author: Mr. Justice Clark Mr. Justice Douglas,

text:
    RUGENDORF v. UNITED STATES.
    No. 223.
    Argued February 27, 1964.
    Decided March 30, 1964.

      Julius Lucius Echeles argued the cause for petitioner. With him on the briefs were Melvin B. Lewis and Howard W. Minn.

      David C. Acheson argued the cause for the United States. With him on the brief were Solicitor General Cox, Assistant Attorney General Miller, Frank Goodman and Philip R. Monahan.

   Mr. Justice Clark

delivered the opinion of the Court.

Following a trial by jury, petitioner was convicted of violating 18 U. S. C. § 2315 by knowingly receiving, concealing and storing 81 stolen fur pieces, the fur pieces having been transported in interstate commerce and having a value exceeding $5,000. The Court of Appeals sustained the conviction despite petitioner's objections that the evidence was not sufficient to support the verdict; that the fur garments should have been excluded from evidence because they were seized on the authority of a search warrant supported by a deficient affidavit; and that the names of certain confidential informants referred to in the affidavit should have been disclosed. 316 F. 2d 589. We granted certiorari, 375 U. S. 812, and affirm the judgment.

I.

The search warrant under attack was issued by the United States Commissioner on the strength of an affidavit dated March 22, 1962, and signed by Marlin Moore, a Special Agent of the Federal Bureau of Investigation. The affidavit stated that Moore had reason to believe that approximately 80 fur stoles and jackets, taken in a burglary in Mountain Brook, Alabama, and worth about $40,000, were concealed in the basement of a single family residence at 3117 West Jarvis Avenue in Chicago.

Moore supported this allegation with statements that L. Dean Paarmann, a Special Agent of the Birmingham, Alabama, Office of the FBI, informed Moore that on February 10, 1962, 82 mink, otter, and beaver stoles and jackets (but no full-length coats), worth approximately $42,044, were stolen in Mountain Brook, Alabama, and that on March 16, 1962, a confidential informant who had furnished reliable information in the past told Moore that during the previous week he saw approximately 75 to 80 mink, otter and beaver stoles and jackets (but no full-length coats) in the basement of the home of Samuel Rugendorf at 3117 West Jarvis Avenue, Chicago. The labels had been removed and the informant was told that the furs were stolen.

Moore further supported the allegation with the following statements: FBI Special Agent McCormick advised affiant that a confidential informant whom the FBI had found to be reliable told McCormick that Frank Schweihs of Chicago, and others, committed the Alabama robbery; McCormick told the affiant that on or about March 1, 1962, James Kelleher, a Chicago police officer, said to McCormick “that he saw FRANK SCHWEIHS at RUGGENDORF [sic] BROTHERS MEAT MARKET, managed by SAMUEL RUGGEN-DORF [sic] . . . ; further, Agent McCORMICK advised this affiant that another confidential informant who has furnished reliable information to the Federal Bureau of Investigation in the past told McCORMICK that LEO RUGGENDORF [sic] was a fence for FRANK SCHWEIHS; that SAMUEL RUGGENDORF [sic] was LEO RUGGENDORF’S [sic] brother and was associated in the meat business with his brother.”

The affidavit also stated that another FBI Special Agent, J. J. Oitzinger, told the affiant that another confidential informant who had supplied the FBI with reliable information in the past advised Oitzinger that Frank Schweihs, Tony Panzica and Mike Condic were accomplished burglars who disposed of the proceeds of their burglaries through Leo Rugendorf.

Finally, the affidavit alleged that, upon checking the informant’s description of the furs seen at 3117 West Jarvis Avenue, affiant found that the only reported burglary in the United States in the previous six months involving furs of that description and value was the one occurring at Mountain Brook, Alabama.

Pursuant to the search warrant based on this affidavit, a search was made and 81 furs were found in the basement of petitioner’s residence. Fifty-nine of these furs had been stolen in Mountain Brook and the other 22, in Shreveport, Louisiana. Prior to trial, the trial court heard testimony on petitioner’s motion, under Rule 41 (e) of the Federal Rules of Criminal Procedure, to suppress the use of the seized furs as evidence. The trial court denied the motion insofar as it challenged the legal sufficiency of the affidavit, but reserved ruling on the truthfulness of the affidavit. During the trial, another hearing was held on the reserved aspect of the motion to suppress and the motion was denied. Also denied was a motion to require the Government to disclose the names of the confidential informants referred to in the affidavit.

II.

Petitioner attacks the validity of the search warrant. This Court has never passed directly on the extent to which a court may permit such examination when the search warrant is valid on its face and when the allegations of the underlying affidavit establish “probable cause”; however, assuming, for the purpose of this decision, that such attack may be made, we are of the opinion that the search warrant here is valid. Petitioner contends that probable cause did not exist because the only relevant recitations in the affidavit were the one informant’s statements that he saw the furs in petitioner’s basement and that he was told that they were stolen. However, the informant’s detailed description of the furs, including number and type, closely resembled Special Agent Paar-mann’s description of the furs stolen in Alabama. The affiant checked the burglary report records and found the Alabama burglary to be the only recent one in the United States involving furs of the description and number that the informant saw in petitioner’s basement. In addition, the affidavit alleged that Leo and Samuel Rugen-dorf were brothers and that Leo was a fence for professional burglars. Although one of the informants who gave the la'tter information added, incorrectly, that Samuel Rugendorf was associated with Leo in the meat business, there was direct information from another informant of the FBI that Leo was a fence, and nothing was shown to prove this untrue. The factual inaccuracies depended upon by petitioner to destroy probable cause — i. e., the allegations in the affidavit that petitioner was the manager of Rugendorf Brothers Meat Market and that he was associated with his brother Leo in the meat business — were of only peripheral relevancy to the showing of probable cause, and, not being within the personal knowledge of the affiant, did not go to the integrity of the affidavit.

We believe that there was substantial basis for the Commissioner to conclude that stolen furs were probably in the petitioner’s basement. No more is required. As we said in Jones v. United States, 362 U. S. 257, 271 (1960):

“We conclude .. . . that hearsay may be the basis for a warrant. We cannot say that there was so little basis for accepting the hearsay . . . that the Commissioner acted improperly. ... He might have found the affidavit insufficient and withheld his warrant. But there was substantial basis for him to conclude that narcotics were probably present in the apartment, and that is sufficient.”

Petitioner also contends that the withholding of the identities of the informants was a sufficient ground to require suppression of the evidence. But in Jones, supra, we said that “as hearsay alone does not render an affidavit insufficient, the Commissioner need not have required the informants ... to be produced ... so long as there was a substantial basis for crediting the hearsay.” At 272. Petitioner’s only challenges to the veracity of the affidavit are the two inaccurate facts mentioned above. Since the erroneous statements that petitioner was the manager of Rugendorf Brothers Meat Market and was associated with Leo in the meat business were not those of the affiant, they fail to show that the affiant was in bad faith or that he made any misrepresentations to the Commissioner in securing the warrant.

III.

Petitioner also asserts that he was entitled to the name of the informer who reported seeing the furs in his basement in order to defend himself at trial on the merits. This claim was not properly raised in the trial court nor passed upon there, and, accordingly, must be denied here. On two occasions — once prior to and the other during the trial — petitioner urged his motion to suppress the evidence as to the furs, contending that there were “factual errors” in the affidavit supporting the search warrant. It was solely in support of this motion — not on the merits— that petitioner requested all of the informants’ names. This is made clear by petitioner’s motion for new trial:

“9. The court erred in overruling the defendant’s motion for the government to reveal the names of the informers when such information was necessary to the constitutional rights of the defendant in pursuing his motion to suppress the evidence.” (Emphasis added.)

