author: Per Curiam. Mr. Justice Douglas,

text:
    NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE et al. v. OVERSTREET.
    No. 505.
    Argued March 29, 1966.
    Decided April 27, 1966.

      Robert L. Carter argued the cause for petitioners. With him on the brief were Anne Gross Feldman, Maria L. Marcus and Barbara A. Morris.

      Hugh P. Futrell, Jr., submitted the cause on a brief for respondent.
   Per Curiam.

The writ of certiorari is dismissed as improvidently granted.

Mr. Justice Douglas,

with whom The Chief Justice, Mr. Justice Brennan and Mr. Justice Fortas concur,

dissenting.

In May 1962, a 14-year-old Negro boy complained to his school principal and to his mother that he had been mistreated by respondent. The boy claimed that respondent, the owner of a market at which the boy was employed, had accused him of stealing merchandise and had thereafter slapped and kicked him. The truth of this charge remains disputed. The boy’s mother, dissatisfied with the response of the local police, contacted the Savannah Branch of the National Association for the Advancement of Colored People. The Branch responded by organizing a campaign to withhold patronage from respondent. Pickets were established, and customers were asked to refrain from shopping in the market. Although the record does not contain any evidence of misconduct on the part of the Branch’s members or officers, the picketing apparently attracted substantial crowds. There were incidents involving the intimidation of customers, blocking of sidewalks, and scattered incidents of violence. The trial judge instructed the jury that it might hold the Branch responsible for the respondent’s damages if it found that the picketing was the “proximate cause” of the misconduct of others. The judge further instructed the jury that should it hold the Branch liable, it might also hold petitioner — the national NAACP — if the Branch were found to be its “agent.” The jury held both the Branch and petitioner liable. Damages totaling $85,793 were assessed: this figure includes $50,000 in punitive damages. The Georgia Supreme Court affirmed, 221 Ga. 16, 142 S. E. 2d 816, and we granted certiorari, limited to the question of whether holding petitioner, the national organization, liable “for acts performed without its knowledge and by persons beyond its control” denied it rights secured by the Fourteenth Amendment. 382 U. S. 937.

Respondent has suffered economic loss as a result of the conduct of those who blocked his sidewalk and threatened his customers. I assume that nothing in the Constitution bars recovery for his injuries from those individuals. See Giboney v. Empire Storage Co., 336 U. S. 490. The courts below found that the Branch was responsible for these injuries, and no questions as to that aspect of the case are now before us. We have only the question whether, given the liability of the Branch, petitioner, the national NAACP, may be held responsible for respondent’s loss — and for the punitive damages imposed.

The amended complaint alleged that W. W. Law, an officer of the Branch, “in using such tactics, was acting in and for the services” of petitioner “as its agent, employee, and servant, within the scope of said agency, employment and service.” That allegation was denied by petitioner and the record does not contain one iota of proof that petitioner controlled, authorized, or even knew of these activities.

Petitioner is a nonprofit corporation organized in New York for the purpose of promoting equality of treatment for Negro citizens. The Branch is concededly an affiliate of that national organization. A portion of the dues it collects is forwarded to the national, and members of the local branch are automatically members of the national organization. Members of the local association can and do attend the annual national convention at which they participate in workshops and discussions relating to NAACP activities. The Branch makes an annual report of its activities to the national NAACP.

That, for all the record shows, is the full extent of the relations between petitioner and the Branch. There is no evidence of any power on the part of petitioner to control the conduct of the Branch. There is no evidence of any effort in past years by petitioner to exercise such control. The Branch officers were not, for all the record shows, national officers. The petitioner did not order the demonstrations nor did it authorize them. The record affirmatively shows that petitioner had no knowledge of the demonstrations against respondent and did not learn of them until it was sent the restraining order that was served upon the Branch president. And nothing in the record suggests “ratification” — even by inaction over a sustained period — of the local’s activities against respondent or of similar activities.

The standards by which the trial court allowed this “agency” to be measured were, to say the least, unclear. The trial judge instructed the jury that the petitioner was a New York corporation which could “only be represented in Georgia by agents, and the agents must conduct themselves in a manner that is compatible with the purposes of that organization.” He then instructed as follows:

“Now did the National Association for the Advancement of Colored People have an agent in Savannah? Who was that agent? Was it W. W. Law [the Branch’s president] ? . . . Is the National Association responsible for what this affiliate does? . . . Are they so connected that one is responsible for the act of the other by reason of the agency; by reason of their concerted activities as expressed in this conspiracy? As the Court sees it, you can’t get agency and conspiracy separated in this case. A corporation may be a member of a conspiracy if its officers and agents take part in it and it furthers the conspiracy. You look to the evidence and see if it preponderates as to these organizations. Was there an agency that bound the National Association . . . ? Did they participate through their agents and members and people who had a right to bind them in this conspiracy?” (Emphasis added.)

These instructions, to which the defendants excepted and assigned as error on appeal, gave the jury little guidance as to the circumstances in which it would be appropriate to hold liable the national NAACP. The remarks of the trial judge in considering petitioner’s motion for a nonsuit are, in this respect, revealing: “[S]o far as the evidence is concerned, there [is] no evidence to the effect that any member [of the Branch] was the agent of the national corporation. In other toords, they were just affiliated.” (Emphasis added.)

To equate the liability of the national organization with that of the Branch in the absence of any proof that the national authorized or ratified the misconduct in question could ultimately destroy it. The rights of political association are fragile enough without adding the additional threat of destruction by lawsuit. We have not been slow to recognize that the protection of the First Amendment bars subtle as well as obvious devices by which political association might be stifled. See Bates v. Little Rock, 361 U. S. 516, 523. Thus we have held that forced disclosure of one’s political associations is, at least in the absence of a compelling state interest, inconsistent with the First Amendment’s guaranty of associational privacy. E. g., DeGregory v. New Hampshire, 383 U. S. 825; Gibson v. Florida Legislative Comm., 372 U. S. 539, 543-546; Shelton v. Tucker, 364 U. S. 479; N. A. A. C. P. v. Alabama, 357 U. S. 449, 462-463. Recognizing that guilt by association is a philosophy alien to the traditions of a free society (see Schware v. Board of Bar Examiners, 353 U. S. 232, 245-246) and the First Amendment itself, we have held that civil or criminal disabilities may not be imposed on one who joins an organization which has among its purposes the violent overthrow of the Government, unless the individual joins knowing of the organization’s illegal purposes (Wieman v. Updegraff, 344 U. S. 183) and with the specific intention to further those purposes. See Elfbrandt v. Russell, ante, p. 11; Aptheker v. Secretary of State, 378 U. S. 500.

