author: Mr. Justice Fortas Mr. Justice Harlan,

text:
    WYANDOTTE TRANSPORTATION CO. et al. v. UNITED STATES.
    No. 31.
    Argued October 16-17, 1967.
    Decided December 4, 1967.

      Lucian Y. Ray argued the cause for petitioners. With him on the briefs were Benjamin W. Yancey, George B. Matthews, Tom F. Phillips and J. Barbee Winston.

      Alan S. Rosenthal argued the cause for the United States. With him on the brief were Acting Solicitor

      General Spritzer and Acting Assistant Attorney General Eardley.

      E. D. Vickery, Alexander B. Hawes and Scott H. Elder filed a brief for the American Waterways Operators, Inc., et al., as amici curiae, urging reversal.
   Mr. Justice Fortas

delivered the opinion of the Court.

Two cases, consolidated by the trial court and raising related issues, are here involved. In United States v. Cargill, Inc., the Government asked that parties responsible for the allegedly negligent sinking of a vessel in an inland waterway be declared responsible for removing the impediment to navigation thus created. In United States v. Wyandotte Transportation Co. the United States had itself removed a sunken vessel; claiming that the vessel had been negligently sunk, it sought reimbursement for the costs of removal. The question now before us for decision is whether the relief requested in these cases is available to the United States.

The United States District Court for the Eastern District of Louisiana concluded that such relief is not available. After the cases were consolidated, that court granted summary judgment against the United States in each instance. The court decided that the Government has no in personam rights against those responsible for having- negligently sunk a vessel. In its view, the United States is limited to an in rem right against the cargo of the negligently sunk vessel and against the vessel itself. United States v. Cargill, Inc., 1964 A. M. C. 1742.

The Court of Appeals for the Fifth Circuit reversed. It held that under the Rivers and Harbors Act of 1899, 30 Stat. 1151 et seg., as amended, 33 U. S. C. § 401 et seq., the United States may assert in personam rights — to in-junctive or declaratory relief or damages — against those responsible for the negligent sinking of a vessel. United States v. Cargill, Inc., 367 F. 2d 971 (1966). Because of a conflict among the circuits and because of the important question regarding interpretation of a statute of the United States, we granted certiorari. 386 U. S. 906 (1967). We affirm the judgment below.

The crucial facts of both cases occurred in March 1961. The Cargill libel alleges that, at that time, a supertanker bound up the Mississippi for Baton Rouge, Louisiana, collided with two barges moored by a tug. The barges were owned by petitioner Cargo Carriers, Inc., and petitioner Jeffersonville Boat and Machine Co., respectively. The Government was notified immediately after the accident that the two barges had sunk. A few days later, it was served with notice that the barges were being abandoned. The United States refused, however, to accept abandonment or to assume responsibility for removing the wrecks. In December 1962, it brought suit against the owners, managers, charterers, and insurers of the two barges, seeking a decree that the respondents were responsible for removing the sunken vessels. The Government charged that negligence in the equipping, manning, and mooring of the barges had caused the sinking. To this date, the barges involved in this case remain in the Mississippi.

The Wyandotte libel is founded on facts more dramatic. A barge loaded with 2,200,000 pounds of liquid chlorine sank while being pushed in the Mississippi near Yidalia, Louisiana. Wyandotte, the owner of the barge, at first made some attempts to locate and raise the wreck. But then, in November 1961, Wyandotte informed the Army Corps of Engineers that it believed further efforts to raise the barge would be unsuccessful. Wyandotte stated that it was abandoning the vessel. The Government began a study of the danger posed by such a substantial load of chlorine at the bottom of the Mississippi. It was feared that if any chlorine escaped it would be in the form of lethal chlorine, gas, which might cause a large number of casualties. The Government demanded that Wyandotte remove the barge. Wyandotte refused to do this.

The United States then moved to avert a catastrophe by locating and raising the barge and its deadly cargo. In October 1962, the President proclaimed the presence of the barge to be a major disaster under the Disaster Relief Act, 64 Stat. 1109, 42 U. S. C. §§ 1855-1855g. Safety precautions on a grand scale were taken, and a team of experienced divers sought gingerly to raise Wy-andotte’s barge. These operations, costing the United States some $3,081,000, proved successful.

The United States demanded that the owners and operators of the barge reimburse the Government for its expenses. This demand was rejected. In January 1963, the Government brought suit, in rem against the barge and her cargo, and in personam against the owner of the barge, the owner of the boat that had been pushing the barge when it sank, and the owner of the chlorine cargo. The libel charged these parties with negligence and fault in the design, towing, manning, mooring, and equipping of the barge. The Government sought a decree for the costs it incurred in removing the wreck.

I.

Although the Government has advanced several discrete grounds for affirmance, we do not pause to examine each of them. We agree that § 15 of the Rivers and Harbors Act of 1899, 33 U. S. C. § 409, read in light of our decision in United States v. Republic Steel Corp., 362 U. S. 482 (1960), controls the issues here presented. Section 15 reads in relevant part as follows:

“It shall not be lawful ... to voluntarily or carelessly sink, or permit or cause to be sunk, vessels or other craft in navigable channels .... And whenever a vessel, raft or other craft is wrecked and sunk in a navigable channel, accidentally or otherwise, it shall be the duty of the owner of such sunken craft to immediately mark it with a buoy or beacon during the day and a lighted lantern at night, and to maintain such marks until the sunken craft is removed or abandoned, and the neglect or failure of the said owner so to do shall be unlawful; and it shall be the duty of the owner of such sunken craft to commence the immediate removal of the same, and prosecute such removal diligently, and failure to do so shall be considered as an abandonment of such craft, and subject the same to removal by the United States as provided for in sections 411-416, 418, and 502 of this title.” 33 U. S. C. §409.

Petitioners do not dispute, as indeed they could not, that the negligent sinking of a vessel falls within the prohibition of the first above-quoted clause of § 15. They contend, however, that the Act contains specific remedies for such a violation of § 15, and that those remedies were meant by Congress to be exclusive of all others. Petitioners point to the § 16 duty of the owner to mark and remove a sunken craft. They note that failure to remove “shall be considered as an abandonment of such craft, and subject the same to removal by the United States.” And petitioners call our attention to §§ 19 and 20 of the Act, 33 U. S. C. §§ 414-415, which set forth the procedure whereby the United States may remove a sunken craft that “shall be considered as” abandoned under § 15. Section 19 provides that whenever a sunken vessel exists as an obstruction to any navigable waters of the United States for a period longer than 30 days, or whenever the abandonment of such obstruction can be legally established in a shorter time, the sunken vessel “shall be subject to be broken up, removed, sold, or otherwise disposed of by the Secretary of the Army at his discretion, without liability for any damage to the owners of the same.” That section further contemplates “[t]hat any money received from the sale of any such wreck . . . shall be covered into the Treasury of the United States.” 33 U. S. C. § 414. Section 20, an emergency provision applicable only when a sunken vessel obstructs a waterway “in such manner as to stop, seriously interfere with, or specially endanger navigation,” 33 U. S. C. § 415, is similar in structure to § 19.

Finally, petitioners emphasize that § 16 of the Act provides criminal penalties for “[e]very person and every corporation that shall violate, or that shall knowingly aid, abet, authorize, or instigate a violation of the provisions [of § 15].” 33 U. S. C. § 411. They point out that § 12 of the Act, 33 U. S. C. § 406, which provides penalties for violations of § 10, 33 U. S. C. § 403, expressly authorizes the injunctive remedy. They argue that the lack of such an authorization in § 16 should be taken to mean that Congress did not intend the United States to be able to obtain what is, in effect, injunctive relief as a remedy for a violation of § 15.

The position of petitioners is, therefore, that in the case of a negligently sunk vessel, the Government may require the owner to mark it; it may expect him to remove it or forfeit his interest in the vessel; and if the Government proceeds to remove the vessel, it possesses the right to sell vessel and cargo and retain the proceeds of these sales. Moreover, the Government may proceed criminally, under § 16, against those responsible for the negligent sinking. But, petitioners argue, the Government may do no more. Under their view, the very detail of the Rivers and Harbors Act negates the possibility that Congress intended the Government to be able to recover removal expenses exceeding the value of the vessel and its cargo. Petitioners would apply the same analysis to a government action for declaratory or injunctive relief. Indeed, petitioners believe that authorization of the injunction remedy in another, analogous, section of the Act indicates congressional intent to withhold declaratory or injunctive relief as a means of enforcing § 15.

We do not agree. Petitioners’ interpretation of the Rivers and Harbors Act of 1899 would ascribe to Congress an intent at variance with the purpose of that statute. Petitioners’ proposal is, moreover, in disharmony with our own prior construction of the Act, with our decisions on analogous issues of statutory construction, and with a major maritime statute of the United States. If there were no other reasonable interpretation of the statute, or if petitioners could adduce some persuasive indication that their interpretation accords with the congressional intent, we might be more disposed to accept that interpretation. But our reading of the Act does not lead us to the conclusion that Congress must have intended the statutory remedies and procedures to be exclusive of all others. There is no indication anywhere else — in the legislative history of the Act, in the predecessor statutes, or in nonstatu-tory law — that Congress might have intended that a party who negligently sinks a vessel should be shielded from personal responsibility. We therefore hold that the remedies and procedures specified by the Act for the enforcement of § 15 were not intended to be exclusive. Applying the principles of our decision in Republic Steel, we conclude that other remedies, including those here sought, are available to the Government.