He relied entirely on suppression, which, if successful, would have ended the case. Failing in this, petitioner asserted, for the first time, in his reply brief in the Court of Appeals that the name of the single informant who saw the furs was vital both for the suppression hearing and for the defense at trial, because the informant alone knew whether he “participated with persons other than the defendant” in placing the furs in the basement. Apparently this was an attempt to bring the facts of the case within Roviaro v. United States, 353 U. S. 53 (1957), where the informant had played a direct and prominent part, as the sole participant with the accused, in the very offense for which the latter was convicted. But there was not even an intimation of such a situation at the trial here. The necessity for disclosure depends upon “the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” 353 U. S. 53, 62. Petitioner did not develop any such criteria with reference to the merits of the case. On the contrary, a careful examination of the whole record shows that he requested the informers’ names only in his attack on the affidavit supporting the search warrant. Having failed to develop the criteria of Roviaro necessitating disclosure on the merits, we cannot say on this record that the name of the informant was necessary to his defense. All petitioner’s demands for identification of the informants were made during the hearings on the motion to suppress and were related to that motion. Never did petitioner’s counsel indicate how the informants’ testimony could help establish petitioner’s innocence.

Nor do we believe that the trial court erred in refusing to 'have the Government disclose the exact date during the week preceding March 16 when the informant saw the furs in the petitioner’s basement. It is difficult to see how that date could be useful to petitioner’s defense, since the crucial date in the indictment was March 22 and there is no indication that the informant had any knowledge of any events occurring on that date. Petitioner’s theory is that if he can find out the date, he may be able to show that he and his wife were away from home at the time when the informant saw the furs, thereby creating an inference that someone else let the informant in and that petitioner did not know of the furs. However, the particular date could not have been of material help to petitioner, as both he and his wife were away from home a major portion of nearly every day during the period in question.

IV.

As to the sufficiency of the evidence, it was undisputed that 81 stolen furs were found in the basement of petitioner’s home. The furs were hanging in a closet along with a fur piece admittedly owned by Mrs. Rugendorf. Petitioner’s defense was that the furs were placed in the closet without his knowledge while he and his wife were vacationing in Florida and that neither he nor his wife looked into the closet after their return until the officers executed the search warrant on March 22. Petitioner’s brother Leo, petitioner’s sister, his son and a neighbor all had keys to his house. Both petitioner and his wife pointed to Leo as the guilty party, but neither Leo nor the other relatives who had keys were called as witnesses. The neighbor, who was called to testify, denied putting the furs in the basement or permitting any other person to use the key.

As early as 1896 this Court dealt with such situations. In Wilson v. United States, 162 U. S. 613, Chief Justice Fuller held for a unanimous Court that “ [possession of the fruits of crime, recently after its commission, justifies the inference that the possession is guilty possession, and, though only prima jade evidence of guilt, may be of controlling weight unless explained by the circumstances or accounted for in some way consistent with innocence.” At 619. Here, it was stipulated that 59 of the furs found in the petitioner’s basement were stolen from a fur store in Mountain Brook, Alabama, on February 10, 1962. They were found in a closet opening off a regularly used recreation room. In the same closet was Mrs. Rugen-dorf’s fur piece. Leo Rugendorf, petitioner’s brother, was a known receiver of stolen goods and was seen at the home while the Rugendorfs were in Florida. Petitioner testified at trial that Leo had borrowed a key before petitioner went to Florida, and that Leo had not yet returned it. In rebuttal an FBI agent testified that petitioner told him that Leo returned the key soon after the petitioner returned from Florida. In some other respects the testimony of both petitioner and his wife conflicted with the rebuttal testimony of the FBI agents. Apparently the jury simply did not believe the explanation of petitioner and his wife. It may be that the jury’s credulity was stretched too far; or, perhaps the failure of the defense to call Leo Rugendorf and the other kinsmen, to whom they had given keys to the home, appeared strange, especially so, since the neighbor was called to testify about his use of a key. In any event a prima facie case was made out by the stipulation and the presence of the furs in petitioner’s home. We cannot say that this was insufficient.

Affirmed.

Mr. Justice Douglas,

with whom

The Chief Justice, Mr. Justice Brennan and Mr. Justice Goldberg concur, dissenting.

Just prior to the presentation by the prosecution of its first witness at the trial, counsel for petitioner requested the name or names of the informers mentioned in the search warrant:

“Mr. Echeles: Roviaro v. United States [353 U. S. 53], which is cited by our Seventh Circuit as authority for this proposition, states that if the informants, if the names of the informants are necessary to a proper defense or a proper presentation of the defendant’s case in attacking the search warrant, then in the interest of justice it must be given to the defendant. The Government has no reason not to give it, said Roviaro, and that is the controlling law.
“Let me demonstrate how in our opinion the names of the informants are necessary.”

Counsel then went on to argue why disclosure of one informant’s name was essential to his motion to suppress. Then he shifted to another attack stating:

“7 would suggest that not only is this informant necessary to the defendant because if he takes the stand it will demonstrate that Sam Rugendorf had nothing to do with it, or possibly his falsity, but I would suggest that perhaps he would be a pretty good witness for the Government, that they ought not to want to hide the witness, that he would pretty much make out a case for the Government. [Italics added.]
“In any event, your Honor, I rely upon United States v. Pearce, 275 F. 2d, our Circuit. I rely upon Roviaro v. United States, 353 U. S. 53. And I rely upon Giordenello v. United States, 357 U. S. 480, as being the proper procedure that I am trying to get here, your Honor.”

It is impossible to say that this motion related wholly to quash the search warrant. It is true that Pearce and Giordenello involved such motions. But Roviaro did not. Rather it presented the same issue this case presents, viz., whether the “informer’s privilege,” 353 U. S., at 59, must give way in the interests of the defense of the accused.

The prosecutor objected, saying “that if the Government is to reveal the name of any informants they might be and probably would be killed.”

The trial judge denied the motion and the trial started. During the trial the request was repeated, counsel for petitioner saying “I need that information to defend my defendant, your Honor.” Whatever defect, if any, may have been present in his first motion did not appear this time. For now he was plainly addressing himself to the trial on the merits. Once again his request was denied.

It is obvious that these requests were made not only to challenge the sufficiency of the affidavit as a basis of the search warrant, but also for use on the issue of guilt or innocence — viz., knowing possession of stolen goods. The issue was considered by the Court of Appeals, 316 F. 2d 589, 592; and we should do the same.

Petitioner and his wife were in Florida on vacation between February 17 and March 4, 1962. Before they left Chicago petitioner’s brother Leo — an admitted “fence” for stolen goods — came to his house to see him:

“Leo asked who was going to look after the mail, clean the sidewalks and everything else and he told Leo that his son Jerry would do it. Leo said that Jerry had to open the store every morning and stated that he got down a little later every day and so why not let him watch the house and bring in the mail. Accordingly, he gave his brother the keys.
“From that day, on February 17, 1962, until this day [the time of the trial] he had not seen or talked to his brother Leo; nor had Leo returned the key.”

Leo, the brother, had one key to the house during petitioner’s absence. His sister, his son, and a neighbor also had keys. Since one of these was a known criminal, and since the informant had personally been in the basement of petitioner’s home, the pertinency of the inquiry as to the informant’s name becomes obvious.

Speaking of the “informer’s privilege,” we said in Roviaro v. United States, 353 U. S. 53, 59: “The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.”

But there are times when the privilege must give way. In Roviaro, we put one of those exceptions in these words: “Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense, of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action.” Id., at 60-61.

It is difficult to imagine a clearer case than the present one for application of that exception.

The Solicitor General seeks to avoid that conclusion by saying that even though the informant might disclose who stole the furs and how they reached the defendant’s basement, “this would not necessarily have cast light upon the issue of petitioner’s knowledge.” The Solicitor General also argues that it is highly conjectural that identification of the person who admitted the informant to the basement would materially illuminate the question of petitioner’s knowledge. We have, however, a case where the only proof implicating defendant was discovery of the stolen furs in his basement. Four keys to the house were in the hands of outsiders, one of whom had a criminal record for trafficking in stolen goods; the stolen furs may have reached defendant’s basement during his absence and remained there without his knowledge. His only defense would be proof that someone without his knowledge put them there. Who that person was, when he placed the furs in the basement, what his motivations were in placing the furs there, what his relations with the defendant were, what connections he had with the stolen articles — these questions go to the very heart of the defense. Roviaro would, therefore, require in the exercise of sound discretion disclosure of the informant. Unless we allow that amount of leeway, we can only rest uneasy in the thought that we are helping send an innocent man to prison.

