author: Mr. Justice Black Mr. Justice Douglas, Mr. Justice Brennan,

text:
    EVANS et al. v. ABNEY et al.
    No. 60.
    Argued November 12-13, 1969
    Decided January 26, 1970

      James M. Nabrit III argued the cause for petitioners. With him on the brief were William H. Alexander, Jack Greenberg, Charles L. Black, Jr., and Anthony G. Amsterdam.

      Frank C. Jones argued the cause for respondents. With him on the brief was Charles M. Cork.

      Deputy Solicitor General Claiborne, by special leave of Court, argued the cause for the United States as amicus curiae urging reversal.
   Mr. Justice Black

delivered the opinion of the Court.

Once again this Court must consider the constitutional implications of the 1911 will of United States Senator A. O. Bacon of Georgia which conveyed property in trust to Senator Bacon’s home city of Macon for the creation of a public park for the exclusive use of the white people of that city. As a result of our earlier decision in this case which held that the park, Baconsfield, could not continue to be operated on a racially discriminatory basis, Evans v. Newton, 382 U. S. 296 (1966), the Supreme Court of Georgia ruled that Senator Bacon’s intention to provide a park for whites only had become impossible to fulfill and that accordingly the trust had failed and the parkland and other trust property had reverted by operation of Georgia law to the heirs of the Senator. 224 Ga. 826, 165 S. E. 2d 160 (1968). Petitioners, the same Negro citizens of Macon who have sought in the courts to integrate the park, contend that this termination of the trust violates their rights to equal protection and due process under the Fourteenth Amendment. We granted certiorari because of the importance of the questions involved. 394 U. S. 1012 (1969). For the reasons to be stated, we are of the opinion that the judgment of the Supreme Court of Georgia should be, and it is, affirmed.

The early background of this litigation was summarized by Mr. Justice Douglas in his opinion for the Court in Evans v. Newton, 382 U. S., at 297-298:

“In 1911 United States Senator Augustus O. Bacon executed a will that devised to the Mayor and Council of the City of Macon, Georgia, a tract of land which, after the death of the Senator’s wife and daughters, was to be used as ‘a park and pleasure ground’ for white people only, the Senator stating in the will that while he had only the kindest feeling for the Negroes he was of the opinion that ‘in their social relations the. two races (white and negro) should be forever separate.’ The will provided that the park should be under the control of a Board of Managers of seven persons, all of whom were to be white. The city kept the park segregated for some years but in time let Negroes use it, taking the position that the park was a public facility which it could not constitutionally manage and maintain on a segregated basis.
“Thereupon, individual members of the Board of Managers of the park brought this suit in a state court against the City of Macon and the trustees of certain residuary beneficiaries of Senator Bacon’s estate, asking that the city be removed as trustee and that the court appoint new trustees, to whom title to the park would be transferred. The city answered, alleging it could not legally enforce racial segregation in the park. The other defendants admitted the allegation and requested that the city be removed as trustee.
“Several Negro citizens of Macon intervened, alleging that the racial limitation was contrary to the laws and public policy of the United States, and asking that the court refuse to appoint private trustees. Thereafter the city resigned as trustee and amended its answer accordingly. Moreover, other heirs of Senator Bacon intervened and they and the defendants other than the city asked for reversion of the trust property to the Bacon estate in the event that the prayer of the petition were denied.
“The Georgia court accepted the resignation of the city as trustee and appointed three individuals as new trustees, finding it unnecessary to pass on the other claims of the heirs. On appeal by the Negro intervenors, the Supreme Court of Georgia affirmed, holding that Senator Bacon had the right to give and bequeath his property to a limited class, that charitable trusts are subject to supervision of a court of equity, and that the power to appoint new trustees so that the purpose of the trust would not fail was clear. 220 Ga. 280, 138 S. E. 2d 573.”

The Court ill Evans v. Newton, supra, went on to reverse the judgment of the Georgia Supreme Court and to hold that the public character of Baconsfield “requires that it be treated as a public institution subject, to the command of the Fourteenth Amendment, regardless of who now has title under state law.” 382 U. S., at 302. Thereafter, the Georgia Supreme Court interpreted this Court’s reversal of its decision as requiring that Bacons-field be henceforth operated on a nondiscriminatory basis. “Under these circumstances,” the state high court held, “we are of the opinion that the sole purpose for which the trust was created has become impossible of accomplishment and has been terminated.” Evans v. Newton, 221 Ga. 870, 871, 148 S. E. 2d 329, 330 (1966). Without further elaboration of this holding, the case was remanded to the Georgia trial court to consider the motion of Guyton G. Abney and others, successor trustees of Senator Bacon’s estate, for a ruling that the trust had become unenforceable and that accordingly the trust property had reverted to the Bacon estate and to certain named heirs of the Senator. The motion was opposed by petitioners and by the Attorney General of Georgia, both of whom argued that the trust should be saved by applying the cy pres doctrine to amend the terms of the will by striking the racial restrictions and opening Baconsfield to all the citizens of Macon without regard to race or color. The trial court, however, refused to apply cy pres. It held that the doctrine was inapplicable because the park’s segregated, whites-only character was an essential and inseparable part of the testator’s plan. Since the “sole purpose” of the trust was thus in irreconcilable conflict with the constitutional mandate expressed in our opinion in Evans v. Newton, the trial court ruled that the Baconsfield trust had failed and that the trust property had by operation of law reverted to the heirs of Senator Bacon. On appeal, the Supreme Court of Georgia affirmed.

We are of the opinion that in ruling as they did the Georgia courts did no more than apply well-settled general principles of Georgia law to determine the meaning and effect of a Georgia will. At the time Senator Bacon made his will Georgia cities and towns were, and they still are, authorized to accept devises of property for the establishment and preservation of “parks and pleasure grounds” and to hold the property thus received in charitable trust for the exclusive benefit of the class of persons named by the testator. Ga. Code Ann., c. 69-5 (1967); Ga. Code Ann. §§ 108-203, 108-207 (1959). These provisions of the Georgia Code explicitly authorized the testator to include, if he should choose, racial restrictions such as those found in Senator Bacon’s will. The city accepted the trust with these restrictions in it. When this Court in Evans v. Newton, supra, held that the continued operation of Baconsfield as a segregated park was unconstitutional, the particular purpose of the Baconsfield trust as stated in the will failed under Georgia law. The question then properly before the Georgia Supreme Court was whether as a matter of state law the doctrine of cy pres should be applied to prevent the trust itself from failing. Petitioners urged that the cy pres doctrine allowed the Georgia courts to strike the racially restrictive clauses in Bacon’s will so that the terms of the trust could be fulfilled without violating the Constitution.

The Georgia cy pres statutes upon which petitioners relied provide:

“When a valid charitable bequest is incapable for some reason of execution in the exact manner provided by the testator, donor, or founder, a court of equity will carry it into effect in such a way as will as nearly as possible effectuate his intention.” Ga. Code Ann. § 108-202 (1959).
“A devise or bequest to a charitable use will be sustained and carried out in this State; and in all cases where there is a general intention manifested by the testator to effect a certain purpose, and the particular mode in which he directs it to be done shall fail from any cause, a court of chancery may, by approximation, effectuate the purpose in a manner most similar to that indicated by the testator.” Ga. Code Ann. § 113-815 (1959).

The Georgia courts have held that the fundamental purpose of these cy pres provisions is to allow the court to carry out the general charitable intent of the testator where this intent might otherwise be thwarted by the impossibility of the particular plan or scheme provided by the testator. Moss v. Youngblood, 187 Ga. 188, 200 S. E. 689 (1938). But this underlying logic of the cy pres doctrine implies that there is a certain class of cases in which the doctrine cannot be applied. Professor Scott in his treatise on trusts states this limitation on the doctrine of cy pres which is common to many States as follows:

“It is not true that a charitable trust never fails where it is impossible to carry out the particular purpose of the testator. In some cases ... it appears that the accomplishment of the particular purpose and only that purpose was desired by the testator and that he had no more general charitable intent and that he would presumably have preferred to have the whole trust fail if the particular purpose is impossible of accomplishment. In such a case the cy pres doctrine is not applicable.” 4 A. Scott, The Law of Trusts § 399, p. 3085 (3d ed. 1967).

In this case, Senator Bacon provided an unusual amount of information in his will from which the Georgia courts could determine the limits of his charitable purpose. Immediately after specifying that the park should be for “the sole, perpetual and unending, use, benefit and enjoyment of the white women, white girls, white boys and white children of the City of Macon,” the Senator stated that “the said property under no circumstances ... (is) to be ... at any time for any reason devoted to any other purpose or use excepting so far as herein specifically authorized.” And the Senator continued:

“I take occasion to say that in limiting the use and enjoyment of this property perpetually to white people, I am not influenced by any unkindness of feeling or want of consideration for the Negroes, or colored people. On the contrary I have for them the kindest feeling, and for many of them esteem and regard, while for some of them I have sincere personal affection.
“I am, however, without hesitation in the opinion that in their social relations the two races . . . should be forever separate and that they should not have pleasure or recreation grounds to be used or enjoyed, together and in common.”