The present case contains no less a threat to political association. That the threat comes in the form of civil suits for damages rather than that of direct governmental restraints is of no consequence as we noted in New York Times v. Sullivan, 376 U. S. 254, 265. Today a judgment of more than $80,000 is fastened on the national NAACP. Juries hostile to the aims of an organization in the educational or political field, unless carefully confined by meticulous instructions and judicial supervision, can deliver crushing verdicts that may stifle organized dissent from the views and policies accepted by the majority.

This case thus carries us into territory in which principles of state law must be accommodated with overriding federal precepts. The law of agency which a State chooses to follow functions, for the most part, free of constitutional restraint; in our federal system, each State may regulate the relations between principal, agent, and third parties according to its own standards of fairness and sound policy. But when a state policy thwarts interests which the Federal Constitution affords special protection, that state policy must yield. For example, though state law customarily determines whether a particular contract is enforceable, notwithstanding the applicable commercial law a state court may not enforce covenants restricting sale of real property to non-whites. Shelley v. Kraemer, 334 U. S. 1. While the States may preserve order on the public streets and punish conduct constituting a “breach of the peace” as defined by local law, peaceful expression may not, regardless of the label put upon it, be punished. Cantwell v. Connecticut, 310 U. S. 296. And see Edwards v. South Carolina, 372 U. S. 229. Questions of legislative apportionment, though primarily matters of state law, must be resolved in compliance with the Federal Equal Protection Clause. Reynolds v. Sims, 377 U. S. 533. The same is true of voter registration, Harper v. Virginia State Board of Elections, 383 U. S. 663. State regulation of the practice of law— more specifically, the rules regarding solicitation of legal business — must yield in favor of the First Amendment right to join together in a common effort to assert legal rights. N. A. A. C. P. v. Button, 371 U. S. 415; Railroad Trainmen v. Virginia Bar, 377 U. S. 1.

In N. A. A. C. P. v. Button, supra, we rejected the State’s claim that “solicitation” of legal business is outside the area of freedoms protected by the First Amendment. We said that “a State cannot foreclose the exercise of constitutional rights by mere labels.” 371 U. S., at 429. So it should be in this case. Terms such as “agency” and “affiliation” have no talismanic significance. In the context of this case, they obscure rather than promote sound analysis. The question we must answer is whether a national political association can be held responsible for wrongs committed by those beyond its control in a constitutional system where freedom of expression and association is treasured.

The threats which political organizations of this kind today face were once a great burden on labor unions. Congress acted to relieve that burden by enacting § 6 of the Norris-LaGuardia Act:

“No officer or member of any association or organization, and no association or organization participating or interested in a labor dispute, shall be held responsible or liable in any court of the United States for the unlawful acts of individual officers, members, or agents, except upon clear proof of actual participation in, or actual authorization of, such acts, or of ratification of such acts after actual knowledge thereof.” 47 Stat. 71.

See Brotherhood of Carpenters v. United States, 330 U. S. 395. We recently held in United Mine Workers v. Gibbs, 383 U. S. 715, that an international union could not be held liable for the tortious conduct of a local in the absence of “clear proof” of “participation, authorization, or ratification” by the international union.

We have of course no like statute here. But the First Amendment, which commands vigilance lest the rights it assures be denied the “breathing space” (N. A. A. C. P. v. Button, supra, 433) necessary for survival, provides guidance. In my view, it forbids the imposition of liability on a national political association on account of the misconduct of a local branch without proof that the national organization specifically authorized or ratified the conduct for which liability is sought to be imposed. A general finding of “agency” or “affiliation” is not enough. In the present case, the record discloses at most a loose relationship between petitioner and this independently controlled Branch. This record discloses no specific authorization or ratification by petitioner of the acts which the Georgia courts found tortious. Nor is there any evidence of any participation by petitioner in such conduct. The trial judge himself stated that there was no “agency” shown, but only an “affiliation” between petitioner and the local Branch. So weak a link cannot, for the reasons I have stated, warrant holding the national NAACP responsible for the damages sustained.

I would reverse this judgment.

       “I charge you that in this case you can consider the effect of the picket[ing]. Did . . . the fact that the pickets were there incite activity upon people who were not at all connected with the organization!;?]; and if that was incited by the pickets, by their mere presence, you could consider the pickets and the placing of the pickets as the proximate cause of what resulted.” (Emphasis added.)

       See N. A. A. C. P. v. Alabama, 357 U. S. 449, 451-452. Its certificate of incorporation states that its principal objectives are “voluntarily to promote equality of rights and eradicate caste or race prejudice among the citizens of the United States; to advance the interest of colored citizens; to secure for them impartial suffrage; and to increase their opportunities for securing justice in the courts, education for their children, employment according to their ability, and complete equality before the law.” Ibid.

       The burdens of civil suits for damages were felt by the trade union movement in Great Britain as well as in this country. See Webb, Sidney and Beatrice, The History of Trade Unionism 597-604 (1965 ed.); Cole, The British Working-Class Movement 292-296 (1948).

       The factors on which the Georgia Supreme Court relied to sustain the finding of "agency” fall far short of showing any specific authorization by petitioner to the Savannah Branch to engage in the conduct condemned below. It emphasized the following points: (1) both the local and the national organizations use the name “N. A. A. C. P.”; (2) the petition was served on the Branch president as petitioner’s agent, and petitioner made no objection; (3) the Savannah Branch and petitioner shared certain common objectives; (4) members of the Branch were automatically members of the petitioner and a portion of their dues was forwarded to New York; and (5) at national conventions, members of the local were counseled in methods of furthering their efforts in the local district through discussions and workshops. In addition, the court suggested that if there was in fact no agency relation, petitioner “had the option to repudiate or ratify the act, but [it was] required to do one or the other. And where, as here, [it] never repudiated the act, [it is] deemed to have affirmed it.”
      The record is clear that the first notice petitioner had of the Savannah demonstrations was when the restraining order was forwarded to it in New York. By this time, the temporary restraining order was in effect. There was, therefore, no opportunity for petitioner to exercise a moderating influence on the local branch. Compare United Mine Workers v. Gibbs, supra, where the national union had knowledge of the local’s violent conduct and never expressly disavowed it; we held, nonetheless, that there had been no ratification although we noted that had it made some public statements condemning the violence “our result would undoubtedly be firmer.” Id., at 742. Moreover, petitioner specifically denied respondent’s allegations of agency in its answer filed shortly after the suit was begun.
      The more demanding requirements of proof which I believe must be met would be satisfied, for example, in a case where the Branch incurred some liability arising out of its collection of dues. I would expect that since the dues paid to the Savannah Branch are, in part, collected on behalf of the national organization, it would be a simple matter to show specific authority to engage in that activity. Perhaps it might be possible to show specific authorization to engage in the conduct involved in this case; the record does not, for example, show what manner of advice and counsel is given the Branch at national conventions. Whether respondent could meet his burden of proof cannot, of course, be determined from the meager record before us.


source: Caselaw Access Project

author: Mr. Justice Fortas Mr. Justice Harlan,

license: Public Domain

text:
    UNITED STATES v. GENERAL MOTORS CORP. et al.
    No. 46.
    Argued December 9, 1965.
    Decided April 28, 1966.