II.

Article I, § 8, of the Constitution grants to Congress the power to regulate commerce. For the exercise of this power, the navigable waters of the United States are to be deemed the “public property of the nation, and subject to all the requisite legislation by Congress.” Gilman v. Philadelphia, 3 Wall. 713, 725 (1866). The Federal Government is charged with ensuring that navigable waterways, like any other routes of commerce over which it has assumed control, remain free of obstruction. Cf. In re Debs, 158 U. S. 564, 586 (1895). The Rivers and Harbors Act of 1899, an assertion of the sovereign power of the United States, Sanitary District v. United States, 266 U. S. 405 (1925), was obviously intended to prevent obstructions in the Nation’s waterways. Despite some difficulties with the wording of the Act, we have consistently found its coverage to be broad. See, e. g., Sanitary District v. United States, supra; United States v. Republic Steel Corp., 362 U. S. 482 (1960). And we have found that a principal beneficiary of the Act, if not the principal beneficiary, is the Government itself. United States v. Republic Steel Corp., supra, at 492.

Our decisions have established, too, the general rule that the United States may sue to protect its interests. Cotton v. United States, 11 How. 229 (1851); United States v. San Jacinto Tin Co., 125 U. S. 273 (1888); Sanitary District v. United States, supra. This rule is not necessarily inapplicable when the particular governmental interest sought to be protected is expressed in a statute carrying criminal penalties for its violation. United States v. Republic Steel Corp., supra. Our decisions in cases involving civil actions of private parties based on the violation of a penal statute so indicate. Texas & Pacific R. Co. v. Rigsby, 241 U. S. 33 (1916); J. I. Case Co. v. Borak, 377 U. S. 426 (1964). In those cases we concluded that criminal liability was inadequate to ensure the full effectiveness of the statute which Congress had intended. Because the interest of the plaintiffs in those cases fell within the class that the statute was intended to protect, and because the harm that had occurred was of the type that the statute was intended to forestall, we held that civil actions were proper. That conclusion was in accordance with a general rule of the law of torts. See Restatement (Second) of Torts § 286. We see no reason to distinguish the Government, and to deprive the United States of the benefit of that rule.

The inadequacy of the criminal penalties explicitly provided by § 16 of the Rivers and Harbors Act is beyond dispute. That section contains only meager monetary penalties. In many cases, as here, the combination of these fines and the Government’s in rem rights would not serve to reimburse the United States for removal expenses. It is true that § 16 also provides for prison terms, but this punishment is hardly a satisfactory remedy for the pecuniary injury which the negligent shipowner may inflict upon the sovereign. Cf. United States v. Acme Process Equipment Co., 385 U. S. 138 (1966).

It was a similar process of reasoning that underlay our decision in United States v. Republic Steel Corp., 362 U. S. 482 (1960). That case concerned the deposit of industrial solids which, we believed, created an “obstruction ... to the navigable capacity” of a waterway of the United States, within the meaning of § 10 of the Act. We decided that the Government might seek injunctive relief to compel removal of such an obstruction, even though such relief was nowhere specifically authorized in the Act. We concluded that the authorization of injunctive relief in § 12, which is applicable only to a limited category of § 10 obstructions (structures), should not be read to exclude injunctions to compel removal of other types of § 10 obstructions. In referring to the Act, we noted that “Congress has legislated and made its purpose clear; it has provided enough federal law in § 10 from which appropriate remedies may be fashioned even though they rest on inferences. Otherwise we impute to Congress a futility inconsistent with the great design of this legislation.” 362 U. S., at 492.

Although we do not approach the instant cases in the context of § 10, we believe the principles of Republic Steel apply, by analogy, to the issues now before us. The Government may, in our view, seek an order that a negligent party is responsible for rectifying the wrong done to maritime commerce by a § 15 violation. Denial of such a remedy to the United States would permit the result, extraordinary in our jurisprudence, of a wrongdoer shifting responsibility for the consequences of his negligence onto his victim. It might in some cases permit the negligent party to benefit from commission of a criminal act. We do not believe that Congress intended to withhold from the Government a remedy that ensures the full effectiveness of the Act. We think we correctly divine the congressional intent in inferring the availability of that remedy from the prohibition of § 15.

It is but a small step from declaratory relief to a civil action for the Government’s expenses incurred in removing a negligently sunk vessel. See United States v. Perma Paving Co., 332 F. 2d 754 (C. A. 2d Cir. 1964). Having properly chosen to remove such a vessel, the United States should not lose the right to place responsibility for removal upon those who negligently sank the vessel. See Restatement of Restitution § 115; United States v. Moran Towing & Transportation Co., 374 F. 2d 656, 667 (C. A. 4th Cir. 1967). No issue regarding the propriety of the Government’s removal of Wyandotte’s barge is now raised. Indeed, the facts surrounding that sinking constitute a classic case in which rapid removal by someone was essential. Wyandotte was unwilling to effectuate removal itself. It would be surprising if Congress intended that, in such a situation, the Government’s commendable performance of Wyandotte’s duty must be at Government expense. Indeed, in any case in which the Act provides a right of removal in the United States, the exercise of that right should not relieve negligent parties of the responsibility for removal. Otherwise, the Government would be subject to a financial penalty for the correct performance of its duty to prevent impediments in inland waterways. See United States v. Perma Paving Co., supra, at 758.

We note, moreover, that under the Limitation of Shipowners’ Liability Act of 1851, 9 Stat. 635, as amended, 46 U. S. C. § 181 et seg., the liability of a shipowner “for any loss, damage, or injury by collision, or for any act, matter, or thing, loss, damage, or forfeiture” may be limited to “the interest of such owner in such vessel, and her freight then pending”; but this limitation is available only if the act or damage occurred “without the privity or knowledge of such owner.” 46 U. S. C. § 183. “For his own fault, neglect and contracts the owner remains liable.” American Car & Foundry Co. v. Brassert, 289 U. S. 261, 264 (1933). The reading that petitioners would place on the Rivers and Harbors Act of 1899 would create an additional right of limitation, applicable in the special case of a sinking even though the owner is himself negligent. Yet Congress gave no indication, in passing the Rivers and Harbors Act, that it intended to alter or qualify the 1851 Act. In the congressional failure to connect these two statutes, we find at least some evidence that petitioners’ discovery of a limitation of liability in the Rivers and Harbors Act is unwarranted.

III.

Petitioners contend that, despite our prior decisions and the silence of the Rivers and Harbors Act on this point, that statute authorizes them simply to abandon their negligently sunk vessels, without further responsibility for those vessels. We find in the Act no support for such an absolute right of abandonment. The provision upon which petitioners place most reliance, the final clause of § 16, creates a “duty of the owner of [a] sunken craft to commence the immediate removal of the same, and prosecute such removal diligently.”' Because “failure to do so shall be considered as an abandonment of such craft, and subject the same to removal by the United States as provided for in sections [19 and 20],” petitioners contend that such failure in no case has other consequences. But the duty imposed by and the remedy provided in the final clause of § 15 and §§19 and 20 are not prescribed only for owners of negligently sunk ves-seis. Those provisions apply “whenever a vessel ... is wrecked and sunk in a navigable channel, accidentally or otherwise . . . .” Unlike a negligent sinking, a non-negligent sinking is not declared by the Act to be unlawful. It seems highly unlikely that Congress, having specified that only a negligent or intentional sinking is a crime, would then employ such indirect language to grant the culpable owner a personal civil immunity from the consequences of that crime.

We believe the sections noted by petitioners are intended to protect the United States against liability for removing a sunken vessel if it chooses to do so. See Zubik v. United States, 190 F. 2d 278 (C. A. 3d Cir. 1951); Gulf Coast Transp. Co. v. Ruddock-Orleans Cypress Co., 17 F. 2d 858 (D. C. E. D. La. 1927). Section 19 speaks explicitly of the discretion of the Secretary of the Army to break up, remove, sell, or otherwise dispose of a sunken vessel that has obstructed a waterway “without liability for any damage to the owners of the same.” These sections do not negate the rights of the United States to obtain declaratory relief or to recover removal expenses. It is true that a proviso to § 19 states “[t]hat any money received from the sale of any such wreck . . . shall be covered into the Treasury of the United States.” But that proviso does not indicate that the United States, having chosen to remove a sunken vessel, shall receive no other monies. At most, the proviso establishes the proposition that, if the United States chooses to sell a wreck, the owner of the vessel has no right to any monies received. Section 20, the emergency section, closely parallels § 19. It adds nothing to petitioners' argument.