The Georgia courts, construing Senator Bacon’s will as a whole, Yerbey v. Chandler, 194 Ga. 263, 21 S. E. 2d 636 (1942), concluded from this and other language in the will that the Senator’s charitable intent was not “general” but extended only to the establishment of a segregated park for the benefit of white people. The Georgia trial court found that “Senator Bacon could not have used language more clearly indicating his intent that the benefits of Baconsfield should be extended to white persons only, or more clearly indicating that this limitation was an essential and indispensable part of his plan for Baconsfield.” App. 519. Since racial separation was found to be an inseparable part of the testator’s intent, the Georgia courts held that the State’s cy pres doctrine could not be used to alter the will to permit racial integration. See Ford v. Thomas, 111 Ga. 493, 36 S. E. 841 (1900); Adams v. Bass, 18 Ga. 130 (1855). The Baconsfield trust was therefore held to have failed, and, under Georgia law, “[wjhere a trust is expressly created, but [its] uses . . . fail from any cause, a resulting trust is implied for the benefit of the grantor, or testator, or his heirs.” Ga. Code Ann. § 108-106 (4) (1959). The Georgia courts concluded, in effect, that Senator Bacon would have rather had the whole trust fail than have Baconsfield integrated.

When a city park is destroyed because the Constitution requires it to be integrated, there is reason for everyone to be disheartened. We agree with petitioners that in such a case it is not enough to find that the state court’s result was reached through the application of established principles of state law. No state law or act can prevail in the face of contrary federal law, and the federal courts must search out the fact and truth of any proceeding or transaction to determine if the Constitution has been violated. Presbyterian Church v. Hull Church, 393 U. S. 440 (1969); New York Times Co. v. Sullivan, 376 U. S. 254 (1964). Here, however, the action of the Georgia Supreme Court declaring the Baconsfield trust terminated presents no violation of constitutionally protected rights, and any harshness that may have resulted from the state court’s decision can be attributed solely to its intention to effectuate as nearly as possible the explicit terms of Senator Bacon’s will.

Petitioners first argue that the action of the Georgia court violates the United States Constitution in that it imposes a drastic “penalty,” the “forfeiture” of the park, merely because of the city’s compliance with the constitutional mandate expressed by this Court in Evans v. Newton. Of course, Evans v. Newton did not speak to the problem of whether Baconsfield should or could continue to operate as a park; it held only 'that its continued operation as a park had to be without racial discrimination. But petitioners now want to extend that holding to forbid the Georgia courts from closing Baconsfield on the ground that such a closing would penalize the city and its citizens for complying with the Constitution. We think, however, that the will of Senator Bacon and Georgia law provide all the justification necessary for imposing such a “penalty.” The construction of wills is essentially a state-law question, Lyeth v. Hoey, 305 U. S. 188 (1938), and in this case the Georgia Supreme Court, as we read its opinion, interpreted Senator Bacon’s will as embodying a preference for termination of the park rather than its integration. Given this, the Georgia court had no alternative under its relevant trust laws, which are long standing and neutral with regard to race, but to end the Baconsfield trust and return the property to the Senator’s heirs.

A second argument for petitioners stresses the similarities between this case and the case in which a city holds an absolute fee simple title to a public park and then closes that park of its own accord solely to avoid the effect of a prior court order directing that the park be integrated as the Fourteenth Amendment commands. Yet, assuming arguendo that the closing of the park would in those circumstances violate the Equal Protection Clause, that case would be clearly distinguishable from the case at bar because there it is the State and not a private party which is injecting the racially discriminatory motivation. In the case at bar there is not the slightest indication that any of the Georgia judges involved were motivated by racial animus or discriminatory intent of any sort in construing and enforcing Senator Bacon’s will. Nor is there any indication that Senator Bacon in drawing up his will was persuaded or induced to include racial restrictions by the fact that such restrictions were permitted by the Georgia trust statutes. Supra, at 439-440. On the contrary, the language of the Senator’s will shows that the racial restrictions were solely the product of the testator’s own full-blown social philosophy. Similarly, the situation presented in this case is also easily distinguishable from that presented in Shelley v. Kraemer, 334 U. S. 1 (1948), where we held unconstitutional state judicial action which had affirmatively enforced a private scheme of discrimination against Negroes. Here the effect of the Georgia decision eliminated all discrimination against Negroes in the park by eliminating the park itself, and the termination of the park was a loss shared equally by the white and Negro citizens of Macon since both races would have enjoyed a constitutional right of equal access to the park’s facilities had it continued.

Petitioners also contend that since Senator Bacon did not expressly provide for a reverter in the event that the racial restrictions of the trust failed, no one can know with absolute certainty that the Senator would have preferred termination of the park rather than its integration, and the decision of the Georgia court therefore involved a matter of choice. It might be difficult to argue with these assertions if they stood alone, but then petitioners conclude: “Its [the court’s] choice, the anti-Negro choice, violates the Fourteenth Amendment, whether it be called a 'guess,’ an item in 'social philosophy,’ or anything else at all.” We do not understand petitioners to be contending here that the Georgia judges were motivated either consciously or unconsciously by a desire to discriminate against Negroes. In any case, there is, as noted above, absolutely nothing before this Court to support a finding of such motivation. What remains of petitioners’ argument is the idea that the Georgia courts had a constitutional obligation in this case to resolve any doubt about the testator’s intent in favor of preserving the trust. Thus stated, we see no merit in the argument. The only choice the Georgia courts either had or exercised in this regard was their judicial judgment in construing Bacon’s will to determine his intent, and the Constitution imposes no requirement upon the Georgia courts to approach Bacon’s will any differently than they would approach any will creating any charitable trust of any kind. Surely the Fourteenth Amendment is not violated where, as here, a state court operating in its judicial capacity fairly applies its normal principles of construction to determine the testator’s true intent in establishing a charitable trust and then reaches a conclusion with regard to that intent which, because of the operation of neutral and nondiscriminatory state trust laws, effectively denies everyone, whites as well as Negroes, the benefits of the trust.

Another argument made by petitioners is that the decision of the Georgia courts holding that the Bacons-field trust had “failed” must rest logically on the unspoken premise that the presence or proximity of Negroes in Baconsfield would destroy the desirability of the park for whites. This argument reflects a rather fundamental misunderstanding of Georgia law. The Baconsfield trust “failed” under that law not because of any belief on the part of any living person that whites and Negroes might not enjoy being together but, rather, because Senator Bacon who died many years ago intended that the park remain forever for the exclusive use of white people.

Petitioners also advance a number of considerations of public policy in opposition to the conclusion which we have reached. In particular, they regret, as we do, the loss of the Baconsfield trust to the City of Macon, and they are concerned lest we set a precedent under which other charitable trusts will be terminated. It bears repeating that our holding today reaffirms the traditional role of the States in determining whether or not to apply their cy pres doctrines to particular trusts. Nothing we have said here prevents a state court from applying its cy pres rule in a case where the Georgia court, for example, might not apply its rule. More fundamentally, however, the loss of charitable trusts such as Baconsfield is part of the price we pay for permitting deceased persons to exercise a continuing control over assets owned by them at death. This aspect of freedom of testation, like most things, has its advantages and disadvantages. The responsibility of this Court, however, is to construe and enforce the Constitution and laws of the land as they are and not to legislate social policy on the basis of our own personal inclinations.

In their lengthy and learned briefs, the petitioners and the Solicitor General as amicus curiae have advanced several arguments which we have not here discussed. We have carefully examined each of these arguments, however, and find all to be without merit.

The judgment is

Affirmed.

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

Mr. Justice Douglas,

dissenting.

Bacon’s will did not leave any remainder or reversion in “Baconsfield” to his heirs. He left “all remainders and reversions and every estate in the same of whatsoever kind” to the City of Macon. He further provided that the property “under no circumstances, or by any authority whatsoever” should “be sold or alienated or disposed of, or at any time for any reason” be “devoted to any other purpose or use excepting so far as herein specifically authorized.”

Giving the property to the heirs, rather than reserving it for some municipal use, does therefore as much violence to Bacon’s purpose as would a conversion of an “all-white” park into an “all-Negro” park.

No municipal use is of course possible where the beneficiaries are members of one race only. That was true in 1911 when Bacon made his will. Plessy v. Ferguson, 163 U. S. 537, decided in 1896, had held that while “separate” facilities could be supplied each race, those facilities had to be “equal.” The concept of “equal” in this .setting meant not just another park for Negroes but one equal in quality and service to that municipal facility which is furnished the whites. See Sweatt v. Painter, 339 U. S. 629, 633-634. It is apparent that Bacon’s will projected a municipal use which at the time was not constitutionally permissible unless like accommodations were made for the Negro race.

So far as this record reveals, the day the present park was opened to whites it may, constitutionally speaking, also have been available to Negroes.

The Supreme Court of Georgia stated that the sole purpose for which the trust was created had become impossible. But it was impossible in those absolute terms even under the regime of Plessy v. Ferguson. As to cy pres, the Georgia statute provides:

“When a valid charitable bequest is incapable for some reason of execution in the exact manner provided by the testator, donor, or founder, a court of equity will carry it into effect in such a way as will as nearly as possible effectuate his intention.” Ga. Code Ann. § 108-202 (1959).

The Georgia court held that the doctrine of cy pres “can not be applied to establish a trust for an entirely different purpose from that intended by the testator.” 224 Ga. 826, 830, 165 S. E. 2d 160, 164. That, however, does not state the issue realistically. No proposal to bar use of the park by whites has ever been made, except the reversion ordered to the heirs. Continuation of the use of the property as a municipal park or for another municipal purpose carries out a larger share of Bacon’s purpose than the complete destruction of such use by the decree we today affirm.

The purpose of the will was to dedicate the land for some municipal use. That is still possible. Whatever that use, Negroes will of course be admitted, for such is the constitutional command. But whites will also be admitted. Letting both races share the facility is closer to a realization of Bacon’s desire than a complete destruction of the will and the abandonment of Bacon’s desire that the property be used for some municipal purpose.