      Daniel M. Friedman argued the cause for the United States. On the brief were Solicitor General Marshall, Assistant Attorney General Turner, Lionel Kestenbaum, Richard A. Posner and Robert C. Weinbaum.

      Homer I. Mitchell argued the cause for appellee General Motors Corp. With him on the brief were Warren

      M. Christopher, Marcus Mattson, Aloysius F. Power, Robert A. Nitschke, Nicholas J. Rosiello, Henry C. Thu-mann, Donald M. Wessling and Robert W. Culver. Victor R. Hansen argued the cause for appellees Losor Chevrolet Dealers Association et al. With him on the brief were Glenn S. Roberts and Henry F. Walker.

      Thomas A. Rothwell and William C. Hillman filed a brief for O. M. Scott & Sons Co. et al., as amici curiae.

   Mr. Justice Fortas

delivered the opinion of the Court.

This is a civil action brought by the United States to enjoin the appellees from participating in an alleged conspiracy to restrain trade in violation of § 1 of the Sherman Act. The United States District Court for the Southern District of California concluded that the proof failed to establish the alleged violation, and entered judgment for the defendants. The case is here on direct appeal under § 2 of the Expediting Act, 32 Stat. 823, 15 U. S. C. § 29 (1964 ed.). We reverse.

I.

The appellees are the General Motors Corporation, which manufactures, among other things, the Chevrolet line of cars and trucks, and three associations of Chevrolet dealers in and around Los Angeles, California. All of the Chevrolet dealers in the area belong to one or more of the appellee associations.

Chevrolets are ordinarily distributed by dealers operating under a franchise from General Motors. The dealers purchase the cars from the manufacturer, and then retail them to the public. The relationship between manufacturer and dealer is incorporated in a comprehensive uniform Dealer Selling Agreement. This agreement does not restrict or define those to whom the dealer may sell. Nor are there limitations as to the territory within which the dealer may sell. Compare White Motor Co. v. United States, 372 U. S. 253. The franchise agreement does, however, contain a clause (hereinafter referred to as the “location clause”) which prohibits a dealer from moving to or establishing “a new or different location, branch sales office, branch service station, or place of business including any used car lot or location without the prior written approval of Chevrolet.”

Beginning in the late 1950’s, “discount houses” engaged in retailing consumer goods in the Los Angeles area and “referral services” began offering to sell new cars to the public at allegedly bargain prices. Their sources of supply were the franchised dealers. By 1960 a number of individual Chevrolet dealers, without authorization from General Motors, had developed working relationships with these establishments. A customer would enter one of these establishments and examine the literature and price lists for automobiles produced by several manufacturers. In some instances, floor models were available for inspection. Some of the establishments negotiated with the customer for a trade-in of his old car, and provided financing for his new-car purchase.

The relationship with the franchised dealer took var-c ious forms. One arrangement was for the discounter to refer the customer to the dealer. The car would then be offered to him by the dealer at a price previously agreed upon between the dealer and the discounter. In 1960, a typical referral agreement concerning Chevrolets provided that the price to the customer was not to exceed $250 over the dealer’s invoiced cost. For its part in supplying the customer, the discounter received $50 per sale.

Another common arrangement was for the discounter itself to negotiate the sale, the dealer’s role being to furnish the car and to transfer title to the customer at the direction of the discounter. One dealer furnished Chev-rolets under such an arrangement, charging the discounter $85 over its invoiced cost, with the discounter getting the best price it could from its customer.

These were the principal forms of trading involved in this case, although within each there were variations, and there were schemes which fit neither pattern. By 1960 these methods for retailing new cars had reached considerable dimensions. Of the 100,000 new Chevro-lets sold in the Los Angeles area in that year, some 2,000 represented discount house or referral sales. One Chevrolet dealer attributed as much as 25% of its annual sales to participation in these arrangements, while another accounted for between 400 and 525 referral sales in a single year.

Approximately a dozen of the 85 Chevrolet dealers in the Los Angeles area were furnishing cars to discounters in 1960. As the volume of these sales grew, the nonparticipating Chevrolet dealers located near one or more of the discount outlets began to feel the pinch. Dealers lost sales because potential customers received, or thought they would receive, a more attractive deal from a discounter who obtained its Chevrolets from a distant dealer. The discounters vigorously advertised Chevrolets for sale, with alluring statements as to price savings. The discounters also advertised that all Chevrolet dealers were obligated to honor the new-car warranty and to provide the free services contemplated therein; and General Motors does indeed require Chevrolet dealers to service Chevrolet cars, wherever purchased, pursuant to the new-car warranty and service agreement. Accordingly, nonparticipating dealers were increasingly called upon to service, without compensation, Chevrolets purchased through discounters. Perhaps what grated most was the demand that they “precondition” cars so purchased — make the hopefully minor adjustments and do the body and paint work necessary to render a factory-fresh car both customer- and road-worthy.

On June 28, 1960, at a regular meeting of the appellee Losor Chevrolet Dealers Association, member dealers discussed the problem and resolved to bring it to the attention of the Chevrolet Division’s Los Angeles zone manager, Robert O’Connor. Shortly thereafter, a delegation from the association called upon O’Connor, presented evidence that some dealers were doing business with the discounters, and asked for his assistance. O’Connor promised he would speak to the offending dealers. When no help was forthcoming, Owen Keown, a director of Losor, took matters into his own hands. First, he spoke to Warren Biggs and Wilbur Newman, Chevrolet dealers who were then doing a substantial business with discounters. According to Keown’s testimony, Newman told him that he would continue the practice “until . . . told not to by” Chevrolet, and that “when the Chevrolet Motor Division told him not to do it, he knew that they wouldn’t let some other dealer carry on with it.”

Keown then reported the foregoing events at the association’s annual meeting in Honolulu on November 10, 1960. The member dealers present agreed immediately to flood General Motors and the Chevrolet Division with letters and telegrams asking for help. Salesmen, too, were to write.