Petitioners also claim that a substantial body of non-statutory law establishes the rule that a shipowner who has negligently sunk a vessel may abandon it and be insulated from all but in rem liability. They argue that Congress must have intended to codify this rule in the Rivers and Harbors Act. We do not accept petitioners’ claim. Although several modern courts have assumed the existence of such a common-law rule, see, e. g., United States v. Moran Towing & Transportation Co., 374 F. 2d 656, 667 (C. A. 4th Cir. 1967); United States v. Bethlehem Steel Corp., 319 F. 2d 512, 518-519 (C. A. 9th Cir. 1963), the rule evaporates upon close analysis. We do not believe Congress intended the Rivers and Harbors Act to embody this illusory nonstatutory law.

IV.

These cases were decided in the District Court on petitioners’ motions for summary judgment. The Court of Appeals reversed and remanded for further proceedings. As we have noted, the Government’s libels were based on a theory of negligence, and the award of the Court of Appeals called for a determination whether the acts of the various petitioners constituted negligence. We agree with that disposition.

Affirmed.

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

Mr. Justice Harlan,

concurring.

I concur in the Court’s holding that under § 15 of the Rivers and Harbors Act of 1899, 33 U. S. C. § 409, the United States may recover the costs of removing a vessel negligently sunk in navigable waters from those responsible for the sinking. I further agree with the holding that the United States is entitled to the declaratory relief sought in the Cargill action. In affording this latter relief it is my understanding that the Court does not purport to decide whether the United States may also obtain an injunction compelling removal, but has left that question to be answered in light of a full development of the facts, and in accordance with normal standards of equity.

In reaching these conclusions, I have not been unmindful of the view stated by me in dictum in my dissenting opinion in United States v. Republic Steel Corp., 362 U. S. 482, 493, to the effect that the courts are precluded from supplying relief not expressly found in the Rivers and Harbors Act. Insofar as that dictum might be taken to encompass the present case, where, contrary to my view in Republic Steel, I do believe that the relief afforded by this Court is fairly to be implied from the statute, candor would compel me to say that the dictum was ill-founded.

On these premises I join the opinion of the Court.

       There is some dispute as to whether the United States ever agreed to remove the owner’s barge. The Court of Appeals was cognizant of this issue but concluded that its resolution of the cases made a decision on this point unnecessary. We agree. We therefore do not pass on the questions whether the United States asserted the right to remove Wyandotte’s barge or whether the Government, once it has asserted such a right, is precluded from seeking declaratory relief.

       Upon motion of the United States, the District Court ordered that the chlorine and its containers be sold and that the proceeds be paid into court pending final disposition of the litigation. The proceeds of this sale were $85,000. Petitioners do not dispute the right of the United States to this sum. See n. 12, infra.

       On petition for rehearing, the Court of Appeals affirmed the summary judgment entered in favor of Union Carbide Co., the owner of the chlorine, on the ground that there was no allegation or proof of negligence on its part. That decision is not now before us.

         Of the expenses incurred by the United States, approximately $1,565,000 was for engineering costs; the remainder, some $1,516,000, was for public health and safety measures, including allegedly necessary precautions against a possible rupture of the chlorine containers during salvage operations. We do not, of course, pass on the questions whether all of these expenses were necessary to remove the barge or whether the Government may recover all of them.

       Thus, we intimate no view as to whether a negligently sunt vessel may be an “obstruction ... to the navigable capacity of any of the waters of the United States,” prohibited by § 10 of the Rivers and Harbors Act of 1899, 33 U. S. C. § 403. This was the ground upon which the Court of Appeals rested its decision. We do not assess any of the Court of Appeals’ conclusions, nor do we decide whether petitioners may be subject to the criminal and other remedies of § 12 of the Act, 33 U. S. C. § 406, which applies to violations of § 10.
      Nor, finally, do we decide whether nonstatutory public nuisance law may form a basis for the relief here sought by the Government. See, e. g., Mayor of Georgetown v. Alexandria Canal Co., 12 Pet. 91, 97 (1838); United States v. Hall, 63 F. 472, 474 (C. A. 1st Cir. 1894); The Ella, [1915] P. Ill (1914); Comment, Substantive and Remedial Problems in Preventing Interferences with Navigation: The Republic Steel Case, 59 Col. L. Rev. 1065, 1067 (1959); Wisdom, Obstructions in Rivers, 119 Just. P. 846 (1955). We therefore do not pass either on the question whether such a nonstatutory right of the sovereign has ever existed in the United States, cf. Willamette Iron Bridge Co. v. Hatch, 125 U. S. 1, 8 (1888); United States v. Republic Steel Corp., 362 U. S. 482, 486 (1960); or on whether such a right, if it ever did exist, survived the series of enactments beginning with the Rivers and Harbors Act of 1890, 26 Stat. 426, 454, in which Congress asserted the general interest of the United States in the removal of sunken vessels obstructing navigable waters. Cf. In re Debs, 158 U. S. 564 (1895).

       It bears emphasis that we are here concerned with the careless or negligent sinking of a vessel, which is specifically declared not to be lawful by the first above-quoted clause of § 15. Negligence is the sole theory of recovery in the Government’s libels. Questions involving a non-negligent sinking, which is not forbidden by § 15, are not now before us and we do not mean to indicate what relief, if any, may be available to the Government in that situation.

       The determination of the applicability of § 20 is left by that section to “the opinion of the Secretary of the Army, or any agent of the United States to whom the Secretary may delegate proper authority.” Once the determination is made, the Secretary or his agent may “take immediate possession” of a sunken vessel “so far as to remove or to destroy it and to clear immediately” the obstructed waterway. See n. 20, infra.

       Violation is a misdemeanor, punishable by “a fine not exceeding $2,500 nor less than $500, or by imprisonment (in the case of a natural person) for not less than thirty days nor more than one year, or by both such fine and imprisonment, in the discretion of the court . . .

       See n. 5, supra.

       As noted, the United States sought declaratory relief in the Cargill action.

       The Government notes, in regard to petitioners’ contention that these remedies are exclusive, that they apply only to the owner of a vessel. The Government argues that the position of those allegedly negligent petitioners who are not owners is substantially weaker. But see United States v. Bethlehem Steel Corp., 319 F. 2d 512, 521 (C. A. 9th Cir. 1963). We note that the prohibition of § 15 against the negligent sinking of a vessel and the criminal penalties of •§ 16 are not limited to owners. Our disposition of these cases makes it unnecessary for us to pass on the Government’s contention.

       Petitioners concede the in rem right of the United States against a negligently sunk vessel and its cargo, see Brief for Petitioners, p. 12, despite the fact that the right of the Government to proceed against cargo is by no means clearly granted by the statute. See § 19, 33 U. S. C. § 414; United States v. Cargo Salvage Corp., 228 F. Supp. 145 (D. C. S. D. N. Y. 1964). See also §16, 33 U. S. C. § 412.

       In this conclusion we have been supported by similarly broad readings of similar statutes predating this one. See, e. g., United States v. Rio Orande Irrigation Co., 174 U. S. 690 (1899).

       See North Bloomfield, Gravel Min. Co. v. United States, 88 F. 664, 678-679 (C. A. 9th Cir.1898). See also Dann v. Studebaker-Packard Corp., 288 F. 2d 201, 208-209 (C. A. 6th Cir. 1961); Reitmeister v. Reitmeister, 162 F. 2d 691, 694 (C. A. 2d Cir. 1947).

       Petitioners would distinguish Republic Steel on the ground that, in that ease, “if . . . injunctive relief . . . was not available, the free navigability of the channel would be seriously impaired and Republic Steel Corp., by repeatedly paying the fine imposed [by § 12], would, in effect, be operating under a license.” See Brief for Petitioners, p. 29; United States v. Bethlehem Steel Corp., 319 F. 2d 512, 518 (C. A. 9th Cir. 1963). This ground of distinction will not do, for at least three reasons. First, the criminal provisions of § 12 include not only a fine but a prison term. See United States v. Bethlehem Steel Corp., 319 F. 2d 512, 523 (C. A. 9th Cir. 1963) (dissenting opinion). Second, if fines were in practice the only deterrent in § 12 and § 16, it might well be worthwhile to risk fines rather than take necessary safety measures for tows. Third, the proposed ground of distinction concentrates upon the injunction in Republic Steel against future violations of the Act; it does not explain the mandatory injunction in that case to compel removal of the obstruetion that had already been created at the time of the Government’s suit.
      Indeed, the argument for exclusivity was stronger in Republic Steel than it is here. In that case, we decided that injunctive relief was a proper enforcement measure against a violation of the very section to which § 12 (but not the statutory provision of injunctive process) applies.

       Wyandotte, noting that Government funds spent in removal operations were provided under the Disaster Relief Act, 42 U. S. C. §§ 1855-1855g, argues that nothing in that Act authorizes the United States to recover disaster relief expenditures from private parties. We agree, but the argument misses the point. We believe the United States may recover its expenses under the Rivers and Harbors Act of 1899. We see nothing in the Disaster Relief Act to the contrary.