Bacon, in limiting the use of this park property “to white people,” expressed the view that “in their social relations the two races (white and negro) should be forever separate and that they should not have pleasure or recreation grounds to be used or enjoyed, together and in common.” Can we possibly say that test puts a curse on each and every municipal use — music festivals, medical clinics, hospitals?

Moreover, putting the property in the hands of the heirs will not necessarily achieve the racial segregation that Bacon desired. We deal with city real estate. If a theatre is erected, Negroes cannot be excluded. If a restaurant is opened, Negroes must be served. If office or housing structures are erected, Negro tenants must be eligible. If a church is erected, mixed marriage ceremonies may be performed. If a court undertook to attach a racial-use condition to the property once it became “private,” that would be an unconstitutional covenant or condition.

Bacon’s basic desire can be realized only by the repeal of the Fourteenth Amendment. So the fact is that in the vicissitudes of time there is no constitutional way to assure that this property will not serve the needs of Negroes.

The Georgia decision, which we today approve, can only be a gesture toward a state-sanctioned segregated way of life, now passé. It therefore should fail as the imposition of a penalty for obedience to a principle of national supremacy.

Mr. Justice Brennan,

dissenting.

For almost half a century Baconsfield has been a public park. Senator Bacon’s will provided that upon the death of the last survivor among his widow and two daughters title to Baconsfield would vest in the Mayor and Council of the City of Macon and their successors forever. Pursuant to the express provisions of the will, the Mayor and City Council appointed a Board of Managers to supervise the operation of the park, and from time to time these same public officials made appointments to fill vacancies on the Board. Senator Bacon also bequeathed to the city certain bonds which provided income used in the operation of the park.

The city acquired title to Baconsfield in 1920 by purchasing the interests of Senator Bacon’s surviving daughter and another person who resided on the land. Some $46,000 of public money was spent over a number of years to pay the purchase price. From the outset and throughout the years the Mayor and City Council acted as trustees, Baconsfield was administered as a public park. T. Cleveland James, superintendent of city parks during this period, testified that when he first worked at Baconsfield it was a “wilderness . . . nothing there but just undergrowth everywhere, one road through there and that’s all, one paved road.” He said there were no park facilities at that time. In the 1930’s Baconsfield was transformed into a modern recreational facility by employees of the Works Progress Administration, an agency of the Federal Government. WPA did so upon the city’s representation that Bacons-field was a public park. WPA employed men daily for the better part of a year in the conversion of Baconsfield to a park. WPA and Mr. James and his staff cut underbrush, cleared paths, dug ponds, built bridges and benches, planted shrubbery, and, in Mr. James’ words, “just made a general park out of it.” Other capital improvements were made in later years with both federal and city money. The Board of Managers also spent funds to improve and maintain the park.

Although the Board of Managers supervised operations, general maintenance of Baconsfield was the responsibility of the city’s superintendent of parks. Mr. James was asked whether he treated Baconsfield about the same as other city parks. He answered, “Yes, included in my appropriation . . . .” The extent of the city’s services to Baconsfield is evident from the increase of several thousand dollars in the annual expenses incurred for maintenance by the Board of Managers after the Mayor and City Council withdrew as trustees in 1964.

The city officials withdrew after suit was brought in a Georgia court by individual members of the Board of Managers to compel the appointment of private trustees on the ground that the public officials could not enforce racial segregation of the park. The Georgia court appointed private trustees, apparently on the assumption that they would be free to enforce the racially restrictive provision in Senator Bacon’s will. In Evans v. Newton, 382 U. S. 296 (1966), we held that the park had acquired such unalterable indicia of a public facility that for the purposes of the Equal Protection Clause it remained “public” even after the city officials were replaced as trustees by a board of private citizens. Consequently, Senator Bacon’s discriminatory purpose could not be enforced by anyone. This Court accordingly reversed the Georgia court’s acceptance of the city officials’ resignations and its appointment of private trustees. On remand the Georgia courts held that since Senator Bacon’s desire to restrict the park to the white race could not be carried out, the trust failed and the property must revert to his heirs. The Court today holds that that result and the process by which it was reached do not constitute a denial of equal protection. I respectfully dissent.

No record could present a clearer case of the closing of a public facility for the sole reason that the public authority that owns and maintains it cannot keep it segregated. This is not a case where the reasons or motives for a particular action are arguably unclear, cf. Palmer v. Thompson, 419 F. 2d 1222 (C. A. 5th Cir. 1969) (en banc), nor is it one where a discriminatory purpose is one among other reasons, cf. Johnson v. Branch, 364 F. 2d 177 (C. A. 4th Cir. 1966), nor one where a discriminatory purpose can be found only by inference, cf. Gomillion v. Ldghtfoot, 364 U. S. 339 (1960). The reasoning of the Georgia Supreme Court is simply that Senator Bacon intended Baconsfield to be a segregated public park, and because it cannot be operated as a segregated public park any longer, Watson v. Memphis, 373 U. S. 526 (1963); see Mayor & City Council of Baltimore v. Dawson, 350 U. S. 877 (1955), the park must be closed down and Baconsfield must revert to Senator Bacon’s heirs. This Court agrees that this “city park is [being] destroyed because the Constitution require[s] it to be integrated . . . .” No one has put forward any other reason why the park is reverting from the City of Macon to the heirs of Senator Bacon. It is therefore quite plain that but for the constitutional prohibition on the operation of segregated public parks, the City of Macon would continue to own and maintain Baconsfield.

I have no doubt that a public park may constitutionally be closed down because it is too expensive to run or has become superfluous, or for some other reason, strong or weak, or for no reason at all. But under the Equal Protection Clause a State may not close down a public facility solely to avoid its duty to desegregate that facility. In Griffin v. County School Board, 377 U. S. 218, 231 (1964), we said, “Whatever nonracial grounds might support a State’s allowing a county to abandon public schools, the object must be a constitutional one, and grounds of race and opposition to desegregation do not qualify as constitutional.” In this context what is true of public schools is true of public parks. When it is as starkly clear as it is in this case that a public facility would remain open but for the constitutional command that it be operated on a nonsegregated basis, the closing of that facility conveys an unambiguous message of community involvement in racial discrimination. Its closing for the sole and unmistakable purpose of avoiding desegregation, like its operation as a segregated park, “generates [in Negroes] a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” Brown v. Board of Education, 347 U. S. 483, 494 (1954). It is no answer that continuing operation as a segregated facility is a constant reminder of a public policy that stigmatizes one race, whereas its closing occurs once and is over. That difference does not provide a constitutional distinction: state involvement in discrimination is unconstitutional, however short-lived.

The Court, however, affirms the judgment of the Georgia Supreme Court on the ground that the closing of Baconsfield did not involve state action. The Court concedes that the closing of the park by the city “solely to avoid the effect of a prior court order directing that the park be integrated” would be unconstitutional. However, the Court finds that in this case it is not the State or city but “a private party which is injecting the racially discriminatory motivation,” ante, at 445. The exculpation of the State and city from responsibility for the closing of the park is simply indefensible on this record. This discriminatory closing is permeated with state action: at the time Senator Bacon wrote his will Georgia statutes expressly authorized and supported the precise kind of discrimination provided for by him; in accepting title to the park, public officials of the City of Macon entered into an arrangement vesting in private persons the power to enforce a reversion if the city should ever incur a constitutional obligation to desegregate the park; it is a public park that is being closed for a discriminatory reason after having been operated for nearly half a century as a segregated public facility; and it is a state court that is enforcing the racial restriction that keeps apparently willing parties of different races from coming together in the park. That is state action in overwhelming abundance. I need emphasize only three elements of the state action present here.

First, there is state action whenever a State enters into an arrangement that creates a private right to compel or enforce the reversion of a public facility. Whether the right is a possibility of reverter, a right of entry, an executory interest, or a contractual right, it can be created only with the consent of a public body or official, for example the official action involved in Macon’s acceptance of the gift of Baconsfield. The State’s involvement in the creation of such a right is also involvement in its enforcement; the State’s assent to the creation of the right necessarily contemplates that the State will enforce the right if called upon to do so. Where, as in this case, the State’s enforcement role conflicts with its obligation to comply with the constitutional command against racial segregation the attempted enforcement must be declared repugnant to the Fourteenth Amendment.

Moreover, a State cannot divest itself by contract of the power to perform essential governmental functions. E. g., Contributors to the Pennsylvania Hospital v. City of Philadelphia, 245 U. S. 20 (1917); Stone v. Mississippi, 101 U. S. 814 (1880). Thus a State cannot bind itself not to operate a public park in accordance with the Equal Protection Clause, upon pain of forfeiture of the park. The decision whether or not a public facility shall be operated in compliance with the Constitution is an essentially governmental decision. An arrangement that purports to prevent a State from complying with the Constitution cannot be carried out, Evans v. Newton, supra; see Pennsylvania v. Board of Directors, 353 U. S. 230 (1957). Nor can it be enforced by a reversion; a racial restriction is simply invalid when intended to bind a public body and cannot be given any effect whatever, cf. Pennsylvania v. Brown, 392 F. 2d 120 (C. A. 3d Cir. 1968).

Initially the City of Macon was willing to comply with its constitutional obligation to desegregate Baconsfield. For a time the city allowed Negroes to use the park, “taking the position that the park was a public facility which it could not constitutionally manage and maintain on a segregated basis.” Evans v. Newton, supra, at 297, But the Mayor and Council reneged on their constitutional duty when the present litigation began, and instead of keeping Baconsfield desegregated they sought to sever the city’s connection with it by resigning as trustees and telling Superintendent James to stop maintaining the park. The resolution of the Mayor and Council upon their resignation as trustees makes it very clear that the probability of a reversion had induced them to abandon desegregation. Private interests of the sort asserted by the respondents here cannot constitutionally be allowed to control the conduct of public affairs in that manner.