Hundreds of letters and wires descended upon Detroit — with telling effect. Within a week Chevrolet’s O’Connor was directed to furnish his superiors in Detroit with “a detailed report of the discount house operations ... as well as what action we in the Zone are taking to curb such sales.”

By mid-December General Motors had formulated its response. On December 15, James M. Roche, then an executive vice president of General Motors, wrote to some of the complaining dealers. He noted that the practices to which they were objecting “in some instances represent the establishment of a second and unauthorized sales outlet or location contrary to the provisions of the General Motors Dealers Selling Agreements.” (Emphasis supplied.) Recipients of the letter were advised that General Motors personnel proposed to discuss that matter with each of the dealers. O’Connor in Los Angeles was apprised of the letter’s content and instructed to carry on the personal discussions referred to therein. With respect to the offending dealers, he was to work with Roy Cash, regional manager for the Chevrolet Division. Cash had been briefed on the subject in Detroit on December 14.

General Motors personnel proceeded to telephone all area dealers, both to identify those associated with the discounters and to advise nonparticipants that General Motors had entered the lists. The principal offenders were treated to unprecedented individual confrontations with Cash, the regional manager. These brief meetings were wholly successful in obtaining from each dealer his agreement to abandon the practices in question. Some capitulated during the course of the four- or five-minute meeting, or immediately thereafter. One dealer, who met not with Cash but with the city sales manager for Chevrolet, put off decision for a week “to make sure that the other dealers, or most of them, had stopped their business dealings with discount houses.”

There is evidence that unanimity was not obtained without reference to the ultimate power of General Motors. The testimony of dealer Wilbur Newman was that regional manager Cash related a story, the relevance of which was not lost upon him, that in handling children, “I can tell them to stop something. If they don’t do it ... I can knock their teeth down their throats.” By mid-January General Motors had elicited from each dealer a promise not to do business with the discounters. But such agreements would require policing— a fact which had been anticipated. General Motors earlier had initiated contacts with firms capable of performing such a function. This plan, unilaterally to police the agreements, was displaced, however, in favor of a joint effort between General Motors, the three ap-pellee associations, and a number of individual dealers.

On December 15, 1960, representatives of the three appellee associations had met and appointed a joint committee to study the situation and to keep in touch with Chevrolet’s O’Connor. Early in 1961, the three associations agreed jointly to finance the “shopping” of the discounters to assure that no Chevrolet dealer continued to supply them with cars. Each of the associations contributed $5,000, and a professional investigator was hired. He was instructed to try to purchase new Chevrolets from the proscribed outlets, to tape-record the transactions, if any, and to gather all the necessary documentary evidence — which the associations would then lay “at the doorstep of Chevrolet.” These joint associational activities were both preceded and supplemented by similar “shopping” activities by individual dealers and by ap-pellee Losor Chevrolet Dealers Association.

General Motors collaborated with these policing activities. There is evidence that zone manager O’Connor and a subordinate, Jere Faust, actively solicited the help of individual dealers in uncovering violations. Armed with information of such violations obtained from the dealers or their associations, O’Connor or members of his staff would ask the offending dealer to come in and talk. The dealer then was confronted with the car purchased by the “shopper,” the documents of sale, and in most cases a tape recording of the transaction. In every instance, the embarrassed dealer repurchased the car, sometimes at a substantial loss, and promised to stop such sales. At the direction of O’Connor or a subordinate, the checks with which the cars were repurchased were made payable to an attorney acting jointly for the three defendant associations.

O’Connor testified that on no occasion did he “force” a dealer to repurchase; he merely made the opportunity available. But one dealer testified that when an assistant zone manager for the Chevrolet Division asked him to come in and talk about discount sales, “he specified a sum of money which I was to bring with me when I came down and saw him. ... I kept the appointment and brought a cashier’s check. I knew when I came down to Los Angeles that I was going to repurchase an automobile . . . .” Another dealer testified that upon being confronted with evidence that one of his cars had been purchased through a referral service, he not only bought it back (without questioning the correctness of the price exacted) but also fired the employee responsible for the transaction — although the employee had been commended by the Chevrolet Division a few weeks earlier as the “number one fleet salesman” in the 11-state Pacific region.

By the spring of 1961, the campaign to eliminate the discounters from commerce in new Chevrolet cars was a success. Sales through the discount outlets seem to have come to a halt. Not until a federal grand jury commenced an inquiry into the matters which we have sketched does it appear that any Chevrolet dealer resumed its business association with the discounters.

II.

On these basic facts, the Government first proceeded criminally. A federal grand jury in the Southern District of California‘returned an indictment. After trial, the defendants were found not guilty. The present civil action, filed shortly after return of the indictment, was then brought to trial.

Both the Government and the appellees urge the importance, for purposes of decision, of the “location clause” in the Dealer Selling Agreement which prohibits a franchised dealer from moving to or establishing “a new or different location, branch sales office, branch service station, or place of business . . . without the prior written approval of Chevrolet.” The appellees contend that this contractual provision is lawful, and that it justifies their actions. They argue that General Motors acted lawfully to prevent its dealers from violating the “location clause,” that the described arrangements with discounters constitute the establishment of additional sales outlets in violation of the clause, and that the individual dealers — and their associations — have an interest in uniform compliance with the franchise agreement, which interest they lawfully sought to vindicate.

The Government invites us to join in the assumption, only for purposes of this case, that the “location clause” encompasses sales by dealers through the medium of discounters. But it urges us to hold that, so construed, the provision is unlawful as an unreasonable restraint of trade in violation of the Sherman Act.

We need not reach these questions concerning the meaning, effect, or validity of the “location clause” or of any other provision in the Dealer Selling Agreement, and we do not. We do not decide whether the “location clause” may be construed to prohibit a dealer, party to it, from selling through discounters, or whether General Motors could by unilateral action enforce the clause, so construed. We have here a classic conspiracy in restraint of trade: joint, collaborative action by dealers, the appellee associations, and General Motors to eliminate a class of competitors by terminating business dealings between them and a minority of Chevrolet dealers and to deprive franchised dealers of their freedom to deal through discounters if they so choose. Against this fact of unlawful combination, the “location clause” is of no avail. Whatever General Motors might or might not lawfully have done to enforce individual Dealer Selling Agreements by action within the borders of those agreements and the relationship which each defines, is beside the point. And, because the action taken constitutes a combination or conspiracy, it is not necessary to consider what might be the legitimate interest of a dealer in securing compliance by others with the “location clause,” or the lawfulness of action a dealer might individually take to vindicate this interest.