The Court does not face up to this crucial issue because, with due respect, it takes a Baron Parke approach when examining the record, the motions made, and the exceptions taken; and it concludes that the proper talismanic words were not used when the request for the informant’s name was made. But that attitude belongs to an ancient regime, not to the one we administer under Rule 52 (b) of the Federal Rules of Criminal Procedure (see Silber v. United States, 370 U. S. 717), which provides: “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” Our Rule 40 (1) (d)(2) is to the same effect. Enough has been said to show that the issue was squarely raised in the trial court and squarely passed upon by the Court of Appeals. But if it is assumed arguendo that the point was not squarely raised, few clearer cases for applying Rule 52 (b) have appeared, at least in recent years.

       18 U. S. C. §2315:
      “Shall be fined not more than $10,000 or imprisoned not more than ten years, or both.”

       Rule 41 (e) of the Federal Rules of Criminal Procedure:

        “Motion for Return .of Property and to Suppress Evidence. A person aggrieved by an unlawful search and seizure may move the district court for the district in which the property was seized for the return of the property and to suppress for the use as evidence anything so obtained on the ground that ... (4) there was not probable cause for believing the existence of the grounds on which the warrant was issued

       In fact, petitioner terminated his business association with his brother Leo and with Rugendorf Brothers Meat Market in 1952.

       The affidavit alleged that McCormick told the affiant that Police Officer Kelleher told him that petitioner was the manager of Rugendorf Brothers Meat Market and that a confidential informant told McCormick that Leo and petitioner were associated in the meat business. Kelleher testified that he did not so inform McCormick. The latter was in the hospital for an operation at the time of trial, but his deposition was not sought nor any postponement requested to enable him to be present.

       It was during the hearing on the motion prior to trial that petitioner cited United States v. Pearce, 275 F. 2d 318; Giordenello v. United States, 357 U. S. 480; and Roviaro v. United States, 353 U. S. 53. His counsel said: “That is, Giordinella [sic] states that the defendant has a right to have such hearing [on suppression]. Pierce [sic] and Roviera [sic] state we have a right in advance of the hearing to demand the names of the informers if the names are essential to the defense of the defendant in the prosecution of his petition to suppress the evidence." (Emphasis supplied.) And on the second hearing when the Government offered the furs in evidence he again urged his motion, in the absence of the jury, introducing evidence showing the “factual errors” in the affidavit. On arguing the motion, petitioner’s., counsel said: “Here is what Pierce [sic] says, and here is what United States v. Roviera [sic] says: ‘When it is demonstrated to the Court that it is essential to the defendant’s rights, constitutional rights, that information be given to him so that he can test the validity of the affidavit,’ then it must be given to him.” Clearly his reliance on Roviaro for suppression purposes, which was the sole reason for which it was cited, was entirely misplaced.

       The majority states that the demand for disclosure as it related to a defense on the merits “was not properly raised in the trial court nor passed upon there, and, accordingly, must be denied here.” Ante, at 534. But the trial excerpts reproduced above amply rebut that contention as it relates to the trial. And the Court of Appeals expressly said:
      “The remaining point raised by defendant as error is the refusal of the trial court to require the disclosure of the name of the informer. The defendant relies on Roviaro v. United States, 353 U. S. 53.” 316 F. 2d 589, 592.
      As already noted, Roviaro did not involve a challenge to the sufficiency of a search warrant. It presented the issue this ease does. One requesting disclosure and citing Roviaro as authority obviously is seeking to bring himself within the situation to which the Roviaro rule is applicable.


source: Caselaw Access Project

author: Mr. Justice Harlan

license: Public Domain

text:
    JOHN WILEY & SONS, INC., v. LIVINGSTON, PRESIDENT OF DISTRICT 65, RETAIL, WHOLESALE AND DEPARTMENT STORE UNION, AFL-CIO.
    No. 91.
    Argued January 9, 13, 1964.
    Decided March 30, 1964.

      Charles H. Lieb argued the cause for petitioner. With him on the briefs was Robert H. Bloom.

      Irving Rozen argued the cause for respondent. With him on the brief was Milton C. Weisman.

      Thomas E. Harris argued the cause for the American Federation of Labor and Congress of Industrial Organizations, as amicus curiae, urging affirmance. On the brief were J. Albert Woll, David E. Feller, Elliot Bredhoff, Jerry D. Anker and Michael H. Gottesman.

   Mr. Justice Harlan

delivered the opinion of the Court.

This is an action by a union, pursuant to § 301 of the Labor Management Relations Act, 61 Stat. 136, 156, 29 U. S. C. § 185, to compel arbitration under a collective bargaining agreement. The major questions presented are (1) whether a corporate employer must arbitrate with a union under a bargaining agreement between the union and another corporation which has merged with the employer, and, if so, (2) whether the courts or the arbitrator is the appropriate body to decide whether procedural prerequisites which, under the bargaining agreement, condition the duty to arbitrate have been met. Because of the importance of both questions to the realization of national labor policy, we granted certiorari (373 U. S. 908) to review a judgment of the Court of Appeals directing arbitration (313 F. 2d 52), in reversal of the District Court which had refused such relief (203 F. Supp. 171). We affirm the judgment below, but, with respect to the first question above, on grounds which may differ from those of the Court of Appeals, whose answer to that question is unclear.

I.

District 65, Retail, Wholesale and Department Store Union, AFL-CIO, entered into a collective bargaining agreement with Interscience Publishers, Inc., a publishing firm, for a term expiring on January 31, 1962. The agreement did not contain an express provision making it binding on successors of Interscience. On October 2, 1961, Interscience merged with the petitioner, John Wiley & Sons, Inc., another publishing firm, and ceased to do business as a separate entity. There is no suggestion that the merger was not for genuine business reasons.

At the time of the merger Interscience had about 80 employees, of whom 40 were represented by this Union. It had a single plant in New York City, and did an annual business of somewhat over $1,000,000. Wiley was a much larger concern, having separate office and warehouse facilities and about 300 employees, and doing an annual business of more than $9,000,000. None of Wiley’s employees was represented by a union.

In discussions before and after the merger, the Union and Interscience (later Wiley) were unable to agree on the effect of the merger on the collective bargaining agreement and on the rights under it of those covered employees hired by Wiley. The Union’s position was that despite the merger it continued to represent the covered Interscience employees taken over by Wiley, and that Wiley was obligated to recognize certain rights of such employees which had “vested” under the Inter-science bargaining agreement. Such rights, more fully described below, concerned matters typically covered by collective bargaining agreements, such as seniority status, severance pay, etc. The Union contended also that Wiley was required to make certain pension fund payments called for under the Interscience bargaining agreement.

Wiley, though recognizing for purposes of its own pension plan the Interscience service of the former Inter-science employees, asserted that the merger terminated the bargaining agreement for all purposes. It refused to recognize the Union as bargaining agent or to accede to the Union’s claims on behalf of Interscience employees. All such employees, except a few who ended their Wiley employment with severance pay and for whom no rights are asserted here, continued in Wiley’s employ.

No satisfactory solution having been reached, the Union, one week before the expiration date of the Inter-science bargaining agreement, commenced this action to compel arbitration.

II.

The threshold question in this controversy is who shall decide whether the arbitration provisions of the collective bargaining agreement survived the Wiley-Interscience merger, so as to be operative against Wiley. Both parties urge that this question is for the courts. Past cases leave no doubt that this is correct. “Under our decisions, whether or not the company was bound to arbitrate, as well as what issues it must arbitrate, is a matter to be determined by the Court on the basis of the contract entered into by the parties.” Atkinson v. Sinclair Refining Co., 370 U. S. 238, 241. Accord, e. g., United Steelworkers v. Warrior & Gulf Navigation Co., 363 U. S. 574, 582. The problem in those cases was whether an employer, concededly party to and bound by a contract which contained an arbitration provision, had agreed to arbitrate disputes of a particular kind. Here, the question is whether Wiley, which did not itself sign the collective bargaining agreement on which the Union’s claim to arbitration depends, is bound at all by the agreement’s arbitration provision. The reason requiring the courts to determine the issue is the same in both situations. The duty to arbitrate being of contractual origin, a compulsory submission to arbitration cannot precede judicial determination that the collective bargaining agreement does in fact create such a duty. Thus, just as an employer has no obligation to arbitrate issues which it has not agreed to arbitrate, so a fortiori, it cannot be compelled to arbitrate if an arbitration clause does not bind it at all.