A finding of discriminatory state action is required here on a second ground. Shelley v. Kraemer, 334 U. S. 1 (1948), stands at least for the proposition that where parties of different races are willing to deal with one another a state court cannot keep them from doing so by enforcing a privately devised racial restriction. See also Sweet Briar Institute v. Button, 280 F. Supp. 312 (D. C. W. D. Va. 1967) (state attorney general enjoined from enforcing privately devised racial restriction). Nothing in the record suggests that after our decision in Evans v. Newton, supra, the City of Macon retracted its previous willingness to manage Baconsfield on a nonsegregated basis, or that the white beneficiaries of Senator Bacon’s generosity were unwilling to share it with Negroes, rather than have the park revert to his heirs. Indeed, although it may be that the city would have preferred to keep the park segregated, the record suggests that, given the impossibility of that goal, the city wanted to keep the park open. The resolution by which the Mayor and Council resigned as trustees prior to the decision in Evans v. Newton, supra, reflected, not opposition to the admission of Negroes into the park, but a fear that if Negroes were admitted the park would be lost to the city. The Mayor and Council did not participate in this litigation after the decision in Evans v. Newton. However, the Attorney General of Georgia was made a party after remand from this Court, and, acting “as parens patriae in all legal matters pertaining to the administration and disposition of charitable trusts in the State of Georgia in which the rights of beneficiaries are involved,” he opposed a reversion to the heirs and argued that Baconsfield should be maintained “as a park for all the citizens of the State of Georgia.” Thus, so far as the record shows, this is a case of a state court’s enforcement of a racial restriction to prevent willing parties from dealing with one another. The decision of the Georgia courts thus, under Shelley v. Kraemer, constitutes state action denying equal protection.

Finally, a finding of discriminatory state action is required on a third ground. In Reitman v. Mulkey, 387 U. S. 369 (1967), this Court announced the basic principle that a State acts in violation of the Equal Protection Clause when it singles out racial discrimination for particular encouragement, and thereby gives it a special preferred status in the law, even though the State does not itself impose or compel segregation. This approach to the analysis of state action was foreshadowed in Mr. Justice White’s separate opinion in Evans v. Newton, supra. There Mr. Justice White comprehensively reviewed the law of trusts as that law stood in Georgia in 1905, prior to the enactment of §§ 69-504 and 69-505 of the Georgia Code. He concluded that prior to the enactment of those statutes “it would have been extremely doubtful” whether Georgia law authorized “a trust for park purposes when a portion of the public was to be excluded from the park.” 382 U. S., at 310. Sections 69-504 and 69-505 removed this doubt by expressly permitting dedication of land to the public for use as a park open to one race only. Thereby Georgia undertook to facilitate racial restrictions as distinguished from all other kinds of restriction on access to a public park. Reitman compels the conclusion that in doing so Georgia violated the Equal Protection Clause.

In 1911, only six years after the enactment of §§ 69-504 and 69-505, Senator Bacon, a lawyer, wrote his will. When he wrote the provision creating Baconsfield as a public park open only to the white race, he was not merely expressing his own testamentary intent, but was taking advantage of the special power Georgia had conferred by § § 69-504 and 69-505 on testators seeking to establish racially segregated public parks. As Mr. Justice White concluded in Evans v. Newton, “ ‘the State through its regulations has become involved to such a significant extent’ in bringing about the discriminatory provision in Senator Bacon’s trust that the racial restriction ‘must be held to reflect . . . state policy and therefore to violate the Fourteenth Amendment.’ ” 382 U. S., at 311. This state-encouraged testamentary provision is the sole basis for the Georgia courts’ holding that Bacons-field must revert to Senator Bacon’s heirs. The Court’s finding that it is not the State of Georgia but “a private party which is injecting the racially discriminatory motivation” inexcusably disregards the State’s role in enacting the statute without which Senator Bacon could not have written the discriminatory provision.

This, then, is not a ease of private discrimination. It is rather discrimination in which the State of Georgia is “significantly involved,” and enforcement of the reverter is therefore unconstitutional. Cf. Burton v. Wilmington Parking Authority, 365 U. S. 715 (1961); Robinson v. Florida, 378 U. S. 153 (1964).

I would reverse the judgment of the Supreme Court of Georgia.

       See, e. g., First Universalist Society v. Swett, 148 Me. 142, 90 A. 2d 812 (1952); LaFond v. City of Detroit, 357 Mich. 362, 98 N. W. 2d 530 (1959).

       Although Senator Bacon’s will did not contain an express provision granting a reverter to any party should the trust fail, § 108-106 (4) of the Georgia Code quoted in the text makes such an omission irrelevant under state law. At one point in the Senator’s will he did grant “all remainders and reversions” to the city of Macon, but the Supreme Court of Georgia showed in its opinion that this language did not relate in any way to what should happen upon a failure of the trust but was relevant only to the initial vesting of the property in the city. The Georgia court said:
      “Senator Bacon devised a life estate in the trust property to his wife and two daughters, and the language pointed out by the intervenors appears in the following provision of the will: ‘When my wife, Virginia Lamar Bacon and my two daughters, Mary Louise Bacon Sparks and Augusta Lamar Bacon Curry, shall all have departed this life, and immediately upon the death of the last survivor of them, it is my will that all right, title and interest in and to said property hereinbefore described and bounded, both legal and equitable, including all remainders and reversions and every estate in the same of whatsoever kind, shall thereupon vest in and belong to the Mayor and Council of the City of Macon, and to their successors forever, in trust etc.’ This language concerned remainders and reversions prior to the vesting of the legal title in the City of Macon, as trustee, and not to remainders and reversions occurring because of a failure of the trust-, which Senator Bacon apparently did not contemplate, and for which he made no provision.” 224 Ga. 826, 831, 165 S. E. 2d 160, 165.


source: Caselaw Access Project

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

license: Public Domain

text:
    BREEN v. SELECTIVE SERVICE LOCAL BOARD NO. 16 et al.
    No. 65.
    Argued November 19, 1969
    Decided January 26, 1970

      Emanuel Margolis argued the cause for petitioner. With him on the brief were Lawrence P. Weisman and Melvin L. Wulf.

      Assistant Attorney General Ruckelshaus argued the cause for respondents. With him on the brief were Attorney General Mitchell, Assistant Attorney General Wilson, Morton Hollander, and Ralph A. Fine.

      George Soli and Joseph B. Robison filed a brief for the American Jewish Congress as amicus curiae urging reversal.
   Mr. Justice Black

delivered the opinion the Court.

This case raises a question concerning the right of a young man ordered to report for induction into the Armed Forces to challenge the legality of that order prior to reporting for duty. Petitioner Breen, while enrolled in the Berklee School of Music in Boston, Massachusetts, was given a II-S student classification by his local draft board, and deferred from military service pursuant to the provisions of the Military Selective Service Act of 1967, 81 Stat. 100, 50 U. S. C. App. § 451 et seq. (1964 ed. and Supp. IV). According to an agreed stipulation of facts, in November 1967 he surrendered his draft registration card to a minister at a public gathering “for the sole purpose of protesting United States involvement in the war in Vietnam.” Shortly thereafter his local draft board declared he was “delinquent” for failing to have his draft card in his possession and at the same time reclassified him I-A— available for military service. He appealed this reclassification to the appropriate Selective Service Appeal Board, and while that appeal was pending filed this suit in the United States District Court in February 1968, seeking an injunction against any possible induction into the Armed Forces on the ground that his delinquency reclassification was invalid. The respondent local board moved to dismiss the suit for want of jurisdiction, relying on § 10 (b) (3) of the Act which provides that:

“No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution instituted under section 12 of this title, after the registrant has responded either affirmatively or negatively to an order to report for induction . . . ,” 50 U. S. C. App. § 460 (b)(3) (1964 ed., Supp. IV).

The District Court granted the motion to dismiss and Breen appealed that decision to the Court of Appeals. While the appeal was pending, we rendered our decision in Oestereich v. Selective Service Bd., 393 U. S. 233 (1968), holding that §10 (b)(3) did not bar pre-induction judicial review in the circumstances presented in that case. Although Breen argued that Oestereich controlled his own case, the Court of Appeals affirmed the District Court’s dismissal of the suit, with one judge dissenting, holding that Oestereich did not cover this case and § 10 (b) (3) therefore required dismissal of the suit. 406 F. 2d 636 (C. A. 2d Cir. 1969). We granted a petition for certiorari, 394 U. S. 997 (1969), and, because we conclude that Oestereich does control this case, we reverse the judgment of the Court of Appeals.

In Oestereich a student preparing for the ministry surrendered his draft registration card in protest against the war in Vietnam and was reclassified as a “delinquent.” He then filed suit seeking to enjoin his induction, claiming that he was being inducted contrary to the clear statutory requirement that students preparing for the ministry “shall be exempt from training and service” under the Act, 50 U. S. C. App. §456 (g). We held in that case that since Congress had unambiguously said that students preparing for the ministry were not to be drafted and, since there was no indication in the statute that such exemptions could be denied for “delinquency,” Oestereich’s induction was unlawful and in such a case § 10 (b) (3) would not be interpreted to bar pre-induction judicial review and thereby force the registrant to submit to an illegal induction or risk the possibility of a criminal prosecution to regain his exempt status.