The District Court decided otherwise. It concluded that the described events did not add up to a combination or conspiracy violative of the antitrust laws. But its conclusion cannot be squared with its own specific findings of fact. These findings include the essentials of a conspiracy within § 1 of the Sherman Act: That in the summer of 1960 the Losor Chevrolet Dealers Association, “through some of its dealer-members,” complained to General Motors personnel about sales through discounters (Finding 34); that at a Losor meeting in November 1960 the dealers there present agreed to embark on a letter-writing campaign directed at enlisting the aid of General Motors (Finding 35); that in December and January General Motors personnel discussed the matter with every Chevrolet dealer in the Los Angeles area and elicited from each a promise not to do business with the discounters (Finding 39); that representatives of the three associations of Chevrolet dealers met on December 15, 1960, and created a joint investigating committee (Finding 40); that the three associations then undertook jointly to police the agreements obtained from each of the dealers by General Motors; that the associations supplied information to General Motors for use by it in bringing wayward dealers into line, and that Chevrolet’s O’Connor asked the associations to do so (Findings 41 and 42); that as a result of this collaborative effort, a number of Chevrolet dealers were induced to repurchase cars they had sold through discounters and to promise to abjure such sales in future (Finding 42).

These findings by the trial judge compel the conclusion that a conspiracy to restrain trade was proved. The error of the trial court lies in its failure to apply the correct and established standard for ascertaining the existence of a combination or conspiracy under § 1 of the Sherman Act. See United States v. Parke, Davis & Co., 362 U. S. 29, 44-45. The trial court attempted to justify its conclusion on the following reasoning: That each defendant and alleged co-conspirator acted to promote its own self-interest; that General Motors, as well as the defendant associations and their members, has a lawful interest in securing compliance with the “location clause” and in thus protecting the franchise system of distributing automobiles — business arrangements which the court deemed lawful and proper; and that in seeking to vindicate these interests the defendants and their alleged co-conspirators entered into no “agreements” among themselves, although they may have engaged in “parallel action.”

These factors do not justify the result reached. It is of no consequence, for purposes of determining whether there has been a combination or conspiracy under § 1 of the Sherman Act, that each party acted in its own lawful interest. Nor is it of consequence for this purpose whether the “location clause” and franchise system are lawful or economically desirable. And although we regard as clearly erroneous and irreconcilable with its other findings the trial court’s conclusory “finding” that there had been no “agreement” among the defendants and their alleged co-conspirators, it has long been settled that explicit agreement is not a necessary part of a Sherman Act conspiracy — certainly not where, as here, joint and collaborative action was pervasive in the initiation, execution, and fulfillment of the plan. United States v. Parke, Davis & Co., supra, at 43; United States v. Bausch & Lomb Optical Co., 321 U. S. 707, 722-723; Federal Trade Comm’n v. Beech-Nut Packing Co., 257 U. S. 441, 455.

Neither individual dealers nor the associations acted independently or separately. The dealers collaborated, through the associations and otherwise, among themselves and with General Motors, both to enlist the aid of General Motors and to enforce dealers’ promises to forsake the discounters. The associations explicitly entered into a joint venture to assist General Motors in policing the dealers’ promises, and their joint proffer of aid was accepted and utilized by General Motors.

Nor did General Motors confine its activities to the contractual boundaries of its relationships with individual dealers. As the trial court found (Finding 39), General Motors at no time announced that it would terminate the franchise of any dealer which furnished cars to the discounters. The evidence indicates that it had no intention of acting in this unilateral fashion. On the contrary, overriding corporate policy with respect to proper dealer relations dissuaded General Motors from engaging in this sort of wholly unilateral conduct, the validity of which under the antitrust laws was assumed, without being decided, in Parke Davis, supra.

As Parke Davis had done, General Motors sought to elicit from all the dealers agreements, substantially interrelated and interdependent, that none of them would do business with the discounters. These agreements were hammered out in meetings between nonconforming dealers and officials of General Motors’ Chevrolet Division, and in telephone conversations with other dealers. It was acknowledged from the beginning that substantial unanimity would be essential if the agreements were to be forthcoming. And once the agreements were secured, General Motors both solicited and employed the assistance of its alleged co-conspirators in helping to police them. What resulted was a fabric interwoven by many strands of joint action to eliminate the discounters from participation in the market, to inhibit the free choice of franchised dealers to select their own methods of trade and to provide multilateral surveillance and enforcement. This process for achieving and enforcing the desired objective can by no stretch of the imagination be described as “unilateral” or merely “parallel.” See Parke Davis, supra, at 46; Federal Trade Comm’n v. Beech-Nut Packing Co., 257 U. S. 441, 453; United States v. Bausch & Lomb Optical Co., 321 U. S. 707, 722-723; Interstate Circuit, Inc. v. United States, 306 U. S. 208, 226; United States v. Masonite Corp., 316 U. S. 265, 275; Turner, The Definition of Agreement Under the Sherman Act: Conscious Parallelism and Refusals to Deal, 75 Harv. L. Rev. 655 (1962).

There can be no doubt that the effect of the combination or conspiracy here was to restrain trade and commerce within the meaning of the Sherman Act. Elimination, by joint collaborative action, of discounters from access to the market is a per se violation of the Act.

In Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U. S. 207, the Court was confronted with the question whether “a group of powerful businessmen may act in concert to deprive a single merchant, like Klor, of the goods he needs to compete effectively.” 359 U. S., at 210. The allegation was that manufacturers and distributors of electrical appliances had conspired among themselves and with a major retailer, Broadway-Hale, “either not to sell to Klor’s [ Broadway-Hale’s next-door neighbor and competitor] or to sell to it only at discriminatory prices and highly unfavorable terms.” 359 U. S., at 209. The Court concluded that the alleged group boycott of even a single trader violated the statute without regard to the reasonableness of the conduct in the circumstances. Group boycotts of a trader, said the Court, are among those “classes of restraints which from their ‘nature or character’ were unduly restrictive . . . .” 359 U. S., at 211. This was not new doctrine, for it had long been recognized that “there are certain agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use,” and that group boycotts are of this character. Northern Pac. R. Co. v. United States, 356 U. S. 1, 5. See also Fashion Originators’ Guild of America, Inc. v. Federal Trade Comm’n, 312 U. S. 457, and Eastern States Retail Lumber Dealers’ Assn. v. United States, 234 U. S. 600, 613-614, neither of which involved price-fixing.