       We do not, of course, pass on the applicability of the Limitation Act, before or after passage of the Rivers and Harbors Act, to the facts of the case now before us. We only note that the principle for which petitioners are contending is very much like the principle of limitation of liability, known to the statutory maritime law of the United States almost 50 years prior to passage of the Rivers and Harbors Act.

       Petitioners’ theory is, moreover, in conflict with the administrative interpretation of the statute. A regulation promulgated by the Department of the Army provides that “a person who . . . negligently permits a vessel to sink in navigable waters of the United States . . . may ... be compelled to remove the wreck as a public nuisance or to pay for its removal.” 33 CFR § 209.410. The origins of this regulation go back to 1901. Letter from William Cary Sanger, Acting Secretary of War, to William L. Hughes, July 31, 1901. See United States v. Republic Steel Corp., 362 U. S. 482, 490, n. 5 (1960).

       This rule is not unfair. See 41 Tulane L. Rev. 459, 464, n. 29 (1967). The shipowner should know the value of his vessel and cargo. If he believes that value is greater than the cost of removal, he may, within 30 days after the obstruction is created, raise the vessel himself. See § 19, 33 U. S. C. § 414.

       Thus, §20 concludes with the proviso “[t]hat the expense of removing any such obstruction as aforesaid shall be a charge against such craft and cargo; and if the owners thereof fail or refuse to reimburse the United States for such expense within thirty days after notification, then the officer or agent aforesaid may sell the craft or cargo, or any part thereof that may not have been destroyed in removal, and the proceeds of such sale shall be covered into the Treasury of the United States.” Petitioners rely heavily on the phrase “shall be a charge against such craft and cargo.” But that phrase does not lead to the conclusion that the Government possesses no other right to recover. The phrase merely describes the lien interest of the United States. See United States v. Moran Towing & Transportation Co., 374 F. 2d 656, 671 (C. A. 4th Cir. 1967) (dissenting opinion). Such a provision is necessary in a § 20 case because, under the terms of that section, the owner is not given a statutory period in which to decide whether the value of his vessel and cargo exceeds the cost of removal and to effectuate removal himself.

       Petitioners do not appear to claim that the legislative history of the Rivers and Harbors Act of 1899 clearly indicates the intent of Congress to create or codify this rule. To the extent that any intent appears in the legislative history of the 1899 Act, it is the intent not to alter pre-existing statutory law. Thus, the House conferees said of the statute that it was a “codification of existing laws pertaining to rivers and harbors, though containing no essential changes in the existing law.” 32 Cong. Rec. 2923 (1899); see United States v. Republic Steel Corp., 362 U. S., at 486. The legislative history of prior statutes is scant. And the prior Acts themselves lend no support to petitioners. See Rivers and Harbors Act of 1880, 21 Stat. 180; Rivers and Harbors Act of 1882, 22 Stat. 191; Rivers and Harbors Act of 1890, 26 Stat. 426.

       The American decisions speaking of a nonstatutory right of abandonment all trace back to a dictum in Winpenny & Chedester v. Philadelphia, 65 Pa. 135 (1870). See, e. g., The Manhattan, 10 F. Supp. 45 (D. C. E. D. Pa. 1935); Gulf Coast Transp. Co. v. Ruddock-Orleans Cypress Co., 17 F. 2d 858 (D. C. E. D. La. 1927). In Winpenny the Pennsylvania Supreme Court stated in dictum that the “owner [of a sunken vessel] is absolutely not liable to raise or remove the hulk.” 65 Pa., at 138. For this proposition, the Pennsylvania court cited three treatises and five English cases. The cases are not good authority. The only one close to the point, King v. Watts, 2 Esp. 675, 170 Eng. Rep. 493 (1798), held that an indictment for having sunk a vessel in the Thames could not be maintained because the owner had not been negligent and “it would be adding to the calamity to subject the party to an indictment . . . against which he could not guard, or which he could not prevent.” Of the two treatises cited, one, Shearman & Redfield on Negligence (3d ed. 1869), states at § 583 that “[i]t is well settled that the owner of a vessel which has been sunk in navigable waters, and abandoned by him, is under no obligation to remove the vessel ...” But the only case cited for this “well-settled” rule is King v. Watts.

      Moreover, it seems clear that the Winpenny court was not speaking of the “rule” that petitioners propose. That court, after the above quoted passage, went on as follows:
      “There seem to be good reasons for this rule. When a vessel is lost by the act of God, or by accident, the owner suffers oftentimes great damage, and when she becomes a total loss, it seems to be a great hardship to add to his misfortune the duty of removing the wreck. It would discourage commerce to hold him to so severe a duty; for who would engage in trade, if, when he 'has lost his vessel, he might be forced to incur an expense of more than her original cost in removing the wreck from some difficult position? If compelled by the accident to abandon his property, the duty of removal should rather fall on the public, who are interested in the navigation, than on him.”
      Cases cited for petitioners that do not rely on Winpenny either do not support petitioners’ claim of a nonstatutory rule, see, e. g., In re Highland Nav. Corp., 24 F. 2d 582 (D. C. S. D. N. Y. 1927), affirmed, 29 F. 2d 37 (C. A. 2d Cir. 1928); Zubik v. United States, 190 F. 2d 278 (C. A. 3d Cir. 1951); United States v. Bridgeport Towing Line, Inc., 15 F. 2d 240 (D. C. D. Conn. 1926), or support it only with unsupported dicta of their own, see, e. g., Barradough v. Brown, [1897] A. C. 615 (construing the Aire and Calder Navigation Act, 1889 (52 & 53 Vict., c. 32)).


source: Caselaw Access Project

author: Per Curiam. Mr. Justice Harlan,

license: Public Domain

text:
    LUCAS et al. v. RHODES, GOVERNOR OF OHIO, et al.
    No. 568.
    Decided December 4, 1967.

      Jack G. Day, Russell T. Adrine, Richard Gurm and Kenneth G. Weinberg for appellants.

      William B. Saxbe, Attorney General of Ohio, and J. Philip Redick, Assistant Attorney General, for appellees.
   Per Curiam.

The judgment is reversed and the cause is remanded to the United States District Court for the Northern District of Ohio. Wesberry v. Sanders, 376 U. S. 1 (1964).

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

Mr. Justice Harlan,

with whom Mr. Justice Stewart joins,

dissenting.

Because of the uninformative nature of the Court’s reversal, some exposition of the issue in this case is necessary as a predicate for my view that the judgment of the District Court should be affirmed. My point of departure is, of course, Wesberry v. Sanders, 376 U. S. 1, a decision with which I am in continuing disagreement, see 376 U. S., at 20 et seq., 50-51, but by which I consider myself bound.

The appellants, Ohio voters, challenge the constitutionality of Ohio’s 1964 congressional redistricting statute. They assert that the redistricting plan does not satisfy the standard of population equality laid down in Wesberry v. Sanders, supra, because some of the resulting districts vary as much as 13% above and 18% below the population average, according to the 1960 census. In the District Court, the appellees, state officials, defended on the ground that the Ohio Legislature had properly taken into account unofficial, post-1960 population figures which were available for some counties, and which seemed to bring the 1964 redistricting into line with Wesberry.

The majority below apparently held that these unofficial population statistics were insufficient to justify the disparity among districts because they were too unreliable and not available for all areas. However, the majority went on to uphold the districting plan because

“although the varied sources of population information used by the Ohio legislature may lack uniformity of the federal census and the percentage deviation between selected Ohio districts may exceed that generally found acceptable in other states, we are unable to find that resort to the 1960 federal census in 1967 will achieve a population disparity of any lesser degree.”

Given these circumstances, I believe that the Ohio plan has not been shown to be unconstitutional, even prima facie. This Court held in Wesberry, supra, at 7-8, that “as nearly as is practicable one man’s vote in a congressional election [must] be worth as much as another’s.” However, mathematical exactness was not required of a redistricting plan, 376 U. S., at 18, and what is marginally allowable in one State may be unacceptable in another, cf. Reynolds v. Sims, 377 U. S. 533, 578. It seems to me that by failing to heed the District Court’s evident recognition that substantial shifts in population among Ohio’s congressional districts had taken place since the federal census of 1960, this Court has now given to Wesberry a Procrustean tenor which the opinion in that case does not evince.

I would affirm the judgment of the District Court.


author: Per Curiam.

text:
    DOLOMITE PRODUCTS CO., INC. v. KIPERS et al., CONSTITUTING TOWN BOARD OF TOWN OF GATES, NEW YORK.
    No. 619.
    Decided December 4, 1967.

      Richard Maguire for appellant.

      William R. Durland and George C. Pendleton for appellees.
   Per Curiam.

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


text:
    BRESOLIN v. RHAY, PENITENTIARY SUPERINTENDENT.
    No. 4,
    Misc.
    Decided December 4, 1967.

