purpose would be frustrated by the application of the antitrust laws to the implementation of conference agreements which have not been subjected to public scrutiny and examination by a governmental agency.

But even if the Committee considered the possibility of a complete antitrust exemption at the time of the 1914 Report, the § 15 exemption clearly demonstrates that those who drafted the Shipping Act during the next Congress decided not to give the industry complete antitrust immunity. Since the problem of the application of the antitrust laws to the shipping industry was one of the focal points of the entire inquiry, the exemption provision could not have been a casual afterthought. The language of that provision must have been selected as a matter of deliberate choice in order to indicate the extent to which the industry’s rate-making activities remain subject to the antitrust laws as well as the extent to which those activities are exempted from antitrust regulation.

This Court’s decisions in United States Navigation Co. v. Cunard Steamship Co., 284 U. S. 474, and Far East Conference v. United States, 342 U. S. 570, do not conflict with our interpretation of the Shipping Act. Those cases merely hold that courts must refrain from imposing antitrust sanctions for activities of debatable legality under the Shipping Act in order to avoid the possibility of conflict between the courts and the Commission.

The plaintiffs in the Cunará and Far East cases were seeking to enjoin activities which allegedly implemented unapproved agreements even though the Commission had never determined whether those alleged activities constituted the implementation of unapproved agreements. There was a real risk that the District Court might find that the defendants had implemented unapproved agreements while the Commission might find in some later proceeding that the same activities constituted the implementation of approved agreements. This Court decided that the danger of such a conflict could best be avoided by holding that one tribunal or the other has the exclusive right to make the initial factual determination. Since the Commission has specialized knowledge of the industry, the Court concluded that such primary jurisdiction should be vested in the Commission and accordingly instructed the District Court to refrain from acting until the Commission had ascertained and interpreted the circumstances underlying the legal issues.

The relief requested in the Cunará and Far East cases also created another source of possible conflict. Even if the Commission found that the defendants in those cases had implemented unapproved agreements, the Commission might decide to approve the prospective implementation of those agreements. The Commission would obviously be hampered in the exercise of that power if a court had previously issued an unconditional injunction prohibiting the implementation of the agreements in question. Therefore, the Court concluded that the District Court should not be permitted to issue an unconditional injunction in the absence of a Commission determination disapproving future operations under those agreements.

The considerations which led to our decisions in the Far East and Cunará cases do not require that the shipping industry be totally immunized from antitrust regulation. The Far East and Cunará principles permit courts to subject activities which are clearly unlawful under the Shipping Act to antitrust sanctions so long as the courts refrain from taking action which might interfere with the Commission’s exercise of its lawful powers. The Far East opinion explicitly recognized that this is the case. The Court observed that the Government could reinstate its injunction suit if and when the Commission found that the defendants’ activities were not lawful under the Shipping Act and would not be approved prospectively.

The award of treble damages for past and completed conduct which clearly violated the Shipping Act would certainly not interfere with any future action of the Commission. Although the Commission can approve prospective operations under agreements which have been implemented without approval, respondents concede that the Commission has no power to validate pre-approval implementation of such agreements. Therefore, the Far East and Cunará principles only preclude courts from awarding treble damages when the defendants’ conduct is arguably lawful under the Shipping Act.

The Court of Appeals thought that respondents’ activities were arguably lawful under the Shipping Act. It concluded that respondents’ activities conceivably constituted the implementation of a 1952 agreement between the respondents which had been approved by the Commission. Therefore, the Court of Appeals affirmed the District Court’s order dismissing the action.

We believe that the Court of Appeals erred in dismissing the action. The Court of Appeals apparently thought that this was the proper course because this Court dismissed the action in Far East. However, the Far East opinion indicates that the Court only chose to dismiss that action rather than to stay the proceedings pending Commission action because it found that dismissal would not prejudice the plaintiff’s right to obtain antitrust relief at the appropriate time. That plaintiff was seeking injunctive relief from continuing conduct. Such a suit could easily be reinstituted if and when the Commission determined that the activities in question violated the Shipping Act. But a treble-damage action for past conduct cannot be easily reinstituted at a later time. Such claims are subject to the Statute of Limitations and are likely to be barred by the time the Commission acts. Therefore, we believe that the Court of Appeals should have stayed the action instead of dismissing it.

The Commission completed its own investigation of respondents' activities after certiorari was granted and concluded that its approval of respondents’ 1952 agreement did not cover the implementation of the subsequent agreements which are the basis of petitioner’s treble-damage complaint. An appeal from the Commission’s decision is now pending.