The principle of these cases is that where businessmen concert their actions in order to deprive others of access to merchandise which the latter wish to sell to the public, we need not inquire into the economic motivation underlying their conduct. See Barber, Refusals To Deal Under the Federal Antitrust Laws, 103 U. Pa. L. Rev. 847, 872-885 (1955). Exclusion of traders from the market by means of combination or conspiracy is so inconsistent with the free-market principles embodied in the Sherman Act that it is not to be saved by reference to the need for preserving the collaborators’ profit margins or their system for distributing automobiles, any more than by reference.to the allegedly tortious conduct against which a combination or conspiracy may be directed — as in Fashion Originators’ Guild of America, Inc. v. Federal Trade Comm’n, supra, at 468.

We note, moreover, that inherent in the success of the combination in this case was a substantial restraint upon price competition — a goal unlawful per se when sought to be effected by combination or conspiracy. E. g., United States v. Parke, Davis & Co., 362 U. S. 29, 47; United States v. Socony-Vacuum Oil Co., 310 U. S. 150, 223. And the per se rule applies even when the effect upon prices is indirect. Simpson v. Union Oil Co., 377 U. S. 13, 16-22; Socony-Vacuum Oil Co., supra.

There is in the record ample evidence that one of the purposes behind the concerted effort to eliminate sales of new Chevrolet cars by discounters was to protect franchised dealers from real or apparent price competition. The discounters advertised price savings. See n. 7, supra. Some purchasers found and others believed that discount prices were lower than those available through the franchised dealers. Ibid. Certainly, complaints about price competition were prominent in the letters and telegrams with which the individual dealers and salesmen bombarded General Motors in November I960. (Finding 38.) And although the District Court found to the contrary, there is evidenpe in the record that General Motors itself was not unconcerned about the effect of discount sales upon general price levels.

The protection of price competition from conspiratorial restraint is an object of special solicitude under the antitrust laws. We cannot respect that solicitude by closing our eyes to the effect upon price competition of the removal from the market, by combination or conspiracy, of a class of traders. Nor do we propose to construe the Sherman Act to prohibit conspiracies to fix prices at which competitors may sell, but to allow conspiracies or combinations to put competitors out of business entirely.

Accordingly, we reverse and remand to the United States District Court for the Southern District of California in order that it may fashion appropriate equitable relief. See United States v. Parke, Davis & Co., supra, at 47-48.

It is so ordered.

Mr. Justice Harlan,

concurring in the result.

Although I consider that United States v. Parke, Davis & Co., 362 U. S. 29, decided in 1960, represents basically unsound antitrust doctrine, see my dissenting opinion, 362 U. S., at 49, I see no escape from the conclusion that it controls this case. Parke Davis held that a manufacturer cannot maintain resale prices by refusing to sell to those who do not follow his suggested prices if the refusal is attended by concerted action with his customers, even though he may unilaterally so conduct himself. See United States v. Colgate & Co., 250 U. S. 300. Although Parke Davis related to alleged price-fixing, I have been unable to discern any ténable reason for differentiating it from a case involving, as here, alleged boycotting. The conclusion that Parke Davis governs the present case is therefore unavoidable, given the undisputed evidence that General Motors acted in concert with its dealers in enforcing the location clause. In my opinion, however, General Motors is not precluded from enforcing the location clause by unilateral action, and I find nothing in the Court’s opinion to the contrary.

On this basis I concur in the judgment of the Court.

       The statute reads in relevant part: “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. . . .” 26 Stat. 209, 15 U. S. C. § 1 (1964 ed.).

       Named as co-conspirators but not as defendants are “[t]he officers, directors, and members of [the three associations], certain officers and employees of such members, certain officers and employees of General Motors, other Chevrolet dealers in the Southern California area, and others to the plaintiff unknown . . . .”

       Since the evidence does not consistently distinguish between “discount houses” and “referral services,” based either on the variety of goods offered to the public or on the nature of the arrangement between the establishment and the franchised dealer which supplied it with cars, we shall hereinafter use the term “discounter” to embrace all such establishments.

       One dealer, for example, paid its referral service one-third of the gross profit on each sale, up to $75, there being no fixed price at which the sale was to take place. The same dealer earlier had paid a flat fee of $17.50 for every referral, whether or not the sale was consummated.

       At least one discount house actually purchased its cars from cooperative dealers, then resold them to its customers. In this situation, which in the trade is referred to as “bootlegging,” the customer does not receive a new-car warranty. General Motors, while disapproving of the practice, does not assert that it violates the “location clause.” In those arrangements against which General Motors and the associations did direct their efforts, title to the new car passed directly from dealer to retail customer, who thus obtained a new-car warranty and service agreement.
      There must also be distinguished the ubiquitous practice of using “bird dogs” — informal sources who steer occasional customers toward a particular dealer, in return for relatively small fees — often a bottle of liquor. This practice, is not only deemed by General Motors not to violate the “location clause,” but has the corporation’s endorsement as a desirable sales device.

       As the District Court found, 70% of the local Chevrolet dealers were located within five miles of one or more of the 23 discount house or referral outlets.

       There is evidence in the record that discount sales undercut the prices at which franchised dealers were able to, or chose to, compete. Two purchasers of Chevrolets, one on referral and the other in a discount house “sale,” testified that they had “shopped” other dealers but found the discount and referral prices lower. Dealers and their salesmen complained to General Motors about sales lost through inability to meet the discounters’ price. Moreover, the discounters advertised and actually provided auto loans at interest rates substantially lower than those offered by G. M. A. C., General Motors’ financing subsidiary.
      There is also evidence that it was not just price itself which induced customers to purchase Chevrolets through the discounters. One customer testified that he preferred the discount house because he thereby avoided the haggling over price which seems an inevitable facet of purchasing a car in the orthodox way. Others apparently assumed, without bothering to confirm by comparison shopping, that “discount” stores would offer lower prices. This assumption was fed by discount house advertising which promised “the lowest price anywhere” and “savings of hundreds of dollars.”

       Dealer Biggs put the same sentiments into a letter to both Keown and Chevrolet’s zone manager O’Connor, written on November 5, 1960. The day before, in O’Connor’s presence, Keown had challenged Biggs to justify his dealings with the discounters. Biggs wrote: “We would be most reluctant to discard an account as good as this one without rather concrete assurance that it would not immediately be picked up by another Chevrolet dealer.” Two weeks later, O’Connor forwarded Biggs' letter to General Motors officials in Detroit.

       In Keown’s words, “We were seeking the assistance of the higher echelon officials of Chevrolet and General Motors in bringing about an end to the discount house sale of Chevrolets.”

       O’Connor’s report, dated November 22, recounted that “zone management” had talked with the offending dealers “in an attempt to have them desist,” and that “[o]ur Dealer Associations have formed a committee to call on the supplying dealers and have asked them and have attempted to persuade them to discontinue this practice.” Supported by a copy of dealer Biggs’ letter, see n. 8, supra, O’Connor predicted that “many dealers will cease this type of business if they had any assurance that the account would not be picked up by some other dealer, immediately upon relinquishment.”