The unanimity of views about who should decide the question of arbitrability does not, however, presage the parties’ accord about what is the correct decision. Wiley, objecting to arbitration, argues that it never was a party to the collective bargaining agreement, and that, in any event, the Union lost its status as representative of the former Interscience employees when they were mingled in a larger Wiley unit of employees. The Union argues that Wiley, as successor to Interscience, is bound by the latter’s agreement, at least sufficiently to require it to arbitrate. The Union relies on § 90 of the N. Y. Stock Corporation Law, which provides, among other things, that no “claim or demand for any cause” against a constituent corporation shall be extinguished by a consolidation. Alternatively, the Union argues that, apart from § 90, federal law requires that arbitration go forward, lest the policy favoring arbitration frequently be undermined by changes in corporate organization.

Federal law, fashioned “from the policy of our national labor laws,” controls. Textile Workers Union v. Lincoln Mills, 353 U. S. 448, 456. State law may be utilized so far as it is of aid in the development of correct principles or their application in a particular case, id,., at 457, but the law which ultimately results is federal. We hold that the disappearance by merger of a corporate employer which has entered into a collective bargaining agreement with a union does not automatically terminate all rights of the employees covered by the agreement, and that, in appropriate circumstances, present here, the successor employer may be required to arbitrate with the union under the agreement.

This Court has in the past recognized the central role of arbitration in effectuating national labor policy. Thus, in Warrior & Gulf Navigation Co., supra, at 578, arbitration was described as “the substitute for industrial strife,” and as “part and parcel of the collective bargaining process itself.” It would derogate from “the federal policy of settling labor disputes by arbitration,” United Steelworkers v. Enterprise Wheel & Car Corp., 363 U. S. 593, 596, if a change in the corporate structure or ownership of a business enterprise had the automatic consequence of removing a duty to arbitrate previously established; this is so as much in cases like the present, where the contracting employer disappears into another by merger, as in those in which one owner replaces another but the business entity remains the same.

Employees, and the union which represents them, ordinarily do not take part in negotiations leading to a change in corporate ownership. The negotiations will ordinarily not concern the well-being of the employees, whose advantage or disadvantage, potentially great, will inevitably be incidental to the main considerations. The objectives of national labor policy, reflected in established principles of federal law, require that the rightful prerogative of owners independently to rearrange their businesses and even eliminate themselves as employers be balanced by some protection to the employees from a sudden change in the employment relationship. The transition from one corporate organization to another will in most cases be eased and industrial strife avoided if employees’ claims continue to be resolved by arbitration rather than by “the relative strength ... . of the contending forces,” Warrior & Gulf, supra, at 580.

The preference of national labor policy for arbitration as a substitute for tests of strength between contending forces could be overcome only if other considerations compellingly so demanded. We find none. While the principles of law governing ordinary contracts would not bind to a contract an unconsenting successor to a contracting party, a collective bargaining agreement is not an ordinary contract. “. . . [I] t is a generalized code to govern a myriad of cases which the draftsmen cannot wholly anticipate. . . . The collective agreement covers the whole employment relationship. It calls into being a new common law — the common law of a particular industry or of a particular plant.” Warrior & Gulf, supra, at 578-579 (footnotes omitted). Central to the peculiar status and function of a collective bargaining agreement is the fact, dictated both by circumstance, see id., at 580, and by the requirements of the National Labor Relations Act, that it is not in any real sense the simple product of a consensual relationship. Therefore, although the duty to arbitrate, as we have said, supra, pp. 546-547, must be founded on a contract, the impressive policy considerations favoring arbitration are not wholly overborne by the fact that Wiley did not sign the contract being construed. This ease cannot readily be assimilated to the category of those in which there is no contract whatever, or none which is reasonably related to the party sought to be obligated. There was a contract, and Interscience, Wiley’s predecessor, was party to it. We thus find Wiley’s obligation to arbitrate this dispute in the Interscience contract construed in the context of a national labor policy.

We do not hold that in every case in which the ownership or corporate structure of an enterprise is changed the duty to arbitrate survives. As indicated above, there may be cases in which the lack of any substantial continuity of identity in the business enterprise before and after a change would make a duty to arbitrate something imposed from without, not reasonably to be found in the particular bargaining agreement and the acts of the parties involved. So too, we do not rule out the possibility that a union might abandon its right to arbitration by failing to make its claims known. Neither of these situations is before the Court. Although Wiley was substantially larger than Interscience, relevant similarity and continuity of operation across the change in ownership is adequately evidenced by the wholesale transfer of Inter-science employees to the Wiley plant, apparently without difficulty. The Union made its position known well before the merger and never departed from it. In addition, we do not suggest any view on the questions surrounding a certified union’s claim to continued representative status following a change in ownership. See, e. g., Labor Board v. Aluminum Tubular Corp., 299 F. 2d 595, 598-600; Labor Board v. McFarland, 306 F. 2d 219; Cruse Motors, Inc., 105 N. L. R. B. 242, 247. This Union does not assert that it has any bargaining rights independent of the Interscience agreement; it seeks to arbitrate claims based on that agreement, now expired, not to negotiate a new agreement.

III.

Beyond denying its obligation to arbitrate at all, Wiley urges that the Union’s grievances are not within the scope of the arbitration clause. The issues which the Union sought to arbitrate, as set out in the complaint, are:

“(a) Whether the seniority rights built up by the Interscience employees must be accorded to said employees now and after January 30, 1962.
“(b) Whether, as part of the wage structure of the employees, the Company is under an obligation to continue to make contributions to District 65 Security Plan and District 65 Security Plan Pension Fund now and after January 30, 1962.
“(c) Whether the job security and grievance provisions of the contract between the parties shall continue in full force and effect.
“(d) Whether the Company must obligate itself to continue liable now and after January 30, 1962 as to severance pay under the contract.
“(e) Whether the Company must obligate itself to continue liable now and after January 30, 1962 for vacation pay under the contract.”

Section 16.0 of the collective bargaining agreement provides for arbitration as the final stage of grievance procedures which are stated to be the “sole means of obtaining adjustment” of “any differences, grievance or dispute between the Employer and the Union arising out of or relating to this agreement, or its interpretation or application, or enforcement . . . .” There are a number of specific exceptions to the coverage of the grievance procedures, none of which is applicable here. Apart from them, the intended wide breadth of the arbitration clause is reflected by § 16.9 of the agreement which provides, with an irrelevant exception;

“. . . [T]he arbitration procedure herein set forth is the sole and exclusive remedy of the parties hereto and the employees covered hereby, for any claimed violations of this contract, and for any and all acts or omissions claimed to have been committed by either party during the term of this agreement, and such arbitration procedure shall be (except to enforce, vacate, or modify awards) in lieu of any and all other remedies, forums at law, in equity or otherwise which will or may be available to either of the parties. . . .”

All of the Union’s grievances concern conditions of employment typically covered by collective bargaining agreements and submitted to arbitration if other grievance procedures fail. Specific provision for each of them is made in the Interscience agreement. There is thus no question that had a dispute concerning any of these subjects, such as seniority rights or severance pay, arisen between the Union and Interscience prior to the merger, it would have been arbitrable. Wiley argues, however, that the Union’s claims are plainly outside the scope of the arbitration clause: first, because the agreement did not embrace post-merger claims, and, second, because the claims relate to a period beyond the limited term of the agreement.

In all probability, the situation created by the merger was one not expressly contemplated by the Union or Interscience when the agreement was made in 1960. Fairly taken, however, the Union’s demands collectively raise the question which underlies the whole litigation: What is the effect of the merger on the rights of covered employees? It would be inconsistent with our holding that the obligation to arbitrate survived the merger were we to hold that the fact of the merger, without more, removed claims otherwise plainly arbitrable from the scope of the arbitration clause.