Petitioner’s treble-damage action is based upon the theory that those same subsequent rate-making agreements are unlawful per se under the antitrust laws.

Petitioner participated in the proceedings before the Commission, but petitioner did not ask for reparations under the Shipping Act and, therefore, could not be accorded any. Petitioner’s failure to seek Shipping Act reparations does not affect its rights under the antitrust laws. The rights which petitioner claims under the antitrust laws are entirely collateral to those which petitioner might have sought under the Shipping Act. This does not suggest that petitioner might have sought recovery under both, but petitioner did have its choice.

Therefore, we reverse the order dismissing this action and remand the case to the United States District Court for the Northern District of California with instructions to stay the action pending the final outcome of the Shipping Act proceedings and then to proceed in a manner consistent with this opinion.

It is so ordered.

       Section 15, as set forth in 46 U. S. C. § 814, provides in part:
      “Any agreement and any modification or cancellation of any agreement not approved, or disapproved, by the Commission shall be unlawful, and agreements, modifications, and cancellations shall be lawful only when and as long as approved by the Commission; before approval or after disapproval it shall be unlawful to carry out in whole or in part, directly or indirectly, any such agreement, modification, or cancellation; except that tariff rates, fares, and charges, and classifications, rules, and regulations explanatory thereof (including changes in special rates and charges covered by section 813a of this title which do not involve a change in the spread between such rates and charges and the rates and charges applicable to non-contract shippers) agreed upon by approved conferences, and changes and amendments thereto, if otherwise in accordance with law, shall be permitted to take effect without prior approval upon compliance with the publication and filing requirements of section 817 (b) of this title and with the provisions of any regulations the Commission may adopt.
      “Every agreement, modification, or cancellation lawful under this section, or permitted under section 813a of this title, shall be excepted from the provisions of sections 1-11 and 15 of Title 15, and amendments and Acts supplementary thereto.
      “Whoever violates any provision of this section or of section 813a of this title shall be liable to a penalty of not more than $1,000 for each day such violation continues, to be recovered by the United States in a civil action. . . .”

       The Shipping Act, 1916 was passed following an exhaustive investigation into shipping combinations undertaken by the House Committee on Merchant Marine and Fisheries under the chairmanship of Congressman Alexander. That Committee issued its Report on Steamship Agreements and Affiliations in the American Foreign and Domestic Trade, H. R. Doc. No. 805, 63d Cong., 2d Sess. (“Alexander Report”) in 1914.

       Respondents contend that treble-damage actions will frustrate one of the Committee’s purposes. The Committee found, however, that the conferences had discriminated among shippers and concluded that such discrimination should be eliminated. Respondents assert that treble-damage awards for shippers are equivalent to rebates and that shippers will receive unequal “rebates” because different courts and juries will inevitably apply different measures of damages. Therefore, they conclude that treble-damage actions will frustrate the Shipping Act policy of equality of treatment for shippers.
      We believe that Congress was concerned with assuring equality of treatment by the conferences, not with equality of treatment by juries in collateral proceedings. There is no reason to believe that Congress would want to deprive all shippers of their right to treble damages merely to assure that some shippers do not obtain more generous awards than others.

       The Court said:
      “Having concluded that initial submission to the Federal Maritime Board is required, we may either order the case retained on the District Court docket pending the Board’s action ... or order dismissal of the proceeding brought in the District Court. . . . We believe that no purpose will here be served to hold the present action in abeyance in the District Court while the proceeding before the Board and subsequent judicial review or enforcement of its order are being pursued. A similar suit is easily initiated later, if appropriate.” 342 U. S. 570, 576-577.
      If the Far East decision had held that the activities in question could never be subjected to the antitrust laws under any circumstances, there would obviously have been no reason to consider whether the proceedings should be stayed or dismissed. Thus, the Far East opinion effectively determined that the implementation of unapproved rate-making agreements is subject to antitrust regulation.

       See note 4, supra.

       The Federal Maritime Commission commenced an investigation in 1959 to determine whether the 1952 agreement between respondents constituted the full agreement between the parties. This investigation culminated in the issuance of the Commission's Report on Joint Agreement Between Member Lines of the Far East Con-jerence and the Member Lines of the Pacific Westbound Conference, Federal Maritime Commission Docket No. 872, July 28, 1965, rehearing denied, November 1, 1965.
      The Commission found that the respondents had entered into and implemented a number of joint rate-making agreements after the Commission approved the 1952 agreement for consultation and that none of the subsequent agreements had been filed for approval. The Commission concluded that its approval of the 1952 agreement did not cover any of the subsequent agreements and, therefore, that respondents had violated the Shipping Act by implementing those subsequent agreements.