       Roche wrote to those dealers who had complained directly to John Gordon, then president of General Motors. On December 29, 1960, a virtually identical letter went out to all General Motors dealers throughout the Nation, under the signature of the general sales managers for the respective divisions.

       One dealer testified that he abruptly terminated arrangements long maintained with two discount houses, despite the fact that one of these connections owed him $20,000 and the other $28,000. In the preceding four weeks the latter had reduced its indebtedness by $52,000 and could reasonably have been expected to erase it completely within a few weeks. The dealer anticipated that upon cancellation of the accounts these debts would become uncollectible. His fears were justified. The accounts were terminated. The debts remained unpaid.

       According to Francis Bruder, a dealer who had been doing business with the discounters since 1957, “Cash told me that he felt certain that the other dealers would discontinue dealing with discount houses and referral services as well. I left this meeting with the impression that every dealer who had been doing business with a discount house or referral service would soon quit.”
      This was precisely the impression General Motors had intended to implant. As was explained in an inter-office memorandum to the general sales manager of General Motors’ Chevrolet Division, “[All dealers were talked to] in order that every dealer with whom the subject was discussed would know that a similar discussion was being held with all other dealers so that, if certain dealers should elect to discontinue their cooperation with a discount house, we might be able to discourage some other dealer who might be solicited from starting the practice.”

       The District Court characterized this December 15 meeting as the first between representatives of the three associations, pertaining to the problem of discount house and referral sales. However, as we have previously noted, n. 10, supra, O’Connor reported to General Motors three weeks earlier, on November 22, that the three associations had formed a committee which already had called upon nonconforming dealers. The record does not enable us to resolve this factual conflict, nor is its resolution important. On either version, the appellee associations entered into an explicit agreement to act together to eliminate the new mode of intrabrand competition.

       The Government’s complaint contains no reference to the “location clause,” and the Government concedes that its case was tried on a conspiracy theory, the defendants injecting the contractual issue by way of defense. Trial counsel for the Government did advert to the clause in the District Court, but it does not appear that he challenged its validity, as construed, in the same sense ..that the Government does here. See Trial Transcript, pp. 9, 17-18. In light of our disposition of the case, we have no occasion to consider whether the Government’s argument directed to the clause, as construed, is properly before us.

         We note that, as in United States v. Parke, Davis & Co., 362 U. S. 29, 44-45, the ultimate conclusion by the trial judge, that the defendants’ conduct did not constitute a combination or conspiracy-in violation of the Sherman Act, is not to be shielded by the “clearly erroneous” test embodied in Rule 52 (a) of the Federal Rules of Civil Procedure. That Rule in part provides: “Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity- of the trial court to judge of the credibility of the witnesses.” As in Parke Davis, supra, the question here is not one of “fact,” but consists rather of the legal standard required to be applied to the undisputed facts of the case. See United States v. Singer Mfg. Co., 374 U. S. 174, 194, n. 9; United States v. Mississippi Valley Co., 364 U. S. 520, 526, and cases there cited.
      Moreover, the trial court’s customary opportunity to evaluate the demeanor and thus the credibility of the witnesses, which is the rationale behind Rule 52 (a) (see United States v. Oregon State Med. Soc., 343 U. S. 326, 331-332), plays only a restricted role here. This was essentially a “paper case.” It did not unfold by the testimony of “live” witnesses. Of the 38 witnesses who gave testimony, only three appeared in person. The testimony of the other 35 witnesses was submitted either by affidavit, by deposition, or in the form of an agreed-upon narrative of testimony given in the earlier criminal proceeding before another judge. A vast number of documents were also introduced, and bear on the question for decision.
      In any event, we resort to the record not to contradict the trial court’s findings of fact, as distinguished from its conclusory “findings,” but to supplement the court’s factual findings and to assist us in determining whether they support the court’s ultimate legal conclusion that there was no conspiracy.

       The December letters to all dealers said only that “[i]n effect, in some instances” the arrangements in question might violate the unauthorized location clause of the Dealer Selling Agreement. No dealer was told, either by letter or in person, that its conduct violated the franchise agreement, and no dealer was warned that continuance of discount house or referral sales would result in termination of its franchise. Zone manager O’Connor did not regard his instructions from Detroit as authorizing him to go that far, and he was of the view that “the general letter [to all dealers] didn’t suggest any such thing.”

       We refer to this without considering whether General Motors could lawfully have taken such action.

       James Roche testified, “It is not [General Motors’] practice to threaten dealers with termination of their franchise.” Good dealers and dealer locations, he said, are hard to come by. In many dealerships, General Motors itself has invested substantial fun<fs.;. Therefore, said Roche, “we would not want our people to go in and wave the franchise agreement, selling agreement, and threaten the dealer with termination in the event he didn’t agree, after following — after reading a letter he was violating our agreement and should change his practice. Instead we expected that this would be handled on a sound, calm, sensible business-like approach.”
      There are also statutory inhibitions on the right of an automobile manufacturer to terminate dealer franchises. See Act of Aug. 8, 1956, c. 1038, §2, 70 Stat. 1125, 15 U. S. C. § 1222 (1964 ed.); Kessler & Stern, Competition, Contract, and Vertical Integration, 69 Yale L. J. 1, 103-114 (1959).

       Compare Klein v. American Luggage Works, Inc., 323 F. 2d 787 (C. A. 3d Cir. 1963), and Graham v. Triangle Publications, Inc., 233 F. Supp. 825 (D. C. E. D. Pa. 1964), aff’d per curiam, 344 F. 2d 775 (C. A. 3d Cir. 1965), discussed in Fulda, Individual Refusals to Deal: When Does Single-Firm Conduct Become Vertical Restraint? 30 Law & Contemp. Prob. 590, 592-597 (1965).

       The complaint in Klor’s charged a violation of § 2 of the Sherman Act, as well as of § 1. In the present case, the Government did not charge the appellees under § 2, which provides that “Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a misdemeanor ...” 15 U. S. C. §2 (1964 ed.).

       Evidence on this subject was admitted solely for the purpose^ of showing the dealers’ state of mind, rather than to prove the existence of actual price-cutting by the discounters. But the collaborators’ state of mind is of significance here.