It is true that the Union has framed its issues to claim rights not only “now” — after the merger but during the term of the agreement — but also after the agreement expired by its terms. Claimed rights during the term of the agreement, at least, are unquestionably within the arbitration clause; we do not understand Wiley to urge that the Union’s claims to all such rights have become moot by reason of the expiration of the agreement. As to claimed rights “after January 30, 1962,” it is reasonable to read the claims as based solely on the Union’s construction of the Interscience agreement in such a way that, had there been no merger, Interscience would have been required to discharge certain obligations notwithstanding the expiration of the agreement. We see no reason why parties could not if they so chose agree to the accrual of rights during the term of an agreement and their realization after the agreement had expired. Of course, the Union may not use arbitration to acquire new rights against Wiley any more than it could have used arbitration to negotiate a new contract with Inter-science, had the existing contract expired and renewal negotiations broken down.

Whether or not the Union’s demands have merit will be determined by the arbitrator in light of the fully developed facts. It is sufficient for present purposes that the demands are not so plainly unreasonable that the subject matter of the dispute must be regarded as non-arbitrable because it can be seen in advance that no award to the Union could receive judicial sanction. See Warrior & Gulf, supra, at 582-583.

IV.

Wiley’s final objection to arbitration raises the question of so-called “procedural arbitrability.” The Interscience agreement provides for arbitration as the third stage of the grievance procedure. “Step 1” provides for “a conference between the affected employee, a Union Steward and the Employer, officer or exempt supervisory person in charge of his department.” In “Step 2,” the grievance is submitted to “a conference between an officer of the Employer, or the Employer’s representative designated for that purpose, the Union Shop Committee and/or a representative of the Union.” Arbitration is reached under “Step 3” “in the event that the grievance shall not have been resolved or settled in ‘Step 2.’ ” Wiley argues that since Steps 1 and 2 have not been followed, and since the duty to arbitrate arises only in Step 3, it has no duty to arbitrate this dispute. Specifically, Wiley urges that the question whether “procedural” conditions to arbitration have been met must be decided by the court and not the arbitrator.

We think that labor disputes of the kind involved here cannot be broken down so easily into their “substantive” and “procedural” aspects. Questions concerning the procedural prerequisites to arbitration do not arise in a vacuum; they develop in the context of an actual dispute about the rights of the parties to the contract or those covered by it. In this case, for example, the Union argues that Wiley’s consistent refusal to recognize the Union’s representative status after the merger made it “utterly futile — and a little bit ridiculous to follow the grievance steps as set forth in the contract.” Brief, p. 41. In addition, the Union argues that time limitations in the grievance procedure are not controlling because Wiley’s violations of the bargaining agreement were “continuing.” These arguments in response to Wiley’s “procedural” claim are meaningless unless set in the background of the merger and the negotiations surrounding it.

Doubt whether grievance procedures or some part of them apply to a particular dispute, whether such procedures have been followed or excused, or whether the unexcused failure to follow them avoids the duty to arbitrate cannot ordinarily be answered without consideration of the merits of the dispute which is presented for arbitration. In this case, one’s view of the Union’s responses to Wiley’s “procedural” arguments depends to a large extent on how one answers questions bearing on the basic issue, the effect of the merger; e. g., whether or not the merger was a possibility considered by Interscience and the Union during the negotiation of the contract. It would be a curious rule which required that intertwined issues of “substance” and “procedure” growing out of a single dispute and raising the same questions on the same facts had to be carved up between two different forums, one deciding after the other. Neither logic nor considerations of policy compel such a result.

Once it is determined, as we have, that the parties are obligated to submit the subject matter of a dispute to arbitration, “procedural” questions which grow out of the dispute and bear on its final disposition should be left to the arbitrator. Even under a contrary rule, a court could deny arbitration only if it could confidently be said not only that a claim was strictly “procedural,” and therefore within the purview of the court, but also that it should operate to bar arbitration altogether, and not merely limit or qualify an arbitral award. In view of the policies favoring arbitration and the parties’ adoption of arbitration as the preferred means of settling disputes, such cases are likely to be rare indeed. In all other cases, those in which arbitration goes forward, the arbitrator would ordinarily remain free to reconsider the ground covered by the court insofar as it bore on the merits of the dispute, using the flexible approaches familiar to arbitration. Reservation of “procedural” issues for the courts would thus not only create the difficult task of separating related issues, but would also produce frequent duplication of effort.

In addition, the opportunities for deliberate delay and the possibility of well-intentioned but no less serious delay created by separation of the “procedural” and “substantive” elements of a dispute are clear. While the courts have the task of determining “substantive arbitra-bility,” there will be cases in which arbitrability of the subject matter is unquestioned but a dispute arises over the procedures to be followed. In all of such cases, acceptance of Wiley’s position would produce the delay attendant upon judicial proceedings preliminary to arbitration. As this case, commenced in January 1962 and not yet committed to arbitration, well illustrates, such delay may entirely eliminate the prospect of a speedy arbitrated settlement of the dispute, to the disadvantage of the parties (who, in addition, will have to bear increased costs) and contrary to the aims of national labor policy.

No justification for such a generally undesirable result is to be found in a presumed intention of the parties. Refusal to order arbitration of subjects which the parties have not agreed to arbitrate does not entail the fractionating of disputes about subjects which the parties do wish to have submitted. Although a party may resist arbitration once a grievance has arisen, as does Wiley here, we think it best accords with the usual purposes of an arbitration clause and with the policy behind federal labor law to regard procedural disagreements not as separate disputes but as aspects of the dispute which called the grievance procedures into play.

With the reservation indicated at the outset (p. 544 and p. 546, note 1, supra), the judgment of the Court of Appeals is

Affirmed.

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

       Wiley argues that the Court of Appeals decided that the effect of the merger on the obligation to arbitrate was a question for the arbitrator. The opinion below is unclear. It first states that “the question of 'substantive arbitrability’ is for the court not for the arbitrator to decide.” 313 F. 2d, at 55. At another point, it says: “We merely hold that, as we interpret the collective bargaining agreement before us in the light of Supreme Court decisions enunciating the federal policy of promoting industrial peace and stability, especially with reference to arbitration procedures set up in collective bargaining agreements, we cannot say that it was intended that this consolidation should preclude this Union from proceeding to arbitration to determine the effect of the consolidation on the contract and on the rights of the employees arising under the contract.” 313 F. 2d, at 56-57.
      Elsewhere, however, the opinion states: "... [W]e think and hold . . . that it is not too much to expect and require that this employer proceed to arbitration with the representatives of the Union to determine whether the obligation to arbitrate regarding the substantive terms of the contract survived the consolidation on October 2, 1961, and, if so, just what employee rights, if any, survived the consolidation.” 313 F. 2d, at 57 (footnote omitted). Judge Kaufman, concurring separately, plainly thought that the court had left to the arbitrator the question of whether Wiley was obligated to arbitrate at all. 313 F. 2d, at 65, 66.

       “The rights of creditors of any constituent corporation shall not in any manner be impaired, nor shall any liability or obligation due or to become due, or any claim or demand for any cause existing against any such corporation or against any stockholder thereof be released or impaired by any such consolidation; but such consolidated corporation shall be deemed to have assumed and shall be liable for all liabilities and obligations of each of the corporations consolidated in the same manner as if such consolidated corporation had itself incurred such liabilities or obligations. The stockholders of the respective constituent corporations shall continue subject to all the liabilities, claims and demands existing against them as such, at or before the consolidation; and no action or proceeding then pending before any court or tribunal in which any constituent corporation is a party, or in which any such stockholder is a party, shall abate or be discontinued by reason of such consolidation, but may be prosecuted to final judgment, as though no consolidation had been entered into; or such consolidated corporation may be substituted as a party in place of any constituent corporation, by order of the court in which such action or proceeding may be pending.”

       But cf. the general rule that in the case of a merger the corporation which survives is liable for the debts and contracts of the one which disappears. 15 Fletcher, Private Corporations (1961 rev. ed.), §7121.

       Compare the principle that when a contract is scrutinized for evidence of an intention to arbitrate a particular kind of dispute, national labor policy requires, within reason, that “an interpretation that covers the asserted dispute,” Warrior & Gulf, supra, pp. 582-583, be favored.