In the present case petitioner Breen argues that he, like Oestereich, should not be inducted and he relies on § 6 (h)(1) of the Act, which provides that:

“Except as otherwise provided in this paragraph, the President shall, under such rules and regulations as he may prescribe, provide for the deferment from training and service in the Armed Forces of persons satisfactorily pursuing a full-time course of instruction at a college, university, or similar institution of learning and who request such deferment.” 50 U. S. C. App. § 456 (h)(1) (1964 ed., Supp. IV).

In his complaint Breen alleged that he was a 20-year-old student and argued that he was clearly qualified for a student deferment. The Government has never contested Breen's factual allegations concerning his student status, nor has it argued that he is not qualified for such a deferment for any reason except the alleged “delinquency.'' As in Oestereich, we do not find any indication that Congress intended to allow the draft boards to deprive otherwise qualified students of their deferments for the reasons relied upon in this case.

In concluding that Oestereich did not control this case, the Court of Appeals felt that the reference in § 6 (h)(1) to “such rules and regulations as [the President] may prescribe” was an indication that Congress authorized revocation of student deferments for violations of the delinquency regulations. 406 F. 2d, at 638. That conclusion must be rejected for several reasons. The explicit language of the Act provides that the President “shall” provide for the deferment of undergraduate students except as otherwise provided by the terms of the Act itself, and Congress then set forth the specific conditions that a student must meet to qualify for such a deferment. The reference to “rules and regulations” is clearly intended only to authorize such additional administrative procedures as the President may find necessary to insure that all qualified students are given the deferment that Congress provided in § 6. There is nothing in the language of the Act itself that indicates a congressional desire to allow the President to add to or subtract from the factors specified in the statute for determining when students would be deferred. The legislative history of §6 (h)(1) clearly indicates that Congress intended that only the conditions specified in that section need be met to warrant a student deferment. Prior to the 1967 Act the draft law stated that student deferments were provided only according to presidential regulation and in practice such deferments were subject to the discretion of the local draft boards. The committee reports and floor debates on the 1967 Act show that a primary purpose of the amendments was to eliminate this local option and provide clear, uniform standards for undergraduate student deferments. When Congress thus acted to replace discretionary standards with explicit requirements for student deferments, it did not specifically provide or in any way indicate that such deferred status could be denied because the registrant failed to possess his registration certificate. Finally, any contention that “delinquency” induction is proper in this case must be rejected for the reasons set forth in our decision in Gutknecht v. United States, ante, p. 295, holding that induction pursuant to the delinquency regulations has not been authorized by Congress.

The Attorney General advances another argument for distinguishing this case from Oestereich, supra. He points out that Oestereich met the requirements for a statutory “exemption” from military service, while Breen is at best qualified only for a statutory “deferment.” On the basis of this observation he urges that the provisions of § 10 (b) (3) preclude pre-induction judicial review in all cases of deferments and that Oestereich provides an exception only in certain cases where an exemption is claimed. We fail to see any relevant practical or legal differences between exemptions and deferments. The effect of either type of classification is that the registrant cannot be inducted as long as he remains so classified. Congress has specifically said that the only persons who may be inducted into the Armed Forces are those “who are liable for such training and service and who at the time of selection are registered and classified, but not deferred or exempted.” 50 U. S. C. App. § 455 (a)(1) (1964 ed., Supp. IV). (Emphasis added.) Thus it is clear that the crucial distinction in draft classifications is between individuals presently subject to induction and those who are not so subject, either because of deferment or exemption.

The Attorney General also argues that a rational distinction exists in the statutory scheme between deferments which merely postpone the time when a registrant will serve and exemptions which place the registrant “outside the manpower pool.” Brief for the Respondents 20-21. A careful reading of the entire Act indicates that no such consistent distinction is preserved. Congress has provided that “[n]o . . . exemption or deferment . . . shall continue after the cause therefor ceases to exist.” 50 U. S. C. App. §456 (k). Many of the “exemptions” are not absolute, as the Attorney General implies, but conditioned on certain factors. Thus an exempt ministerial student like Oestereich will lose that exempt status if he withdraws from study in preparation for the ministry. Similarly exempt veterans can be inducted into the Armed Forces if Congress declares a war or national emergency. 50 U. S. C. App. § 456 (b). On the other hand there is absolutely no assurance that an individual who is simply deferred will only have his military obligation postponed. So long as a registrant remains in a deferred classification he cannot be inducted, and deferment past the maximum age of draft liability would effectively exempt the registrant from compulsory military service. Although a registrant like Breen cannot be deferred as an undergraduate student past his 24th birthday, he may continue to be deferred on the basis of extreme hardship to dependents or employment in the national interest. 50 U. S. C. App. §456 (h)(1) (1964 ed., Supp. IV). There is thus no statutory scheme to permanently exempt certain individuals while only deferring service for others. Both deferments and exemptions accomplish the same congressional purpose, that of not inducting certain registrants at a particular time.

We are consequently unable to distinguish this case from Oestereich. In both situations a draft registrant who was required by the -relevant law not to be inducted was in fact ordered to report for military service. In both cases the order for induction involved a “clear departure by the Board from its statutory mandate,” Oestereich, supra, at 238, and in both cases § 10 (b) (3) of the Act should not have been construed to require the registrants to submit to induction or risk criminal prosecution to test the legality of the induction order. The judgment below is reversed and the case remanded for further proceedings in conformity with this opinion.

Reversed and remanded.

Mr. Justice Harlan,

concurring.

While I fully agree with today’s holding that pre-induction review is available to the petitioner here, and subscribe to much of the Court’s opinion, I would rest the holding on a different footing.

The Court’s opinion here, as in Oestereich v. Selective Service Bd., 393 U. S. 233 (1968), appears to make the availability of pre-induction review turn on the lawfulness of the draft board’s action or, to put it another way, on the certainty with which the reviewing court can determine that the registrant would prevail on the merits if there were such judicial review of his classification. On the other hand, under the test put forward in my separate opinion in Oestereich, 393 U. S., at 239-246, the availability of pre-induction review turns, not on what amounts to an advance decision on the merits, but rather on the nature of the challenge being made.

In Oestereich, the registrant sought pre-induction review of claims that the delinquency procedure employed by the board was “not authorized by any statute,” was “inconsistent with his statutory exemption,” and was “facially unconstitutional,” 393 U. S., at 239. I pointed out that judicial scrutiny of such legal contentions, unlike the review of “factual and discretionary decisions” pertaining to a board’s classification of a particular registrant, presented no “opportunity for protracted delay” in the operations of the Selective Service System — the primary congressional concern in enacting § 10 (b)(3), 393 U. S., at 241. To avoid the “serious constitutional problems” implicit in depriving a registrant of “his liberty without the prior opportunity to present to any competent forum” his claims that the delinquency procedure was invalid, 393 U. S., at 243, I therefore interpreted §10 (b)(3) not to preclude pre-induction judicial review. Viewed from the perspective of my opinion in Oestereich, this case is indistinguishable, for the petitioner here, as in Oestereich, makes legal challenges to the delinquency procedure that do not require review of a factual and discretionary decision of a board.

As to the merits of petitioner’s challenges, I agree, for the reasons stated by the majority, that it makes no difference that through the operation of the delinquency regulations Breen lost a II-S student deferment whereas Oestereich lost a IV-D exemption as a divinity student preparing for the ministry. More generally, the delinquency regulations used here have now been held to be unauthorized by statute, Gutknecht v. United States, ante, p. 295.

On this basis, I concur in the reversal of the judgment below.

Mr. Justice Brennan,

concurring.

In Oestereich v. Selective Service Board, 393 U. S. 233 (1968), I joined Mr. Justice Stewart’s dissent expressing the view that § 10 (b) (3) was designed to permit judicial review of draft classifications only in connection with criminal prosecutions or habeas corpus proceedings, 393 IJ. S., at 245. But continued adherence to that construction is foreclosed by the Court’s holding in that case that § 10 (b) (3) did not preclude pre-induction judicial review of the case of a registrant entitled to a statutory exemption. Therefore, because I too “fail to see any relevant practical or legal differences between exemptions and deferments,” I join the opinion of the Court.

Mr. Justice Stewart,

with whom The Chief Justice joins, concurring in part.

For the reasons expressed by Mr. Justice Brennan, I join the opinion of the Court insofar as it holds that the District Court had jurisdiction to entertain the petitioner’s suit and should have granted him the injunction he sought. I do not, however, join the Court’s opinion insofar as it holds that the delinquency regulations have not been authorized by Congress. See Gutknecht v. United States, ante, p. 314 (concurring in judgment).

       This reclassification was undertaken pursuant to 32 CFR § 1642.12.

       Although this provision would appear to preclude judicial review by habeas corpus after the registrant submitted to induction, we have already construed the statute to allow such review. Oestereich v. Selective Service Bd., 393 U. S. 233, 235, 238 (1968).

       During the pendency of that appeal the Appeal Board upheld the reclassification and the local board then ordered Breen to report for induction. The induction order has been stayed pending decision in this case.

       The Act also provides that student deferment status may be lost under certain conditions.
      “A deferment granted to any person under [this provision] shall continue until such person completes the requirements for his baccalaureate degree, fails to pursue satisfactorily a full-time course of instruction, or attains the twenty-fourth anniversary of the date of his birth, whichever first occurs.” 50 U. S. C. App. § 456 (h) (1) (1964 ed., Supp. IV). There is no contention raised here that Breen has lost his deferred status for any of these statutory reasons.

       The Act does allow the President to restrict student deferments on a finding that the needs of the Armed Forces require such action, 50 U. S. C. App. §456 (h)(1) (1964 ed., Supp. IV), but he has not made any such finding at this time.