       In an inter-office memorandum, circulated among General Motors officials immediately prior to formulation of corporate policy vis-á-vis the discounters, it was stated that “It would appear that one of the real hazards of condoning this type of operation is that discounted prices are freely quoted to a large portion of the public.” Moreover, we note that some discounters advertised that they would finance new-car purchases at an interest rate of 5%%, a rate substantially lower than that available at franchised Chevrolet dealers through G. M. A. C., a subsidiary of General Motors Corporation. See n. 7, supra. Finally, it is conceded that General Motors is intensely concerned that each of its dealers has an adequate “profit opportunity” (see Finding 17), a concern which necessarily involves consideration of the price realized by dealers.


author: Per Curiam.

text:
    WESTBROOK v. ARIZONA.
    No. 1250,
    Misc.
    Decided May 2, 1966.

      W. Edward, Morgan for petitioner.

      Darrell F. Smith, Attorney General of Arizona, and Paul G. Rosenblatt, Assistant Attorney General, for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. Although petitioner received a hearing on the issue of his competence to stand trial, there appears to have been no hearing or inquiry into the issue of his competence to waive his constitutional right to the assistance of counsel and proceed, as he did, to conduct his own defense. “The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused — whose life or liberty is at stake — is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused.” Johnson v. Zerbst, 304 U. S. 458, 465; Carnley v. Cochran, 369 U. S. 506.

From an independent examination of the record, we conclude that the question whether this “protecting duty” was fulfilled should be re-examined in light of our decision this Term in Pate v. Robinson, 383 U. S. 375. Accordingly, the judgment of the Supreme Court of Arizona is vacated and the case is remanded to that court for proceedings not inconsistent herewith.

It is so ordered.


author: Per Curiam. Mr. Justice Clark,

text:
    RIGGAN v. VIRGINIA.
    No. 887.
    Decided May 2, 1966.

      H. Clifford Allder for petitioner.

      Robert Y. Button, Attorney General of Virginia, and M. Harris Parker, Assistant Attorney General, for respondent.
   Per Curiam.

The petition for a writ of certiorari is granted. The judgment is reversed. Aguilar v. Texas, 378 U. S. 108.

Mr. Justice Clark,

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

dissenting.

Probable cause for the issuance of the warrant in this case authorizing the search of apartment 604C, 3000 Spout Run Parkway, Arlington, Virginia, was based upon the recital in the affidavit of “personal observation of the premises” by Officer Stover, the affiant, and “information from sources believed by the police department to be reliable.”

The Supreme Court of Appeals of Virginia found that Officer Stover had the apartment building at 3000 Spout Run Parkway under his personal surveillance in December 1962 and January 1963. During those months he saw the petitioner Riggan “come and go” from the building. Riggan was known to the police, having been arrested in November 1962 on a charge of assault. That arrest was made at apartment 604C by Officer Hartel, who noticed telephones cut from their wires and placed in a closet, along with other suspicious circumstances. After he reported this to the police department, the vice squad, of which Officer Stover was a member, began to investigate activities on the premises. In addition to receiving this report, Officer Stover learned from two fellow police officers and two other informants, whom he believed to be reliable, that a lottery was being conducted from apartment 604C.

In view of these facts I do not see how this case can be controlled by Aguilar v. Texas, 378 U. S. 108 (1964). There the affidavit was based purely on hearsay. It was found inadequate under the rule applied in Giordenello v. United States, 357 U. S. 480 (1958), where a majority of the Court found that the complaint “does not indicate any sources for the complainant's belief; and it does not set forth any other sufficient basis upon which a finding of probable cause could be made.” At 486. The affidavit here not only alleged “personal observation” but recited that the affiant had information from other reliable “sources,” who were subsequently identified as police officers and private informants.

I therefore dissent.

      It is interesting to note that an affidavit with allegations identical to those now in question was approved by the Virginia Supreme Court of Appeals in Tri-Pharmacy, Inc. v. United States, 203 Va. 723, 127 S. E. 2d 89 (1962). We denied certiorari in Tri-Pharmacy in January 1963, 371 U. S. 962, before Aguilar but a month after the argument in Ker v. California, 374 U. S. 23 (1963), and during the same Term that the opinion in Ker was announced. In view of the fact that Ker is the first and leading case on the implementation of Mapp v. Ohio, 367 U. S. 643 (1961), it is strange that we denied certiorari in Tri-Pharmacy at that time rather than holding the case until Ker was decided — if any problem of unreasonable search existed. It is stranger still that the Court now grants and reverses this case summarily without giving Virginia a chance to argue the legality of its affidavit, which it had every reason to think was sufficient.


text:
    BAER v. NEW YORK.
    No. 1077.
    Decided May 2, 1966.

      Isadore Greenberg for appellant.
   Per Curiam.

The appeal is dismissed for want of a substantial federal question.

Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted.


text:
    UNITED STATES v. CLAYTON, COMMISSIONER OF REVENUE OF NORTH CAROLINA.
    No. 1115.
    Decided May 2, 1966.

      Solicitor General Marshall, Acting Assistant Attorney General Roberts, I. Henry Kutz and Robert A. Bernstein for the United States.
   Per Curiam.

The appeal is dismissed.


text:
    TEXAS v. UNITED STATES.
    No. 1218.
    Decided May 2, 1966.

      Waggoner Carr, Attorney General of Texas, Hawthorne Phillips, First Assistant Attorney General, and Mary K. Wall, Assistant Attorney General, for appellant.

      Solicitor General Marshall for the United States.
   Per Curiam.

The motion to affirm is granted and the judgment is affirmed. Harper v. Virginia State Board of Elections, 383 U. S. 663.

Mr. Justice Black dissents for the reasons given in his dissenting opinion in Harper v. Virginia State Board of Elections, supra.

Mr. Justice Harlan, joined by Mr. Justice Stewart, dissents for the reasons given in his dissenting opinion in Harper v. Virginia State Board of Elections, supra.


text:
    CLAYTON, COMMISSIONER OF REVENUE OF NORTH CAROLINA v. UNITED STATES.
    No. 893.
    Decided May 2, 1966.

      Thomas Wade Bruton, Attorney General of North Carolina, Peyton B. Abbott, Deputy Attorney General, and Charles D. Barham, Jr., Assistant Attorney General, for appellant.

      Solicitor General Marshall, Acting Assistant Attorney General Roberts, I. Henry Kutz and Robert A. Bernstein for the United States.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. American Insurance Co. v. Lucas, 314 U. S. 575; Public Service Comm’n v. Brashear Lines, 306 U. S. 204.


text:
    CHILDREN OF ISRAEL et al. v. TAMARKIN et al.
    No. 1054.
    Decided May 2, 1966.

      Martin S. Goldberg for appellants.

      C. Kenneth Clark for appellees.
   Per Curiam.

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