       The fact that the Union does not represent a majority of an appropriate bargaining unit in Wiley does not prevent it from representing those employees who are covered by the agreement which is in dispute and out of which Wiley’s duty to arbitrate arises. Retail Clerks Int’l Assn., Local Unions Nos. 128 & 633, v. Lion Dry

        Goods, Inc., 369 U. S. 17. There is no problem of conflict with another union, cf. L. B. Spear & Co., 106 N. L. R. B. 687, since Wiley-had no contract with any union covering the unit of employees which received the former Interscience employees.
      Problems might be created by an arbitral award which required Wiley to give special treatment to the former Interscience employees because of rights found to have accrued to them under the Inter-science contract. But the mere possibility of such problems cannot cut off the Union’s right to press the employees’ claims in arbitration. While it would be premature at this stage to speculate on how to avoid such hypothetical problems, we have little doubt that within the flexible procedures of arbitration a solution can be reached which would avoid disturbing labor relations in the Wiley plant.

       Section 16.5 provides:
      “It is agreed that, in addition to other provisions elsewhere contained in this agreement which expressly deny arbitration to specific events, situations or contract provisions, the following matters shall not be subject to the arbitration provisions of this agreement:
      “(1) the amendment or modification of the terms and provisions of this agreement;
      “(2) salary or minimum wage rates as set forth herein;
      “(3) matters not covered by this agreement; and
      “(4) any dispute arising out of any question pertaining to the renewal or extension of this agreement.”
      Other provisions of the agreement “which expressly deny arbitration to specific events” are §§4.2, 4.4, 6.4.1, 14.4, 16.9.

       See Art. VI: Seniority; Art. XV: Welfare Security Benefits; Art. VII: Discharges and Lay-offs; Art. XXIII: Severance Pay; Art. XII: Vacations.

       Wiley apparently concedes the possibility that a right to severance pay might accrue before the expiration of the contract but be payable “at some future date.” Brief, p. 38.

       Wiley apparently so construes at least part of one of the Union’s claims. See note 8, supra.

       All of these provisions are contained in § 16.0 of the Interscience agreement.

         In addition to the failure to follow the procedures of Steps 1 and 2, Wiley objects to the Union’s asserted failure to comply with § 16.6, which provides: “Notice of any grievance must be filed with the Employer and with the Union Shop Steward within four (4) weeks after its occurrence or latest existence. The failure by either party to file the grievance within this time limitation shall be construed and be deemed to be an abandonment of the grievance.”

       The Courts of Appeals have disagreed on this issue. The First and Seventh Circuits have held that the courts determine whether procedural conditions to arbitration have been met. Boston Mutual Life Ins. Co. v. Insurance Agents’ Int’l Union, 258 F. 2d 516; Brass & Copper Workers Federal Labor Union No. 19322 v. American Brass Co., 272 F. 2d 849. The Third, Fifth, and Sixth Circuits agree with the Second Circuit’s decision in this case that the question of “procedural arbitrability” is for the arbitrator. Radio Corporation of America v. Association of Professional Engineering Personnel, 291 F. 2d 105; Deaton Truck Line, Inc., v. Local Union 612, 314 F. 2d 418; Local 748 v. Jefferson City Cabinet Co., 314 F. 2d 192.


author: Mr. Justice Harlan Mr. Justice Goldberg,

text:
    MRVICA v. ESPERDY, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE.
    No. 353.
    Argued March 5, 1964.
    Decided March 30, 1964.

      Edith Lowenstein argued the cause and filed a brief for petitioner.

      Richard W. Schmude argued the cause for respondent. With him on the brief were Solicitor General Cox, Assistant Attorney General Miller, Louis F. Claiborne and Beatrice Rosenberg.

   Mr. Justice Harlan

delivered the opinion of the Court.

This case involves construction of the provisions of § 249 of the Immigration and Nationality Act, 66 Stat. 163, 219, 8 U. S. C. § 1259, which in certain circumstances permits an alien illegally in this country to apply for a record of lawful admission into the United States for permanent residence.

The petitioner is a native and citizen of Yugoslavia, who entered this country under a temporary landing permit in January 1940, as a nonimmigrant crewman attached to a merchant ship. He remained beyond the period allowed by the permit without permission until September 4, 1942, when a warrant for his deportation was issued. Soon thereafter, he signed as a member of the crew of a Yugoslav ship about to depart from the United States. The ship sailed with the petitioner on board on October 6, 1942, and, after calling at several ports in Chile, returned to the United States on December 19, 1942. The petitioner was detained on board ship for several days, but was then allowed to go ashore for medical treatment. He has not left the country since.

In 1951, new deportation proceedings were instituted against the petitioner, whose presence in this country apparently had meanwhile gone unnoticed by the immigration authorities. He was again found subject to deportation but was granted the privilege of voluntary departure. This decision of the hearing officer was affirmed by the Assistant Commissioner, whose order became final on March 22,1954, when the Board of Immigration Appeals entered an order dismissing the petitioner’s appeal. Other proceedings followed, which ultimately resulted in 1959 in an order that the petitioner be deported to Yugoslavia. The petitioner’s application for the status of a permanent resident under § 249 of the Immigration and Nationality Act was denied on the ground, explained more fully below, that his departure in 1942 made him ineligible for such discretionary relief because it deprived him of the prerequisite continuous residence in the United States since 1940. In 1960 the petitioner brought this action in the United States District Court for review of the administrative ruling and a declaratory judgment that he was eligible for relief under § 249. The District Court granted summary judgment for the respondent, 202 F. Supp. 214, which the Court of Appeals affirmed, 317 F. 2d 220. We granted certiorari, 375 U. S. 894, and now affirm the rulings below.

Section 249 of the Immigration and Nationality Act provides:

“A record of lawful admission for permanent residence may, in the discretion of the Attorney General and under such regulations as he may prescribe, be made in the case of any alien, as of the date of the approval of his application or, if entry occurred prior to July 1, 1924, as of the date of such entry, if no such record is otherwise available and such alien shall satisfy the Attorney General that he is not inadmissible under section 212 (a) insofar as it relates to criminals, procurers and other immoral persons, subversives, violators of the narcotic laws or smugglers of aliens, and he establishes that he—
“(a) entered the United States prior to June 28, 1940;
“(b) has had his residence in the United States continuously since such entry;
“(c) is a person of good moral character; and

It is agreed by both sides that the petitioner satisfies all the specified criteria except the requirement of continuous residence since an entry prior to June 28, 1940. The question for decision is whether his departure from the United States in 1942 and his absence from this country for several months thereafter defeat his claim to a continuous residence here since 1940.

The petitioner, whose case has been earnestly and ably pressed before us, concedes that he was ordered deported in 1942 and that his departure “executed” the order of deportation. There can be no doubt that this latter point is correct. Legislation then applicable provided that “. . . any alien ordered deported . . . who has left the United States shall be considered to have been deported in pursuance of law, irrespective of the source from which the expenses of his transportation were defrayed or of the place to which he departed.” Act of March 4, 1929, § 1 (b), 45 Stat. 1551, 8 U. S. C. (1940 ed.) § 180 (b). Any possible doubt of the import of this provision is removed by H. R. Rep. No. 2418, 70th Cong., 2d Sess., 6, which explained the provision as follows:

“Owing to the inadequacy of the appropriations now made for enforcement of deportation provisions under existing law, the Department of Labor has, in many cases, after a warrant of deportation has been issued, refrained from executing the warrant and deporting the alien, at the expense of the appropriation, to the country to which he might be deported, upon the condition that the alien voluntarily, at his own expense, leave the United States. Some doubt exists whether an alien so departing has been 'deported.’ Subsection (b) of section 3 of the bill [the provision quoted above] therefore removes any possible doubt on this question by providing that in such cases the alien shall be considered to have been deported in pursuance of law.”

The petitioner’s departure was thus properly treated as a deportation by the Immigration and Naturalization Service, officials of which marked the warrant for deportation as “executed” and prepared papers, including a “Description of Person Deported,” recording his deportation and the manner in which it was accomplished. The latter document also noted that the petitioner had a Yugoslavian passport.