       See Selective Service Act of 1948, §6(h), 62 Stat. 611, as amended. The regulations promulgated pursuant to this authority permitted student deferments in the discretion of the local boards with certain suggested guidelines. See 32 CFR, §§ 1622.25, 1622.25a (1967 ed.).

       H. R. Rep. No. 267, 90th Cong., 1st Sess., 25-26 (1967); H. R. Conf. Rep. No. 346, 90th Cong., 1st Sess., reprinted in U. S. Code Cong. & Admin. News, 90th Cong., 1st Sess., 1352, 1356-1359 (1967); 113 Cong. Rec. 14093, 14095, 16434 (1967).

       The suggestion that the fleeting reference to “delinquents” in § 6 (h) (1) of the Act, 50 U. S. C. App. § 456 (h) (1) (1964 ed., Supp. IV), authorizes delinquency inductions must be rejected for the reasons set forth in Oestereich, supra, at 236-237, and in Gutknecht v. United States, ante, at 302.

       This statutory directive is implemented by 32 CFR § 1631.7.

       See n. 4, supra.


author: Mr. Justice Marshall Mr. Justice Douglas,

text:
    GOLDSTEIN, aka PIETRARU, et al. v. COX et al.
    No. 66.
    Argued November 17, 1969
    Decided January 26, 1970

      John R. Vintilla argued the cause for appellants. With him on the brief were Emanuel Eschwege and Novak N. Marku.

      Daniel M. Cohen, Assistant Attorney General of New York, argued the cause for appellees. With him on the brief were Louis J. Lefkowitz, Attorney General, and Samuel A. Hirshowitz, First Assistant Attorney General.

      Martin Popper filed briefs for Wolf Popper Ross Wolf & Jones as amicus curiae.

   Mr. Justice Marshall

delivered the opinion of the Court.

Appellants are beneficiaries of New York decedents’ estates who live in Romania. Their shares of these estates have not been distributed to them, but have been paid into court for their benefit under § 2218 of the New York Surrogate’s Court Procedure Act. Section 2218 authorizes the surrogate to order an alien’s share of a New York estate paid into court when it appears that the alien “would not have the benefit or use or control of the money or other property” constituting the share.

In 1966, appellants filed a complaint in the United States District Court for the Southern District of New York, challenging what is now § 2218 on the grounds that it denied them due process and equal protection, that it unconstitutionally intruded upon the Federal Government’s conduct of foreign relations, and that it conflicted with federal regulations permitting the payment of federal funds to persons in Romania. Appellants prayed for both temporary and permanent injunctive relief against further operation of the statute, and therefore requested the impaneling of a three-judge court. A single district judge declined to request a three-judge court on the ground that the constitutional questions raised were frivolous, and the Court of Appeals for the Second Circuit affirmed. This Court granted certiorari, vacated the judgment, and remanded the case to the Court of Appeals for further consideration in the light of Zschernig v. Miller, 389 U. S. 429, decided the same day. 389 U. S. 581 (1968). On remand, the Court of Appeals reversed the original order of the District Court, and remanded the case for consideration by a three-judge court. 391 F. 2d 586 (C. A. 2d Cir. 1968).

Appellants then moved for summary judgment, urging that § 2218 was unconstitutional, either on its face or as applied, under the principles of Zschernig v. Miller, supra. In their motion they requested “the relief demanded in the complaint.” They accompanied their motion with an affidavit, largely consisting of a memorandum of law arguing that the application of § 2218 by the New York courts ran afoul of Zschernig.

Appellees, surrogates of several New York counties, opposed the motion for summary judgment and further requested that the action be dismissed. In their accompanying affidavit, they argued that § 2218 was constitutional on its face and that there was at least a triable issue of fact whether it was being constitutionally applied.

The District Court denied summary judgment, but did not dismiss the action. 299 F. Supp. 1389 (D. C. S. D. N. Y. 1968). In its opinion it held that §2218 was not unconstitutional on its face under Zschernig, and that the only reported post-Zschernig construction of the statute, Matter of Leikind, 22 N. Y. 2d 346, 239 N. E. 2d 550 (1968), app. docketed, No. 68, O. T. 1969, did not show unconstitutional application.

From the order denying summary judgment, appellants took an appeal to this Court, claiming that we had jurisdiction under 28 U. S. C. § 1253, which provides:

“Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.”

Appellees did not oppose jurisdiction, but rather filed a motion to affirm. We noted probable jurisdiction, 394 U. S. 996 (1969), and received briefs and heard argument confined to the merits. Further examination of the case since oral argument has for the first time raised the question of our jurisdiction, and we have concluded that we lack jurisdiction of the appeal.

A preliminary question is whether the District Court’s order denying summary judgment to a plaintiff who has requested injunctive relief is “an order . . . denying . . . an . . . injunction” within the meaning of § 1253. In construing the analogous provision giving the courts of appeals jurisdiction to hear appeals from interlocutory orders granting or denying injunctions, 28 U. S. C. § 1292 (a)(1), this Court has ruled that a denial of summary judgment is no.t an appealable order denying an injunction, at least where the denial is based upon the existence of a triable issue of fact. Switzerland Assn. v. Horne’s Market, 385 U. S. 23 (1966). However we need not decide whether the same treatment should be given to denials of summary judgment under § 1253, for we conclude that the only interlocutory orders that we have power to review under that provision are orders granting or denying preliminary injunctions. Since in our view the District Court here decided no question of preliminary-injunctive relief, we cannot review its order.

Section 1253, along with the other provisions concerning three-judge district courts, 28 U. S. C. §§ 2281-2284 (a collectivity hereinafter referred to as the Three-Judge Court Act), derives from §266 of the Judicial Code of 1911, 36 Stat. 1162, which in turn derived from § 17 of the Mann-Elkins Act of 1910, 36 Stat. 557. As originally enacted, the Three-Judge Court Act required that no interlocutory injunction restraining the operation of any state statute on constitutional grounds could be issued, except by a three-judge court, and provided that “[a]n appeal may be taken directly to the Supreme Court of the United States from the order granting or denying . . . an interlocutory injunction in such case.” 36 Stat. 557. The Act grew out of the public furor over what was felt to be the abuse by federal district courts of their injunctive powers in cases involving state economic and social legislation. While broad and radical proposals were made to deal with the problem, including proposals to deprive the federal courts of all jurisdiction to enjoin state officers, Congress compromised on a provision that would deal with what was felt to be the worst abuse— the issuance of temporary restraining orders and preliminary injunctions against state statutes, either ex parte or merely upon affidavits, and subject to limited and ineffective appellate review. See Phillips v. United States, 312 U. S. 246, 250 (1941); Hutcheson, A Case for Three Judges, 47 Harv. L. Rev. 795, 803-810 (1934); Note, The Three-Judge District Court and Appellate Review, 49 Va. L. Rev. 538, 539-543 (1963).

Until 1925, the Act required a three-judge court only on application for an interlocutory (or, as we would say, preliminary) injunction. In that year, the Act was amended to carry the three-judge requirement forward to the issuance of a permanent injunction, 43 Stat. 938, “in order to avoid the anomalous result of having a single judge review the decree of three judges at the final hearing.” Note, 49 Ya. L. Rev., supra, at 543. The provision governing appeal to this Court was correspondingly amended to allow direct appeal from “a final decree granting or denying a permanent injunction . . . .” 43 Stat. 938.

Thus, as of 1925, the provisions of the Three-Judge Court Act relating to appeal to this Court, set out in the Judicial Code, as amended, read as follows:

“An appeal may be taken directly to the Supreme Court of the United States from the order granting or denying, after notice and hearing, an interlocutory injunction in such case. . . .” 36 Stat. 557.
“. . . and a direct appeal to the Supreme Court may be taken from a final decree granting or denying a permanent injunction in such suit.” 43 Stat. 938. (Emphasis added.)

As clearly as language can, this language confined this Court’s review of three-judge court action to (1) final judgments granting or denying permanent injunctions, and (2) interlocutory orders granting or denying preliminary injunctions.

In 1948, the present Judicial Code was enacted, including § 1253 as it now stands. As the language now reads, the Court has appellate jurisdiction over any three-judge court order “granting or denying ... an interlocutory or permanent injunction.” On its face, this language is subject to the construction that interlocutory orders denying permanent as well as preliminary injunctions can be appealed to this Court. However, such a construction would involve *an expansion of this Court’s mandatory appellate jurisdiction over that granted by the clear language of the prior statute. The Reviser’s Note to § 1253 indicates no intent to make such a substantive change; indeed, it refers to the section as merely a consolidation of prior provisions in Title 28, themselves derived from the statute as adopted and amended by Congress.

This Court has more than once stated that its jurisdiction under the Three-Judge Court Act is to be narrowly construed since “any loose construction of the requirements of [the Act] would defeat the purposes of Congress ... to keep within narrow confines our appellate docket.” Phillips v. United States, supra, at 250. See Stainback v. Mo Hock Ke Lok Po, 336 U. S. 368, 375 (1949); Moore v. Fidelity & Deposit Co., 272 U. S. 317, 321 (1926). That canon of construction must be applied with redoubled vigor when the action sought to be reviewed here is an interlocutory order of a trial court. In the absence of clear and explicit authorization by Congress, piecemeal appellate review is not favored, Switzerland Assn. v. Horne’s Market, supra, at 24, and this Court above all others must limit its review of interlocutory orders. Hamilton Shoe Co. v. Wolf Brothers, 240 U. S. 251, 258 (1916). In light of these factors, and the history of the statute as set out above, we cannot but conclude that our jurisdiction over interlocutory orders under § 1253 is confined to orders granting or denying a preliminary injunction.