      John J. O’Connell, Attorney General of Washington, and Stephen C. Way, Assistant Attorney General, for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is reversed. Mempa v. Rhay, ante, p. 128.


text:
    WALLACE, GOVERNOR OF ALABAMA, et al. v. UNITED STATES et al.
    No. 489.
    Decided December 4, 1967.

      MacDonald Gallion, Attorney General of Alabama, and John C. Satterfield for appellants in No. 489. Reid B. Barnes for appellants in No. 671.

      Acting Solicitor General Spritzer, Assistant Attorney General Doar, Louis F. Claiborne and David L. Norman for the United States in No. 489; Solicitor General Gris-wold and Assistant Attorney General Doar for the United States in No. 671; Fred D. Gray, Jack Greenberg, James M. Nabrit III, Charles H. Jones, Jr., Charles Stephen Ralston and Melvyn Zarr for Lee et al. in both eases, appellees.

      Together with No. 671, Bibb County Board of Education et al. v. United States et al., also on appeal from the same court.

   Per Curiam.

The motions to affirm are granted and the judgment is affirmed.


author: Per Curiam. Mr. Justice Douglas

text:
    GREYHOUND LINES, INC. v. UNITED STATES et al.
    No. 555.
    Decided December 4, 1967.

      Amos Mathews and Robert J. Bernard for appellant.

      Solicitor General Griswold, Assistant Attorney General Turner, Howard E. Shapiro, Robert W. Ginnane and Raymond M. Zimmet for the United States et al., and John L. Arrington, Jr., for Missouri, Kansas & Oklahoma Coach Lines, appellees.
   Per Curiam.

The motions to affirm are granted and the judgment is affirmed.

Mr. Justice Douglas

is of the opinion that probable jurisdiction should be noted.


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

text:
    UNITED MINE WORKERS OF AMERICA, DISTRICT 12 v. ILLINOIS STATE BAR ASSOCIATION et al.
    No. 33.
    Argued October 17, 1967.
    Decided December 5, 1967.

      Harrison Combs argued the cause for petitioner. With him on the briefs were Edmund Burke, Edward L. Carey, Willard P. Owens and M. E. Boiarsky.

      Bernard H. Bertrand argued the cause and filed a brief for respondents.

      Briefs of amici curiae, urging reversal, were filed by Jack Greenberg, James M. Nabrit III, Melvyn Zarr and Jay H. Topkis for the NAACP Legal Defense and Educational Fund et al., and by Victor Rabinowitz and Allan Brotsky for the National Lawyers Guild.

      Joseph A. Ball, John J. Goldberg and Samuel 0. Pruitt, Jr., filed a brief for the State Bar of California, as amicus curiae, urging affirmance.
   Mr. Justice Black

delivered the opinion of the Court.

The Illinois State Bar Association and others filed this complaint to enjoin the United Mine-Workers of America, District 12, from engaging in certain practices alleged to constitute the unauthorized practice of law. The essence of the complaint was that the Union had employed a licensed attorney on a salary basis to represent any of its members who wished his services to prosecute workmen's compensation claims before the Illinois Industrial Commission. The trial court found from facts that were not in dispute that employment of an attorney by the association for this purpose did constitute unauthorized practice and permanently enjoined the Union from “[ejmploying attorneys on salary or retainer basis to represent its members with respect to Workmen’s Compensation claims and any and all other claims which they may have under the statutes and laws of Illinois.” The Illinois Supreme Court rejected the Mine Workers’ contention that this decree abridged their freedom of speech, petition, and assembly under the First and Fourteenth Amendments and affirmed. We granted certiorari, 386 U. S. 941 (1967), to consider whether this holding conflicts with our decisions in Railroad Trainmen v. Virginia Bar, 377 U. S. 1 (1964), and NAACP v. Button, 371 U. S. 416 (1963).

As in the Trainmen case, we deal here with a program that has been in successful operation for the Union members for decades. Shortly after enactment of the Illinois Workmen’s Compensation Statute in 1911, the Mine Workers realized that some form of mutual protection was necessary to enable them to enjoy in practice the many benefits that the statute promised in theory. At the Union’s 1913 convention the secretary-treasurer reported that abuses had already developed: “the interests of the members were being juggled and even when not, they were required to pay forty or fifty per cent of the amounts recovered in damage suits, for attorney fees.” In response to this situation the convention instructed the Union’s incoming executive board to establish the “legal department” which is now attacked for engaging in the unauthorized practice of law.

The undisputed facts concerning the operation of the Union’s legal department are these. The Union employs one attorney on a salary basis to represent members and their dependents in connection with claims for personal injury and death under the Illinois Workmen’s Compensation Act. The terms of the attorney’s employment, as outlined in a letter from the acting president of the Union to the present attorney, include the following specific provision: “You will receive no further instructions or directions and have no interference from the District, nor from any officer, and your obligations and relations will be to and with only the several persons you represent.” The record shows no departure from this agreement. The Union provides injured members with forms entitled “Report to Attorney on Accidents” and advises them to fill out these forms and send them to the Union’s legal department. There is no language on the form which specifically requests the attorney to file with the Industrial Commission an application for adjustment of claim on behalf of the injured member, but when one of these forms is received, the attorney presumes that it does constitute such a request. The members may employ other counsel if they desire, and in fact the Union attorney frequently suggests to members that they can do so. In that event the attorney is under instructions to turn the member’s file over to the new lawyer immediately.

The applications for adjustment of claim are prepared by secretaries in the Union offices, and are then forwarded by the secretaries to the Industrial Commission. After the claim is sent to the Commission, the attorney prepares his case from the file, usually without discussing the claim with the member involved. The attorney determines what he believes the claim to be worth, presents his views to the attorney for the respondent coal company during prehearing negotiations, and attempts to reach a settlement. If an agreement between opposing counsel is reached, the Union attorney will notify the injured member, who then decides, in light of his attorney’s advice, whether or not to accept the offer. If no settlement is reached, a hearing is held before the Industrial Commission, and unless the attorney has had occasion to discuss a settlement proposal with the member, this hearing will normally be the first time the attorney and his client come into personal contact with each other. It is understood by the Union membership, however, that the attorney is available for conferences on certain days at particular locations. The full amount of any settlement or award is paid directly to the injured member. The attorney receives no part of it, his entire compensation being his annual salary paid by the Union.

The Illinois Supreme Court rejected petitioner’s contention that its members had a right, protected by the First and Fourteenth Amendments, to join together and assist one another in the assertion of their legal rights by collectively hiring an attorney to handle their claims. That court held that our decision in Railroad Trainmen v. Virginia Bar, supra, protected plans under which workers were advised to consult specific attorneys, but did not extend to protect plans involving an explicit hiring of such attorneys by the union. The Illinois court recognized that in NAACP v. Button, supra, we also held protected a plan under which the attorneys recommended to members were actually paid by the association, but the Illinois court viewed the Button case as concerned chiefly with litigation that can be characterized as a form of political expression. We do not think our decisions in Trainmen and Button can be so narrowly limited. We hold that the freedom of speech, assembly, and petition guaranteed by the First and Fourteenth Amendments gives petitioner the right to hire attorneys on a salary basis to assist its members in the assertion of their legal rights.

We start with the premise that the rights to assemble peaceably and to petition for a redress of grievances are among the most precious of the liberties safeguarded by the Bill of Rights. These rights, moreover, are intimately connected, both in origin and in purpose, with the other First Amendment rights of free speech and free press. “All these, though not identical, are inseparable.” Thomas v. Collins, 323 U. S. 516, 530 (1945). See De Jonge v. Oregon, 299 U. S. 353, 364 (1937). The First Amendment would, however, be a hollow promise if it left government free to destroy or erode its guarantees by indirect restraints so long as no law is passed that prohibits free speech, press, petition, or assembly as such. We have therefore repeatedly held that laws which actually affect the exercise of these vital rights cannot be sustained merely because they were enacted for the purpose of dealing with some evil within the State’s legislative competence, or even because the laws do in fact provide a helpful means of dealing with such an evil. Schneider v. State, 308 U. S. 147 (1939); Cantwell v. Connecticut, 310 U. S. 296 (1940).

The foregoing were the principles we invoked when we dealt in the Button and Trainmen cases with the right of an association to provide legal services for its members. That the States have broad power to regulate the practice of law is, of course, beyond question. See Trainmen, supra, at 6. But it is equally apparent that broad rules framed to protect the public and to preserve respect for the administration of justice can in their actual operation significantly impair the value of associational freedoms. Thus in Button, supra, we dealt with a plan under which the NAACP not only advised prospective litigants to seek the assistance of particular attorneys but in many instances actually paid the attorneys itself. We held the dangers of baseless litigation and conflicting interests between the association and individual litigants far too speculative to justify the broad remedy invoked by the State, a remedy that would have seriously crippled the efforts of the NAACP to vindicate the rights of its members in court. Likewise in the Trainmen case there was a theoretical possibility that the union’s interests would diverge from that of the individual litigant members, and there was a further possibility that if this divergence ever occurred, the union’s power to cut off the attorney’s referral business could induce the attorney to sacrifice the interests of his client. Again we ruled that this very distant possibility of harm could not justify a complete prohibition of the Trainmen’s efforts to aid one another in assuring that each injured member would be justly compensated for his injuries.