The petitioner challenges none of the above. He pitches his argument on the statutory definition of “residence” as “the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent.” Immigration and Nationality Act, §101 (a) (33), 66 Stat. 170, 8 U. S. C. § 1101 (a)(33). The petitioner argues that the statute makes “residence” a question of observable fact, and that, on this basis, his residence throughout the 1942 voyage must be taken as having remained in the United States. He points to various circumstances surrounding his departure which, he argues, establish that his “residence,” as defined above, was not interrupted in 1942, although he was physically absent from the United States for the period of the voyage.

The facts on which the petitioner relies are of two kinds. He points first to such typical indicia of residence as the maintenance of a bank account in this country and continued membership in a domestic union. More weight, however, is placed on the inclusion in the warrant for the petitioner’s deportation in 1942 of a “Ninth Proviso clause,” which provided:

“If the alien returns to the United States from time to time and upon inspection is found to be a bona fide seaman and entitled to shore leave, except for prior deportation, admission under the 9th Proviso of Section 3 of the Act of February 5, 1917, in reference to this ground of inadmissibility is hereby authorized for such time as the alien may be admitted as a seaman.”

This clause, included in the warrant pursuant to statutory authority, relieved the petitioner of the combined effect of provisions making arrest and deportation a basis for exclusion and depriving an alien seaman subject to exclusion of landing privileges. The petitioner suggests that due to wartime conditions deportation to Yugoslavia was impossible in 1942 and that the order of deportation was therefore in reality but a formality or fiction, everyone involved understanding, as the “Ninth Proviso clause” is said to attest, that he would be readmitted when his ship returned.

This argument contradicts what is plainly shown by the record. There is nothing in the order of deportation, in the endorsement of its “execution,” or in any of the subsequent proceedings to indicate that the deportation order was not what it purported to be. No reason is suggested why the immigration authorities should have gone through a meaningless ritual of deportation for the purpose of not deporting the petitioner. The ameliorative clause on which the petitioner relies indicates, if anything, that the petitioner was not intended to be readmitted as a resident; his admission was conditioned on a finding that he was “a bona fide seaman and entitled to shore leave” and was authorized only “for such time as the alien may be admitted as a seaman.”

Once these arguments are laid to rest, the proper disposition of this case is clear and unavoidable. By express legislative directive, the petitioner’s departure in 1942 is for present purposes to be regarded as a deportation. We think it beyond dispute that one who has been deported does not continue to have his residence here, whatever may be the significance of other factors in the absence of a valid deportation. In an early case, this Court stated:

“The order of deportation ... is but a method of enforcing the return to his own country of an alien who has not complied with the conditions upon the performance of which the government of the nation, acting within its constitutional authority and through the proper departments, has determined that his continuing to reside here shall depend.” Fong Yue Ting v. United States, 149 U. S. 698, 730.

It would be quite impossible to consider that a deported alien, whose re-entry into this country within a year of deportation would be a felony, nevertheless continues to reside in this country.

The obvious purpose of deportation is to terminate residence. It would defy common understanding and disregard clear legislative intent were we to hold that that purpose had not been achieved in this instance.

The judgment is

Affirmed.

Mr. Justice Goldberg,

with whom

Mr. Justice Black and Mr. Justice Douglas join, dissenting.

Congress humanely designed § 249 of the Immigration and Nationality Act of 1952, as amended by the Act of August 8, 1958, 72 Stat. 546, 8 U. S. C. § 1259, to permit the Attorney General, if specified conditions are satisfied, to regularize the status of certain categories of aliens illegally in the country. Among the prerequisites for obtaining permanent resident status — “registry” as it is commonly termed — are (1) entry prior to June 28, 1940, (2) continuous residence in the United States thereafter, and (3) good moral character.

The Court acknowledges that petitioner has satisfied the entry and character conditions of the statute. It holds, however, that the continuous residence requirement has not been satisfied because petitioner must be considered, as a matter of law, to have been deported in October 1942 when he sailed as a crewman aboard the Yugoslavian vessel S. S. Dubravka on a round trip voyage of two and a half months’ duration between California and Chile.

The difficulty with the Court’s conclusion is that it rests, as I shall show, entirely on a legal fiction. I am unwilling to attribute to Congress, in enacting this remedial provision designed to regularize the status of long-resident aliens illegally in the country, an intent to deport them on the basis of legal fictions refuted by facts.

The warrant of September 4, 1942, on which the Court relies, directed petitioner’s deportation to Yugoslavia. The Government concedes, as indeed it must, the “practical impossibility” of deporting petitioner to Yugoslavia in 1942 in the midst of the war. Yugoslavia was then overrun and occupied by enemy forces. Petitioner could not have been, and was not in fact, deported to Yugoslavia. The Government suggests that it could have deported petitioner to Great Britain which was then the seat of the Yugoslav Government in exile. In fact, however, while other Yugoslav seamen stranded in the United States were deported to Great Britain during the war, petitioner was not. The Government does not claim that it actually executed the warrant in this way. The warrant itself shows that petitioner was not deported to Yugoslavia, Great Britain or any other foreign country. In returning the warrant as “executed,” an immigration official scribbled on its face “Reshipped.” He also caused to be typed after the printed word “Executed” on the warrant, “October 6th, 1942 Jogo Slav MS Dubravka.” The record also contains the following telegram from agents of the Service to the Commissioner of Immigration and Naturalization:

“Ellis Island, N. Y. H.,‘October 21, 1942 — 99563/665.
“Immigration & Naturalization Service,
“Philadelphia, Pa.
“ATWAR Ivan Mrvica . . . RESHIPPED.
“W. J. Zucker,
“Acting District Director
“New York District
“By
“J. A. CHRISTOPHERSON
“Inspector in Charge
“Law Division”

This telegram was confirmed as follows:

“The alien reshipped foreign October 6, 1942, ex MS Dubravka, from San Pedro, California. Original warrant of deportation, appropriately executed, is attached.”

In light of this record of what actually occurred, there is no support for the Court’s conclusion that: “There is nothing in the order of deportation, in the endorsement of its ‘execution,’ or in any of the subsequent proceedings to indicate that the deportation order was not what it purported to be.” Ante, at 567. On the contrary, the record clearly shows that petitioner was not actually deported to Yugoslavia in accordance with the terms of the warrant. Equally untenable is the Government’s argument that by taking the single brief round-trip voyage to South America petitioner terminated his continuous residence in the United States: “because the vessel he boarded flew the Yugoslav flag ... it may be said that petitioner at once resumed his former Yugoslav residence. . . . His actual dwelling place in fact was his ship.”

The definition of residence in the Immigration and Nationality Act refutes the view that by his “physical presence” on the ship petitioner abandoned his American residence. The statute, § 101 (a) (33) of the Immigration and Nationality Act of 1952, states that the “term ‘residence’ means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact . . . .” There can be no doubt that in fact petitioner’s dwelling place was not the ship; his “place of general abode” was on shore in the United States where it has been continuously since January 1940. Ever since he entered and overstayed his leave in January 1940, petitioner has sought by all available means to remain in the United States. His single aim from which he has never deviated has been to regularize his status in the country. The Court’s view that petitioner by shipping to South America departed the United States is a legal conclusion — under the circumstances here, a mere legal fiction. It must be remembered that the voyage which is said to have terminated petitioner’s residence was a wartime voyage on a privately owned ship which, although flying a Yugoslav flag, was then part of the allied merchant marine under the effective control of the United States.

Of course where an alien is subject to a warrant of deportation and with the permission of the Government knowingly and voluntarily leaves the country in order to avoid the consequences of enforced deportation, he will be deemed to have “left the United States,” within the meaning of the statute applicable at the time of petitioner’s voyage. 8 U. S. C. (1940 ed.) § 180 (b). This statute, however, like all the provisions of the Immigration Law, “cannot be 'mechanically applied,’ ” Costello v. Immigration and Naturalization Service, 376 U. S. 120, 130, to a situation where, as here, the facts negate voluntary departure.