As we read the record, this is not such an order. Appellants did, in their original complaint, pray for preliminary as well as permanent injunctive relief. And in moving for summary judgment, they requested “the relief demanded in the complaint.” However, they took no practical step toward obtaining such relief. They filed no separate application for a preliminary injunction. In none of their papers, in the District Court or in this Court, have they urged the appropriateness of temporary relief. The District Court in its opinion in no way adverted to the possibility of such relief being granted. Indeed, in the nature of the case, preliminary injunctive relief could never have been a practical possibility. Appellants are seeking the release of funds held in court in New York to beneficiaries outside the jurisdiction of the United States. Any injunction granting relief of this sort must necessarily have been final in its effect, and could hardly have been awarded in the absence of a final determination on the merits in appellants’ favor. Since the order here in question is an interlocutory one, and is not an order granting or denying a preliminary injunction, we must dismiss the appeal from that order for want of jurisdiction.

It is so ordered.

Mr. Justice Douglas,

with whom Mr. Justice Black concurs,

dissenting.

If summary judgment had been granted to appellants there would be no question but that this Court would have jurisdiction under 28 U. S. C. § 1253 over an appeal from that judgment, as it would constitute an “order granting ... an interlocutory or permanent injunction.” Similarly, there seems little room for argument that the denial of summary judgment to appellants constitutes an order “denying ... an interlocutory or permanent injunction,” since such injunctive relief was requested in appellants’ complaint. The majority opinion relies on Switzerland Assn. v. Horne’s Market, 385 U. S. 23, as authority for dismissing this appeal for want of jurisdiction under 28 U. S. C. § 1253. In that case, however, the denial of summary judgment was based solely on the existence of a triable issue of fact; the summary judgment did not concern in any way the merits of the case. This case involves more. Appellants claimed that § 2218 of the New York Surrogate’s Court Procedure Act was unconstitutional on its face. The denial of summary judgment constituted a rejection of this claim on the merits, as well as a denial of injunctive relief based on that claim. On this basis, I would find jurisdiction under 28 U. S. C. i 1253 to decide this appeal on the merits.

       Section 2218 (Supp. 1969), formerly §269-a of the New York Surrogate’s Court Act, reads as follows:
      “1. (a) Where it shall appear that an alien legatee, distributee or beneficiary is domiciled or resident within a country to which checks or warrants drawn against funds of the United States may not be transmitted by reason of any executive order, regulation or similar determination of the United States government or any department or agency thereof, the court shall direct that the money or property to which such alien would otherwise be entitled shall be paid into court for the benefit of said alien or the person or persons who thereafter may appear to be entitled thereto. The money or property so paid into court shall be paid out only upon order of the surrogate or pursuant to the order or judgment of a court of competent jurisdiction.
      “(b) Any assignment of a fund which is required to be deposited pursuant to the provisions of paragraph one (a) of this section shall not be effective to confer upon the assignee any greater right to the delivery of the fund than the assignor would otherwise enjoy.
      “2. Where it shall appear that a beneficiary would not have the benefit or use or control of the money or other property due him or where other special circumstances make it desirable that such payment should be withheld the decree may direct that such money or property be paid into court for the benefit of the beneficiary or the person or persons who may thereafter appear entitled thereto. The money or property so paid into court shall be paid out only upon order of the court or pursuant to the order or judgment of a court of competent jurisdiction.
      “3. In any such proceeding where it is uncertain that an alien beneficiary or fiduciary not residing within the United States, the District of Columbia, the Commonwealth of Puerto Rico or a territory or possession of the United States would have the benefit or use or control of the money or property due him the burden of proving that the alien beneficiary will receive the benefit or use or control of the money or property due him shall be upon him or the person claiming from, through or under him.”

       The Second Circuit originally took the view that denial of summary judgment, where an injunction had been prayed for, was an appealable order denying an injunction under § 1292 (a)(1), Federal Glass Co. v. Loshin, 217 F. 2d 936 (1954) (L. Hand, J.; Frank, J., concurring; Clark, J., dissenting). This was contrary to the majority view that such orders were not appealable, a view best represented by Morgenstern Chemical Co. v. Sobering Corp., 181 F. 2d 160 (C. A. 3d Cir. 1950). The Second Circuit, even before this Court’s decision in Switzerland Assn., supra, had reversed its position. Chappell & Co. v. Frankel, 367 F. 2d 197 (1966) (en banc). See also 6 J. Moore, Federal Practice ¶56.21 [2], at 2791-2792 (2d ed. 1966).
      In Switzerland Assn., supra, this Court left open the question whether an order denying summary judgment might be appealable as an order denying an injunction when the ground for the denial was other than the existence of a triable issue of fact.

       The 1948 revision of the Judicial Code did make one substantive change in the Three-Judge Court Act; it eliminated the requirement, imposed by the 1925 amendment, that a three-judge court should be required to hear an application for a permanent injunction only where an application for a preliminary injunction had originally been made. Reviser’s Note, 28 U. S. C. §2281.

       The appellants’ motion for summary judgment was as follows:
      “Plaintiffs move the court as follows:
      “1. That it enter, pursuant to Rule 56 of the Federal Rules of Civil Procedure, a summary judgment in plaintiffs’ favor for the relief demanded in the complaint on the ground that there is no genuine issue as to any material fact and that plaintiff is entitled to a judgment as a matter of law; and, especially, in the light of Zschernig v. Miller, 36 L. W. 4120 (1/16/68), decided by the Supreme Court of the United States.
      “The Affidavit of John R. Vintilla is attached hereto in support of this motion."

       The “relief demanded in the complaint” included:
      “That [the District Court] issue a permanent injunction forever restraining and enjoining the defendants and each of them, their agents and employees, from denying plaintiff's, and others similarly situated the right to their distributive shares from decedents’ estates, and to other funds to which they may be entitled; that the defendants, and each of them, their agents, and employees, be ordered and directed to take such action as shall be necessary to deliver the distributive shares and other funds which are due and owing to and being withheld from these plaintiffs and others similarly situated.
      “That pending the final hearing and determination of this complaint upon its merits, the Court issue a preliminary injunction, restraining the defendants and each of them, their agents, and employees, from denying the plaintiffs, and others similarly situated, the right to their distributive shares and other funds to which they may be entitled.” (Emphasis added.)

        Switzerland Assn, involved an action for unfair competition under the federal trademark laws, 60 Stat. 427, 15 U. S. C. § 1051 et seq. The sole claim was that defendant’s actions in selling cheese labeled as “imported Swiss cheese” which had been imported into the United States from a country other than Switzerland were illegal under the trademark laws. The defense was that “imported Swiss cheese” had come to have an accepted meaning in the trade of Swiss cheese that had been imported from any country. The District Court found that the meaning in the trade of "imported Swiss cheese” was an issue of fact as to which there was a genuine dispute, and therefore denied the plaintiffs’ motion for summary judgment.
      The request for injunctive relief therefore had to await a jury trial on the facts.


author: Per Curiam. Mr. Justice Black, Me. Justice Douglas,

text:
    SIGLER, WARDEN v. PARKER
    No. 743.
    Decided January 26, 1970

      Clarence A. H. Meyer, Attorney General of Nebraska, and Ralph H. Qillan, Assistant Attorney General, for petitioner.

      Richard J. Bruckner for respondent.
   Per Curiam.

In 1956 respondent was found guilty in a Nebraska court of first-degree murder; he was sentenced to life imprisonment. After exhausting his post-conviction remedies under Nebraska law, respondent petitioned the United States District Court for the District of Nebraska for a writ of habeas corpus. After an evidentiary hearing, the District Court dismissed the petition. One of the issues presented to the District Court was the volun-tariness of confessions used against respondent at his trial. Relying on the findings of the state court in a 1965 post-conviction proceeding, the District Court concluded that the confessions were voluntarily given and hence admissible. The Court of Appeals for the Eighth Circuit, without reaching the other issues before it, reversed on the ground that respondent’s confessions were involuntary. 413 F. 2d 459 (1969). The court first found that the opinion of the Nebraska Supreme Court affirming respondent’s conviction indicated that the trial judge had not found the confessions voluntary before admitting them into evidence. The court then found that this violation of the procedural rule of Jackson v. Denno, 378 U. S. 368 (1964), had tainted all subsequent findings of voluntariness in the Nebraska courts and in the District Court. Since it seemed “unlikely that either party has any additional substantial evidence on the voluntariness issue,” 413 F. 2d, at 463, the Court of Appeals chose to evaluate the confessions itself rather than to remand the case to allow the State to make an untainted determination on the voluntariness question. After examining the record of the trial and the post-conviction proceedings, the court held that the confessions could on no view of the evidence be deemed voluntary. On the basis of this determination, the court directed that the writ of habeas corpus should be granted unless within a reasonable time respondent was given a new trial from which the confessions were excluded.

We agree with the Court of Appeals that the record of proceedings in the trial court and the opinion of the Nebraska Supreme Court affirming respondent’s conviction do not justify a conclusion that the trial judge made his own determination of voluntariness as required by Jackson v. Denno, supra. See Sims v. Georgia, 385 U. S. 538 (1967). In addition, we accept the Court of Appeals’ determination that all subsequent findings of voluntariness were made at least in part in reliance on the first, procedurally defective, determination of the admissibility of the confessions. However, as indicated in our opinion in Jackson v. Denno, supra, at 391-396, the appropriate remedy when a federal court finds a Jackson v. Denno error in a prior state proceeding is to allow the State a reasonable time to make an error-free determination on the voluntariness of the confession at issue. Hence it was error for the Court of Appeals to pass judgment on the voluntariness of respondent’s confessions without first permitting a Nebraska court to make such an evaluation uninfluenced by the apparent finding of voluntariness at the 1956 trial.