We think that both the Button and Trainmen cases are controlling here. The litigation in question is, of course, not bound up with political matters of acute social moment, as in Button, but the First Amendment does not protect speech and assembly only to the extent it can be characterized as political. “Great secular causes, with small ones, are guarded. The grievances for redress of which the right of petition was insured, and with it the right of assembly, are not solely religious or political ones. And the rights of free speech and a free press are not confined to any field of human interest.” Thomas v. Collins, supra, at 531. And of course in Trainmen, where the litigation in question was, as here, solely designed to compensate the victims of industrial accidents, we rejected the contention made in dissent, see 377 U. S., at 10 (Clark, J.), that the principles announced in Button were applicable only to litigation for political purposes. See 377 U. S., at 8.

Nor can the case at bar be distinguished from the Trainmen case in any persuasive way. Here, to be sure, the attorney is actually paid by the Union, not merely the beneficiary of its recommendations. But in both situations the attorney’s economic welfare is dependent to a considerable extent on the good will of the union, and if the temptation to sacrifice the client’s best interests is stronger in the present situation, it is stronger to a virtually imperceptible degree. In both cases, there was absolutely no indication that the theoretically imaginable divergence between the interests of union and member ever actually arose in the context of a particular lawsuit; indeed in the present case the Illinois Supreme Court itself described the possibility of conflicting interests as, at most, “conceivable].”

It has been suggested that the Union could achieve its goals by referring members to a specific lawyer or lawyers and then reimbursing the members out of a common fund for legal fees paid. Although a committee of the American Bar Association, in an informal opinion, may have approved such an arrangement, we think the view of the Illinois Supreme Court is more relevant on this point. In the present case itself the Illinois court stressed that where a union recommends attorneys to its members, “any ‘financial connection of any kind’ ” between the union and such attorneys is illegal. It cannot seriously be argued, therefore, that this alternative arrangement would be held proper under the laws of Illinois.

The decree at issue here thus substantially impairs the associational rights of the Mine Workers and is not needed to protect the State’s interest in high standards of legal ethics. In the many years the program has been in operation, there has come to light, so far as we are aware, not one single instance of abuse, of harm to clients, of any actual disadvantage to the public or to the profession, resulting from the mere fact of the financial connection between the Union and the attorney who represents its members. Since the operative portion of the decree prohibits any financial connection between the attorney and the Union, the decree cannot stand; and to the extent any other part of the decree forbids this arrangement it too must fall.

The judgment and decree are vacated and the case is remanded for proceedings not inconsistent with this opinion. It is so ordered.

Mr. Justice Stewart

concurs in the result upon the sole ground that the disposition of this case is controlled by Railroad Trainmen v. Virginia Bar, 377 U. S. 1.

Mr. Justice Harlan,

dissenting.

This decision cuts deeply into one of the most traditional of state concerns, the maintenance of high standards within the state legal profession. I find myself unable to subscribe to it.

The Canons of Professional Ethics of the Illinois State Bar Association forbid the unauthorized practice of law by any lay agency. The Illinois Supreme Court, acting in light of these canons and in exercise of its common-law power of supervision over the Bar, prohibited the United Mine Workers of America, District 12, from employing a salaried lawyer to represent its members in workmen’s compensation actions before the Illinois Industrial Commission. I do not believe that this regulation of the legal profession infringes upon the rights of speech, petition, or assembly of the Union’s members, assured by the Fourteenth Amendment.

I.

As I stated at greater length in my dissenting opinion in NAACP v. Button, 371 U. S. 415, 448, 452-455, the freedom of expression guaranteed against state interference by the Fourteenth Amendment includes the liberty of individuals not only to speak but also to unite to make their speech effective. The latter right encompasses the right to join together to obtain judicial redress. However, litigation is more than speech; it is conduct. And the States may reasonably regulate conduct even though it is related to expression. The pivotal point is how these competing interests should be resolved in this instance.

My brethren are apparently in accord. The majority begins by noting that this activity of the Union is related to expression and therefore is of a type which may be sheltered from state regulation by the Constitution. But the majority’s inquiry does not stop there; it goes on to examine the state concerns and concludes that the decree “is not needed to protect the State’s interest in high standards of legal ethics.” See ante, at 225. I agree, of course, with this “balancing” approach. See, e. g., NAACP v. Button, supra, at 452-455 (dissenting opinion) ; Konigsberg v. California Bar, 366 U. S. 36, 49-51; Talley v. California, 362 U. S. 60, 66 (concurring opinion). Indeed, I cannot conceive of any other sound method of attacking this type of problem. For if an “absolute” approach were adopted, as some members of this Court have from time to time insisted should be so with “First Amendment” cases, and the state interest in regulation given no weight, there would be no apparent reason why, for example, a group might not employ a layman to represent its members in court or before an agency because it felt that his low fee made up for his deficiencies in legal knowledge. Cf. Hackin v. Arizona, ante, p. 143 (Douglas, J., dissenting).

II.

Although I agree with the balancing approach employed by the majority, I find the scales tip differently. I believe that the majority has weighed the competing interests badly, according too much force to the claims of the Union and too little to those of the public interest at stake. As indicated previously, the interest of the Union stems from its members’ constitutionally protected right to seek redress in the courts or, as here, before an agency. By the plan at issue, the Union has sought to make it easier for members to obtain benefits under the Illinois Workmen’s Compensation Act. The plan is evidently designed to help injured union members in three ways: (1) by assuring that they will have knowledge of and access to an attorney capable of handling their claims; (2) by guaranteeing that they will not be charged excessive legal fees; and (3) by protecting them from crippling, even though reasonable, fees by making legal costs payable collectively through union dues. These are legitimate and laudable goals. However, the union plan is by no means necessary for their achievement. They all may be realized by methods which are proper under the laws of Illinois.

The Illinois Supreme Court in this case repeated its statement in a prior case that a union may properly make known to its members the names of attorneys it deems capable of handling particular types of claims. Such union notification would serve to assure union members of access to competent lawyers.

As regards the protection of union members against the charging of unreasonable fees, a fully efficient safeguard would seem to be found in the Illinois Workmen’s Compensation Act itself. An amendment to the Act in 1915, shortly after its initial passage, provided that the Industrial Commission

“shall have the power to determine the reasonableness and fix the amount of any fee or compensation charged by any person for any service performed in connection with this Act, or for which payment is to be made under this Act or rendered in securing any right under this Act.”

In 1927, the words “including attorneys, physicians, surgeons and hospitals” were added following the phrase “or compensation charged by any person.” Thus, there would now appear to be no reasonable grounds for fearing that union members will be subjected to excessive legal fees.

The final interest sought to be promoted by the present plan is in the collective payment of legal fees. That objective could presumably be realized by imposing assessments on union members for the establishment of a fund out of which injured members would be reimbursed for their legal expenses. There is no reason to believe that this arrangement would be improper under Illinois law, since the union’s obligation would run only to the member and there would be no financial connection between union and attorney.

The regulatory interest of the State in this instance is found in the potential for abuse inherent in the union plan. The plan operates as follows. The Union employs a licensed lawyer on a salary basis to represent members and their dependents in connection with their claims under the Workmen’s Compensation Act. Members are told that they may employ other attorneys if they wish. The attorney is selected by the Executive Board of District 12, and the terms of employment specify that the attorney’s sole obligation is to the person represented and that there will be no interference by the Union. Injured union members are furnished by the Union with a form which advises them to send the form to the Union’s legal department. Upon receipt of the form, the attorney assumes it to constitute a request that he file on behalf of the injured member a claim with the Industrial Commission, though no such explicit request is contained in the form. The application for compensation is prepared by secretaries in the union offices, and when complete it is sent directly to the Industrial Commission. In most instances, the attorney has neither seen nor talked with the union member at this stage, though the attorney is available for consultation at specified times. After the filing of the claim and prior to the hearing before the Commission, the attorney prepares for its presentation by resorting to his file and to the application, usually without conferring with the injured member. Ordinarily the member and this attorney first meet at the time of the hearing before the Commission.

The attorney determines what he thinks the claim to be worth and attempts to settle with the employer’s attorney during prehearing negotiations. If agreement is reached, the attorney recommends to the injured member that he accept the result. If no settlement occurs, a hearing on the merits is held before the Industrial Commission. The full amount of the settlement or award is paid to the injured member. The attorney retains for himself no part of the amount received, his sole compensation being his annual salary paid by the Union.