There is nothing in the record of this case to show that petitioner was advised or notified that he was being deported when he shipped on the Yugoslav vessel. To the contrary the record shows, in the language of an immigration officer, that petitioner “reshipped.” Nor can it be said that he did so “voluntarily.” The Government frankly states, what is commonly known, that there was a shortage of merchant seamen during the war, and that all available means were used to insure that foreign seamen stranded in this country would “ship foreign,” i. e., on allied merchant ships. I imply no criticism of the Government’s efforts to man needed ships under the exigencies of war. I do maintain, however, that the circumstances negate the claim that petitioner “voluntarily” departed or left the United States when he “reshipped.”

The petitioner and the Government both knew when he sailed, moreover, that because of the prevailing wartime conditions and the limited itinerary of the voyage, he would shortly return and would be readmitted to the United States. Indeed in the warrant itself, petitioner was given express permission, notwithstanding the alleged deportation, to receive shore leave on returning. Under these circumstances, it is my view that petitioner in fact never gave up his residence in the United States. Since he never abandoned his residence in fact, he cannot, under the express terms of § 101, be deemed to have given it up “as a matter of law.” For under this section residence is one’s “actual dwelling place in fact” to be determined not by petitioner’s physical presence on a ship for a short voyage nor by the Government’s “intent” to terminate his residence here — an intent “executed” merely by marking a warrant calling for petitioner’s deportation to Yugoslavia “reshipped SS Dubravka.” Since petitioner, in my view, remained a resident of the United States under § 101 notwithstanding his brief voyage, it follows that he has met the continuous residence requirement of § 249 and is entitled to registry.

In Costello v. Immigration and Naturalization Service, 376 U. S., at 130, decided less than two months ago, this Court said that “in the absence of specific legislative history to the contrary, we are unwilling to attribute to Congress a purpose to extend this fiction [the relation-back concept] to the deportation provisions . . . We should similarly be unwilling to attribute to Congress a purpose to deport an alien of good moral character who has been a long-time resident of this country and who is otherwise eligible for the relief afforded by § 249 of the Act, by the fiction that he deported himself by shipping, with Government encouragement, as a seaman on a two- and-a-half-month round-trip voyage to South America during the war. In Rosenberg v. Fleuti, 374 U. S. 449, we refused to construe “entry” so mechanically as to impute to Congress the intent “to exclude aliens long resident in this country after lawful entry who have merely stepped across an international border and returned in ‘about a couple of hours.’ ” Id., at 461. Here, too, we should refuse to define departure so mechanically as to impute to Congress the intent, contrary to the humane purpose of § 249, to permit the deportation of an alien resident in this country almost a quarter of a century.

       The exact date of the petitioner’s entry is uncertain. Both parties state in their briefs that he entered on January 21, 1940, which is the date given by the petitioner at a deportation hearing in 1952. In the warrant for the petitioner’s deportation which issued in 1942, the date of entry is given as January 25, 1940, which is the date of entry established at a deportation hearing in 1942.

       In his brief, the petitioner states that he came ashore “by reason of the permission granted him prior to sailing,” Brief p. 4, presumably a reference to the “Ninth Proviso clause” contained in the 1942 order of deportation, which is discussed hereafter. In the hearing which preceded the later deportation order of 1952, the petitioner testified that he came ashore pursuant to special permission granted him because he was ill, which was the finding of the hearing officer. Which of these grounds was the actual basis for admission is, for reasons appearing later, immaterial to the disposition of this case.

       The 1958 amendment of § 249, inter alia, removed the requirement that an alien applying for relief under that section not be “subject to deportation.” Compare 66 Stat. 219 with 72 Stat. 546. The petitioner argues that this change indicates a legislative judgment favorable to his situation. But the humanitarian motives which may have prompted the 1958 amendment do not reach the present case, which is concerned with the requirement of continuous residence, left untouched by the amendment.

       This enactment was for purposes of excluding a deported alien from subsequent admission and making it a felony for such alien to enter or attempt to enter the United States. Act of March 4, 1929, §1 (a), 45 Stat. 1551, 8 U. S. C. (1940 ed.) § 180 (a). It has been carried forward in the current provisions and made applicable to the Immigration and Nationality Act generally. § 101 (g), 66 Stat. 173, 8 U. S. C. §1101 (g).

       There is no foundation for the suggestion that in 1942 there was a special kind of departure called “reshipment” which did not have the effect of executing the outstanding deportation order. The petitioner’s “reshipment” was nothing more or less than his signing on board ship and departing on it. The notation “Reshipped” on the deportation warrant was scrawled in pencil on the back of the warrant. It was made by an unidentified person for an unknown purpose, and appears underneath the endorsement of the warrant’s execution by the Immigration Inspector. (More relevant in this connection is the fact that the name of the ship on which the petitioner departed and the date of his departure appear in the blank for the “steamer and date on which deported” — italics added — on the official “Description of Person Deported.”)
      The petitioner had recently been through a deportation hearing. Just one month before his departure he had been ordered deported. In those circumstances, it can scarcely be maintained that he did not understand his departure to be pursuant to the warrant for his deportation. (Any doubts on this score must assuredly have been cleared up by his detention on board ship on his return.)
      Indeed, discussion of the manner of the petitioner’s departure seems beside the point in view of his concession that his departure executed the warrant for his deportation. (If by his departure he managed to execute the warrant for his deportation but nevertheless remain undeported, he was able to improve his status by leaving the country. The suggestion is untenable.)

       “. . . [T]he Commissioner General of Immigration with the approval of the Secretary of Labor shall issue rules and prescribe conditions, including exaction of such bonds as may be necessary, to control and regulate the admission and return of otherwise inadmissible aliens applying for temporary admission.” Act of February 5, 1917, §3, 39 Stat. 875, 878, 8 U. S. C. (1940 ed.) § 136(q). Similar provisions are included in the current statute. Immigration and Nationality Act, § 212 (d)(3), 66 Stat. 187, 8 U. S. C. §1182 (d)(3).

       Act of March 4, 1929, § 1 (a), 45 Stat. 1551, 8 U. S. C. (1940 ed.) § 180 (a), carried forward in the Immigration and Nationality Act, §§ 212 (a) (17), 276, 66 Stat. 183, 229, 8 U. S. C. §§ 1182 (a) (17), 1326.

       Act of March 4, 1929, § 1 (c), 45 Stat. 1551, 8 U. S. C. (1940 ed.) § 180 (c). Compare the related provisions of the Immigration and Nationality Act, § 252 (a), 66 Stat. 220, 8 U. S. C. § 1282 (a).

       Immigration and Nationality Act, § 276, 66 Stat. 229, 8 U. S. C. § 1326.

       The Court's statement that the notation “Reshipped” was “made by an unidentified person for an unknown purpose . . . ," is difficult to understand. Ante, at 564, n. 5. The notation appears on the warrant which has continuously been in the exclusive possession of the Government. That this notation could have been and was made only by an immigration official is confirmed by the telegram of October 21, 1942.

       Section 101 (a) (33) provides that:
      “The term 'residence’ means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent. Residence shall be considered continuous for the purposes of sections 1482 and 1484 of this title where there is a continuity of stay but not necessarily an uninterrupted physical presence in a foreign state or states or outside the United States.” 66 Stat. 170, 8 U. S. C. § 1101 (a) (33).

       Petitioner never concealed himself from the authorities, either before or after his voyage in 1942. On the contrary, he registered both as an alien and for selective service and was at all times willing, as he testified under oath at the immigration hearing, to “fight for the United States Government.” He has a brother and other relatives in the United States; and his wife and children, to whom he regularly sends $200 a month in Yugoslavia, have an application pending for a visa to the United States and are awaiting regularization of his status to join him here.

       The Government correctly argues that such permission did not constitute “an invitation” to return. This fact does, however, confirm what is clear from the surrounding circumstances, that the Government was fully aware that he would be returning to the United States.

       While on the ship, petitioner maintained all his ties in the United States, including his bank account and his union membership.

       In support of its contention that “a seaman can have his residence aboard a ship,” the Government cites a number of statutes, such as the Act of May 9, 1918, 40 Stat. 542, giving residence credit to a seaman who serves for “three years on board of merchant or fishing vessels of the United States . . . .” No one questions the power of Congress to grant such credit. The Government points to no statutes or cases, however, which indicate that a single limited round trip voyage by a seaman converts the ship into “his principal, actual dwelling place in fact.”