The writ of certiorari is granted. The judgment of the Court of Appeals is vacated and the case is remanded to that court for further proceedings consistent with this opinion.

It is so ordered.

Mr. Justice Black,

with whom The Chief Justice joins,

dissenting.

This Court in Jackson v. Denno, 378 U. S. 368 (1964), held over my dissent that the question of the volun-tariness of a defendant’s alleged confession must be made by the trial judge in a separate proceeding prior to the submission of the confession to the jury, and that insofar as federal questions concerning coercion under the Fifth Amendment were involved the decision of the trial judge forecloses the jury from passing upon the volun-tariness question. In my dissent I said:

“Whatever might be a judge’s view of the volun-tariness of a confession, the jury in passing on a defendant’s guilt or innocence is, in my judgment, entitled to hear and determine voluntariness of a confession along with other factual issues on which its verdict must rest.” Id., at 401.

I adhere to that dissent and hope that at some future time this Court will restore to defendants their right to have the voluntariness of alleged confessions determined by the jury as the Sixth Amendment requires.

I would not object if the Court were remanding the case for a new and complete retrial in which a Nebraska jury of the defendant’s peers could determine after hearing the evidence whether the alleged confessions had been voluntarily given. Clearly, when a jury passes upon the truthfulness of a confession, as it must do when a confession is offered, the jury must also be allowed to determine whether the confession was caused by police coercion or whether it was freely given. Jackson v. Denno thus took away a defendant’s traditional right to have the jury decide for itself whether a confession was tainted and probably untrue because it was coerced. The vital importance of this issue to defendants tried in this country is a sufficient reason for me to continue my protest against the Court’s holding in Jackson v. Denno.

Me. Justice Douglas,

dissenting.

Respondent was convicted of murder and he was sentenced to life imprisonment on June 2, 1956, nearly 14 years ago. On appeal, his conviction was affirmed. Parker v. State, 164 Neb. 614, 83 N. W. 2d 347, and we denied certiorari, 356 U. S. 933.

In 1962 respondent filed a petition for writ of error coram nobis in the trial court which was dismissed. The dismissal was affirmed on appeal. Parker v. State, 178 Neb. 1, 131 N. W. 2d 678.

In 1963 respondent sought post-conviction relief in the Nebraska court, alleging that the confessions obtained from him and used at the trial were involuntary and in violation of the Federal Constitution. The court after an evidentiary hearing denied relief and the Supreme Court of Nebraska affirmed. State v. Parker, 180 Neb. 707, 144 N. W. 2d 525.

In 1966 respondent filed the present petition for habeas corpus in the Federal District Court, again challenging the voluntariness of the confessions. Again a full evi-dentiary hearing was held and the petition was denied. That was on June 27, 1968. On July 18, 1969, the Court of Appeals reversed, 413 F. 2d 459, saying:

“The interest of justice would not be served by remanding this case for a hearing upon the volun-tariness of the confession [s] if the factual background in the present case is such that in event the state court again found the confession [s] voluntary, a determination that such finding was not warranted would be required. In both the state and federal post conviction hearings reliance was placed upon the extensive record made on voluntariness at the trial, and no additional evidence was introduced. Thus it would seem unlikely that either party has any additional substantial evidence on the volun-tariness issue.” Id., at 463.

The issue of voluntariness vel non of the confessions is a much-plowed field. If the federal courts were coming to this question without prior state opportunity to act, I would agree that the federal courts should not act until the state tribunal first had the opportunity to try the issue. Moreover, it would be more appropriate, as Mr. Justice Black says, to remand the case so that there might be a new trial before a jury. But if this issue is to be resolved in a habeas corpus proceeding, where traditionally a jury does not sit, then we should affirm the Court of Appeals. The issue as to the voluntary character of the confessions has been hotly contested and the facts thoroughly exposed in the state proceedings. And the conclusion by the Court of Appeals that the confessions were not voluntary is a responsible one. Moreover, the observation of the Supreme Court of Nebraska that there is no evidence of “a real miscarriage of justice,” State v. Parker, 180 Neb., at 714, 144 N. W. 2d, at 529, though popular in some legal circles, is irrelevant. For under our presumably civilized constitutional procedures, a conviction on a coerced confession, even of one whom we despise, is intolerable.

      After a hearing in 1965 under the Nebraska Post Conviction Act, Neb. Rev. Stat. §§29-3001 to 29-3004 (Cum. Supp. 1967), the state trial court found that the record and exhibits indicated that the confessions were voluntary. The Court of Appeals may have deemed this conclusion unsatisfactory because the state court’s finding on the voluntariness question was followed immediately by a reference to the original determination, at trial and on appeal from the conviction, as to the admissibility of the confessions. The Court of Appeals’ view is supported by the fact that the Nebraska Supreme Court relied heavily on the apparent finding of voluntariness at the original trial and on appeal in affirming the trial court’s denial of collateral relief. State v. Parker, 180 Neb. 707, 144 N. W. 2d 525 (1966).

      The rule that there is no right to jury trial in habeas corpus cases has been codified in the federal statute, 28 U. S. C. §2243:
      “The court shall summarily hear and determine the facts, and dispose of the matter as law and justice require.”
      Section 2243 does not preclude the use of an advisory jury pursuant to Fed. Rule Civ. Proc. 39 (c). See 5 J. Moore, Federal Practice 265-269 (1969); cf. W. Church, A Treatise on the Writ of Habeas Corpus 256 (2d ed. 1893). Yet the use of an advisory jury is discretionary only. See Barry v. White, 62 App. D. C. 69, 70, 64 F. 2d 707, 708 (1933). “[T]he court should not utilize an advisory jury, if to do so would delay the hearing of the habeas corpus proceeding; and as a matter of sound practice the advisory jury should be used, if at all, only in the rare and exceptional case.” Moore, supra, at 268-269.


author: Per Curiam. Mr. Justice Black,

text:
    SHAPIRO, WELFARE COMMISSIONER OF CONNECTICUT v. DOE
    No. 805.
    Decided January 26, 1970

      Robert K. Killian, Attorney General of Connecticut, and Francis J. MacGregor, Assistant Attorney General, for appellant.

      Lee A. Albert for appellee.
   Per Curiam.

The motion of the appellee for leave to proceed in forma pauperis is granted. The motion to dismiss is also granted and the appeal is dismissed for failure to docket the case within the time prescribed by Rule 13.

Mr. Justice Black,

with whom Mr. Justice Douglas joins,

dissenting.

In this case a three-judge United States District Court invalidated a Connecticut state welfare regulation requiring the mother of an illegitimate child to reveal the name of the child’s father as a precondition to receiving welfare assistance on the ground that the regulation imposed an additional condition of welfare eligibility not required or authorized by the Social Security Act, 49 Stat. 620, as amended, 42 U. S. C. §§ 601-610 (1964 ed. and Supp. IV). The case comes to this Court on direct appeal taken by Connecticut welfare officials pursuant to the authorization in 28 U. S. C. § 1263. There can be no doubt about the fact that this appeal presents a federal question which should be decided here and that this Court has jurisdiction over the appeal since appellee’s statutory claim was initially joined with a constitutional attack upon the Connecticut regulation. Florida Lime Growers v. Jacobsen, 362 U. S. 73 (1960). Yet, the Court today dismisses this appeal on the ground that it was not timely docketed in accordance with Rule 13 (1) of the Rules of the United States Supreme Court. Rule 13 (1) provides that in cases appealed pursuant to 28 U. S. C. § 1253 the time limit for docketing the appeal shall be 60 days from the filing of the notice of the appeal. In this case the notice of appeal was properly filed pursuant to 28 U. S. C. § 2101 (b) on September 2, 1969. The 60-day time limit thus expired on November 1,1969, but appellants did not docket the appeal until Novem-. ber 3, 1969, two days later, one of which was a Sunday. It is because of this minor and essentially technical infraction of its own Rules that the Court today dismisses this important appeal. I cannot agree with such a result. Time defects such as this one involving only a failure to comply with the Rules of this Court do not rise to jurisdictional proportions and can be waived by the Court when the interests of justice so require. Taglianetti v. United States, 394 U. S. 316, n. 1 (1969). Given the importance of the issue in this case and the harmless, undoubtedly inadvertent nature of appellant’s error, this case seems to me an altogether appropriate one for the waiver of Rule 13 (1). The Court hardly puts its best foot forward when it dismisses so substantial an appeal on so technical a ground. I would waive the time defect, note probable jurisdiction, and consider the issue presented in this appeal on the merits.


author: Per Curiam.

text:
    FLORIDA v. ALABAMA et al.
    No. 37,
    Orig.
    Decided January 28, 1970

      Claude R. Kirk, Jr., Governor of Florida, and Gerald Mager on the motion.
   Per Curiam.

On January 23, 1970, the plaintiff filed a motion for leave to file a complaint invoking the original jurisdiction of this Court naming 49 other States and Robert Finch, as Secretary of the Department of Health, Education, and Welfare, as parties defendant.

The alleged emergent nature of the claims for relief led the Court to give expedited consideration to the motion and proffered complaint and, having examined the complaint, we conclude it fails to state a claim against any of the defendants warranting the exercise of the original jurisdiction of this Court.

Accordingly, the motion to accelerate the time for responses to the proffered complaint and the motion for leave to file the proffered complaint are denied.