This union plan contains features which, in my opinion, Illinois may reasonably consider to present the danger of lowering the quality of representation furnished by the attorney to union members in the handling of their claims. The union lawyer has little contact with his client. He processes the applications of injured members on a mass basis. Evidently, he negotiates with the employer’s counsel about many claims at the same time. The State was entitled to conclude that, removed from ready contact with his client, insulated from interference by his actual employer, paid a salary independent of the results achieved, faced with a heavy caseload, and very possibly with other activities competing for his time, the attorney will be tempted to place undue emphasis upon quick disposition of each case. Conceivably, the desire to process forms rapidly might influence the lawyer not to check with his client regarding ambiguities or omissions in the form, or to miss facts and circumstances which face-to-face consultation with his client would have brought to light. He might be led, so the State might consider, to compromise cases for reasons unrelated to their own intrinsic merits, such as the need to “get on” with negotiations or a promise by the employer’s attorney of concessions relating to other cases. The desire for quick disposition also might cause the attorney to forgo appeals in some cases in which the amount awarded seemed unusually low.

III.

Thus, there is solid support for the Illinois Supreme Court’s conclusion that the union plan presents a danger of harm to the public interest in a regulated bar. The reasonableness of this result is further buttressed by the numerous prior decisions, both in Illinois and elsewhere, in which courts have prohibited the employment of salaried attorneys by groups for the benefit of their members.

The majority dismisses the State’s interest in regulation by pointing out that there have been no proven instances of abuse or actual disadvantage to union members resulting from the operation of the union plan. See ante, at 225. But the proper question is not whether this particular plan has in fact caused any harm. It is, instead, settled that in the absence of any dominant opposing interest a State may enforce prophylactic measures reasonably calculated to ward off foreseeable abuses, and that the fact that a specific activity has not yet produced any undesirable consequences will not exempt it from regulation. See, e. g., Hoopeston Canning Co. v. Cullen, 318 U. S. 313, 321-322; Daniel v. Family Sec. Life Ins. Co., 336 U. S. 220, 222-225.

It is also irrelevant whether we would proscribe the union plan were we sitting as state judges or state legislators. The sole issue before us is whether the Illinois Supreme Court is forbidden to do so because the plan unduly impinges upon rights guaranteed to the Union’s members by the Fourteenth Amendment. Since the finding that the union plan presents dangers to the public and legal profession is not an arbitrary one, and since the limitation upon union members is so slight, in view of the permissible alternatives still open to them, I would hold that there has been no denial of constitutional rights occasioned by Illinois’ prohibition of the plan.

H-i <1

This decision, which again manifests the peculiar insensitivity to the need for seeking an appropriate constitutional balance between federal and state authority that in recent years has characterized so many of the Court’s decisions under the Fourteenth Amendment, puts this Court more deeply than ever in the business of supervising the practice of law in the various States. From my standpoint, what is done today is unnecessary, undesirable, and constitutionally all wrong. In the absence of demonstrated arbitrary or discriminatory regulation, state courts and legislatures should be left to govern their own Bars, free from interference by this Court. Nothing different accords with longstanding and unquestioned tradition and with the most elementary demands of our federal system.

I would affirm.

       In addition to the portion just quoted, the court’s decree enjoins the Union from:
      “1. Giving legal counsel and advice
      “2. Rendering legal opinions
      “3. Representing its members with respect to Workmen’s Compensation claims and any and all other claims which they may have under the laws and statutes of the State of Illinois
      “4. [Quoted above]
      “5. Practicing law in any form either directly or indirectly.”
      It is conceded that the Union’s employment of an attorney was the basis for these other provisions of the injunction, and it was not claimed that the Union was otherwise engaged in the practice of law. Our opinion and holding is therefore limited to this one aspect of the Union’s activities.

       Ill. Rev. Stat., c. 48, §138.1 et seq. (1963).

       The Union’s present attorney, who was the only witness on this matter, testified that the application to be filed with the Industrial Commission was dictated by him to the secretaries, who prepared this form under his direction. R. 18, 40. See also R. 58 (Union’s answers to interrogatories).

       The freedoms protected against federal encroachment by the First Amendment are entitled under the Fourteenth Amendment to the same protection from infringement by the States. See, e. g.,

        New York Times Co. v. Sullivan, 376 U. S. 254, 276-277 (1964), and cases there cited.

       It is irrelevant that the litigation in Trainmen involved statutory-rights created by Congress, while the litigation in the present ease involved state-created rights. Our holding in Trainmen was based not on State interference with a federal program in violation of the Supremacy Clause but rather on petitioner’s freedom of speech, petition, and assembly under the First and Fourteenth Amendments, and this freedom is, of course, as extensive with respect to assembly and discussion related to matters of local as to matters of federal concern.

       American Bar Association, Standing Committee on Professional Ethics, Informal Opinion No. 469 (December 26, 1961). The ABA committee did not in fact consider the problem presented where the union not only pays the fee but also recommends the specific attorney, and it strongly implied that it would reach a different result in such a situation: “there is nothing unethical in the situations which you describe so long as the participation of the employer, association or union is confined to payment of or reimbursement for legal expenses only.”

       35 Ill. 2d 112, 118, 219 N. E. 2d 503, 506 (1966), quoting In re Brotherhood of R. R. Trainmen, 13 Ill. 2d 391, 150 N. E. 2d 163 (1958).

       Canons 35, 47, Canons of Ethics of the Illinois State Bar Association. These canons are identical to the corresponding canons of the American Bar Association.

       Even in the absence of applicable statutes, state courts have held themselves empowered to promulgate and enforce standards of professional conduct drawn from the common law and the closely related prohibitions of the Canons of Ethics. See, e. g., In re Maclub of America, Inc., 295 Mass. 45, 3 N. E. 2d 272, and cases therein cited. See generally Drinker, Legal Ethics 26-30, 35-48.

       This weighing of the competing interests involved is the same approach as that used in NAACP v. Button, 371 U. S. 415, and in Railroad Trainmen v. Virginia Bar, 377 U. S. 1. However, since a new balance must be struck whenever the competing interests are significantly different, this decision is not controlled by those cases. The union members in this case are not asserting legal rights which stem either from the Constitution or from a federal statute, sources of origin stressed respectively in Button, see 371 U. S., at 429-431, 441—444, and in Railroad Trainmen, see 377 U, S., at 3-6. Furthermore, the union plan at issue here differs from the referral practice involved in Railroad Trainmen because it involves the services of a union-salaried lawyer.
      Similarly, the interests in this case are very different from those in eases involving legal aid to the indigent. The situation of a salaried lawyer representing indigent clients was expressly distinguished by the court below. See 35 Ill. 2d 112, 121, 219 N. E. 2d- 503, 508.

       See, e. g., Lathrop v. Donohue, 367 U. S. 820, 865, 871-874 (dissenting opinion); Konigsberg v. California Bar, 366 U. S. 36, 56, 60-71 (dissenting opinion).

       Ill. Rev. Stat., c. 48, §138.1 et seq. (1963).

       See 35 Ill. 2d, at 118-119, 219 N. E. 2d, at 506-507. The earlier Illinois decision referred to was In re Brotherhood of R. R. Trainmen, 13 Ill. 2d 391, 150 N. E. 2d 163.

       It may be significant that the union plan was instituted in 1913, prior to this amendment of the Act. See ante, at 219.

       Ill. Laws, 1915, p. 408.

       Ill. Laws, 1927, p. 511.

       Cf. American Bar Association, Committee on Professional Ethics, Informal Opinion No. 469 (December 26, 1961) (union may reimburse member client for legal expenses).

       The salary paid at the time of this action was $12,400 per annum.

       The attorney employed by the Union in this case handled more than 400 workmen’s compensation claims a year.

       The attorney employed by the Mine Workers was also an Illinois state senator and had a private practice other than the Mine Workers’ representation.

       Of 351 workmen’s compensation cases, from all sources, which were appealed to the Illinois courts during the period 1936-1967, only one was appealed by a miner affiliated with District 12. No such miner has appealed since 1942. See Respondents’ Brief, at 17-18.

       See, e. g., People ex rel. Courtney v. Association of Beal Estate Tax-payers, 354 Ill. 102, 187 N. E. 823; In re Maclub of America, Inc., 295 Mass. 45, 3 N. E. 2d 272, and cases therein cited; Richmond Assn. of Credit Men, Inc. v. Bar Assn. of Richmond, 167 Va. 327, 189 S. E. 153. The Canons of Ethics of the American Bar Association have also been interpreted as forbidding arrangements of the kind at issue here. See American Bar Association, Committee on Unauthorized Practice of the Law, Informative Opinion No. A of 1950, 36 A. B. A. J. 677.

       It is possible that the operation of the plan did result in union members receiving a lower quality of legal representation than they otherwise would have had. For example, the Mine Workers’ present attorney recovered an average of $1,160 per case, while his predecessor secured an average of $1,350, even though the permissible rates of recovery were lower during the predecessor’s tenure. See Record, at 53-54, 58-60; Brief for Respondents 18. See also n. 14, supra.

       It has been suggested both in this case and elsewhere, cf. Hackin v. Arizona, ante, p. 143 (Douglas, J., dissenting), that prevailing Canons of Ethics and traditional customs in the legal profession will have to be modified to keep pace with the needs of new social developments, such as the Federal Poverty Program. That may well be true, but such considerations furnish no justification for today’s heavy-handed action by the Court. The American Bar Association and other bodies throughout the country already have such matters under consideration. See, e. g., 1964 ABA Reports 381-383 (establishment of Special Committee on Ethical Standards) ; 1966 ABA Reports 589-594 (Report of Special Committee on Availability of Legal Services); 39 Calif. State Bar Journal 639-742 (Report of Committee on Group Legal Services). Moreover, the complexity of these matters makes them especially suitable for experimentation at the local level. And, all else failing, the Congress undoubtedly has the power to implement federal programs by establishing overriding rules governing legal representation in connection therewith.


author: Mr. Justice Black

text:
    NASH v. FLORIDA INDUSTRIAL COMMISSION et al.
    No. 48.
    Argued November 9, 1967.
    Decided December 5, 1967.

      Michael H. Gottesman argued the cause for petitioner. With him on the briefs were Bernard Kleiman, Elliot Bredhoff, George H. Cohen, Jerome Cooper and Neal Rutledge.

      Glenn L. Greene, Jr., argued the cause and filed a brief for respondents Stanley Works et al.

      Solicitor General Marshall, Robert S. Rifkind, Arnold Ordman, Dominick L. Manoli and Norton J. Come filed a memorandum for the National Labor Relations Board, as amicus curiae, urging reversal.
   Mr. Justice Black

delivered the opinion of the Court.

Section 10 of the National Labor Relations Act, 49 Stat. 453, as amended, 29 U. S. C. § 160, authorizes the National Labor Relations Board to initiate unfair labor practice proceedings whenever some person charges that another person has committed such practices. The Board cannot start a proceeding without such a charge being filed with it. See, e. g., National Labor Relations Board v. National Licorice Co., 104 F. 2d 655 (C. A. 2d Cir.), modified on other grounds, 309 U. S. 350; Local 138, Operating Engineers (Skura), 148 N. L. R. B. 679, 681. The crucial question presented here is whether a State can refuse to pay its unemployment insurance to persons solely because they have preferred unfair labor practice charges against their former employer.

The facts are stipulated and need not be stated at length. The petitioner, Mrs. Nash, who previously had been out on strike against her employer, the Stanley Works and Stanley Building Specialties, was, pursuant to union-management agreement, reinstated to her former job on April 14, 1965. Approximately five weeks later, on May 16, 1965, she was laid off by the company because of alleged “slow production,” meaning that the company had insufficient work to warrant her retention. Mrs. Nash was unemployed from this time until October 5, 1965, when the company voluntarily called her back to work. She has been allowed unemployment compensation, under Florida Statutes, chapter 443, from the time of her discharge on May 16, up to June 17, but denied any compensation from June 17 to October 5. The reason given for this denial was that on June 17 she filed an unfair labor practice charge against her employer seeking reinstatement and back pay on the ground that the employer had actually laid her off because of her union activities in violation of the National Labor Relations Act, and that this charge was still pending on October 5 when she resumed work. In making this ruling the Florida Industrial Commission relied on § 443.06 of the Florida Unemployment Compensation Law which provides:

“An individual shall be disqualified for [unemployment] benefits .... (4) For any week with respect to which the commission finds that his total or partial unemployment is due to a labor dispute in active progress which exists at the factory, establishment or other premises at which he is or was last employed . . .

The Commission held that the filing of the unfair labor practice charge brought petitioner within the wording of the Act in that her “unemployment” then became “due to a labor dispute.” Thus the sole reason that petitioner was disqualified from compensation was that she filed an unfair labor practice charge. According to the Commission, the act of filing was the determinative factor under Florida law which rendered petitioner ineligible for unemployment compensation. The District Court of Appeal of Florida, Third District, denied per curiam petitioner’s application for writ of certiorari to review the determinations of the Florida Industrial Commission Unemployment Compensation Board of Review. Since such denial by the Florida District Court of Appeal apparently precludes further state review, we granted certiorari because of the important constitutional question involved, specifically whether the Commission’s ruling violates the Supremacy Clause of the Constitution (Art. VI, cl. 2) because it allegedly “frustrates” enforcement of the National Labor Relations Act, 49 Stat. 449, 29 U. S. C. § 151 et seq.

The National Labor Relations Act is a comprehensive code passed by Congress to regulate labor relations in activities affecting interstate and foreign commerce. As such it is of course the law of the land which no state law can modify or repeal. Implementation of the Act is dependent upon the initiative of individual persons who must, as petitioner has done here, invoke its sanctions through filing an unfair labor practice charge. Congress has made it clear that it wishes all persons with information about such practices to be completely free from coercion against reporting them to the Board. This is shown by its adoption of § 8 (a) (4) which makes it an unfair labor practice for an employer to discriminate against an employee because he has filed charges. See John Hancock Mutual Life Insurance Co. v. National Labor Relations Board, 89 U. S. App. D. C. 261, 263-264, 191 F. 2d 483, 485-486; National Labor Relations Board v. Lamar Creamery Co., 246 F. 2d 8, 9-10 (C. A. 5th Cir.); National Labor Relations Board v. Syracuse Stamping Co., 208 F. 2d 77, 80 (C. A. 2d Cir.). And it has been held that it is unlawful for an employer to seek to restrain an employee in the exercise of his right to file charges. National Labor Relations Board v. Clearfield Cheese Co., 213 F. 2d 70 (C. A. 3d Cir.); National Labor Relations Board v. Gibbs Corp., 308 F. 2d 247 (C. A. 5th Cir.); Roberts v. National Labor Relations Board, 121 U. S. App. D. C. 297, 350 F. 2d 427.

We have no doubt that coercive actions which the Act forbids employers and unions to take against persons making charges are likewise prohibited from being taken by the States. The action of Florida here, like the coercive actions which employers and unions are forbidden to engage in, has a direct tendency to frustrate the purpose of Congress to leave people free to make charges of unfair labor practices to the Board. Florida has applied its Unemployment Compensation Law so that an employee who believes he has been wrongly discharged has two choices: (1) he may keep quiet and receive unemployment compensation until he finds a new job or (2) he may file an unfair labor practice charge, thus under Florida procedure surrendering his right to unemployment compensation, and risk financial ruin if the litigation is protracted. Even the hope of a future award of back pay may mean little to a man of modest means and heavy responsibilities faced with the immediate severance of sustaining funds. It appears obvious to us that this financial burden which Florida imposes will impede resort to the Act and thwart congressional reliance on individual action. A national system for the implementation of this country’s labor policies is not so dependent on state law. Florida should not be permitted to defeat or handicap a valid national objective by threatening to withdraw state benefits from persons simply because they cooperate with the Government’s constitutional plan.

In holding that this Florida law as applied in this case conflicts with the Supremacy Clause of the Constitution we but follow the unbroken rule that has come down through the years.

In McCulloch v. Maryland, 4 Wheat. 316, 436, decided in 1819, this Court declared the States devoid of power “to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government.” In Davis v. Elmira Savings Bank, 161 U. S. 275, decided in 1896, this Court declared that a state law cannot stand that “either frustrates the purpose of the national legislation or impairs the efficiency of those agencies of the Federal government to discharge the duties, for the performance of which they were created.” Id., at 283. And again in Hill v. Florida, 325 U. S. 538, 542-543, decided in 1945, this Court struck down a labor regulation saying it stood “ 'as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. . . .’ ” Id., at 542.

All of the cases just cited and many more support our invalidation under the Supremacy Clause of the Florida Unemployment Compensation Law as here applied.

Reversed.

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

       The Florida Supreme Court seems to have decided that it lacks jurisdiction by appeal to consider per curiam denials of certiorari by the Florida District Court of Appeal. Callendar v. State, 181 So. 2d 529. While it is true that a district court of appeal may certify a question “of great public interest” to the Florida Supreme Court, this is done upon the district court of appeal's own motion, and although litigants may file a suggestion that a particular question be certified, such suggestion has been declared to have “no legal effect.” See Whitaker v. Jacksonville Expressway Authority, 131 So. 2d 22 (1st D. C. App. Fla. 1961). Thus, it is impossible for us to say that under Florida law petitioner here had any right to call upon the State Supreme Court for review. In these circumstances, we therefore are unable to say that the District Court of Appeal was not the highest court in Florida wherein a decision could be had as required by 28 U. S. C. § 1257 (3).

       Because of our disposition of the case on Supremacy Clause grounds, we need not consider petitioner’s alternative argument that such ruling violates her privileges and immunities of United States citizenship in contravention of the Fourteenth Amendment.

       Although § 10 (a) of the Act empowers the Board to prevent unfair labor practices, and thus to protect the employees’ § 7 rights, § 10 (b) conditions the exercise of that power on the filing of charges; the Board cannot initiate its own processes.

       Respondents suggest that petitioner might enjoy a windfall if she was paid compensation and was subsequently awarded back pay by the Labor Board. This argument is unresponsive to the issue in dispute, however, since a State is free to recoup compensation payments made during any period covered by a back-pay award. See National Labor Relations Board v. Gullett Gin Co., 340 U. S. 361, 365, n. 1.