author: Mr. Justice Black Mr. Justice Harlan, Me. Chief Justice Burger,

text:
    HADLEY et al. v. JUNIOR COLLEGE DISTRICT OF METROPOLITAN KANSAS CITY et al.
    No. 37.
    November 10, 1969
    Decided February 25, 1970

      Irving Achtenberg argued the cause and filed a brief for appellants.

      William J. Burrell argued the cause for appellees Junior College District of Metropolitan Kansas City et al. With him on the brief were Clarence H. Dicus and Heywood H. Davis. Louis C. DeFeo, Jr., Assistant Attorney General of Missouri, argued the cause for ap-pellee the Attorney General of Missouri. With him on the brief was John C. Danforth, Attorney General, pro se.

      Solicitor General Griswold, Assistant Attorney General Leonard, and Francis X. Beytagh, Jr., filed a brief for the United States as amicus curiae urging reversal.

      Louis J. Lefkowitz, Attorney General of New York, pro se, Samuel A. Hirshowitz, First Assistant Attorney General, and Daniel M. Cohen, Assistant Attorney General, filed a brief for the Attorney General of New York as amicus curiae urging affirmance.
   Mr. Justice Black

delivered the delivered theopinion of the Court. This case involves the extent to which the Fourteenth Amendment and the “one man, one vote” principle apply in the election of local governmental officials. Appellants are residents and taxpayers of the Kansas City School District, one of eight separate school' districts that have combined to form the Junior College District of Metropolitan Kansas City. Under Missouri law separate school districts may vote by referendum to establish a consolidated junior college district and elect six trustees to conduct and manage the necessary affairs of that district. The state law also provides that these trustees shall be apportioned among the separate school districts on the basis of “school enumeration,” defined as the number of persons between the ages of six and 20 years, who reside in each district. In the case of the Kansas City School District this apportionment plan results in the election of three trustees, or 50% of the total number, from that district. Since that district contains approximately 60% of the total school enumeration in the junior college district, appellants brought suit claiming that their right to vote for trustees was being unconstitutionally diluted in violation of the, Equal Protection Clause of the Fourteenth Amendment. The Missouri Supreme Court upheld the trial court’s dismissal of the suit, stating that the “one man, one vote” principle was not applicable in this case. 432 S. W. 2d 328 (1968). We noted probable jurisdiction of the appeal, 393 U. S. 1115 (1969), and for the reasons set forth below we reverse and hold that the Fourteenth Amendment requires that the trustees of this junior college district be apportioned in a manner that does not deprive any voter of his right to have his own vote given as much weight, as far as is practicable, as that of any other voter in the junior college district.

In Wesberry v. Sanders, 376 U. S. 1 (1964), we held that the Constitution requires that “as nearly as is practicable one man’s vote in a congressional election is to be worth as much as another’s.” Id., at 7-8. Because of this requirement we struck down a Georgia statute which allowed glaring discrepancies among the populations in that State’s congressional districts. In Reynolds v. Sims, 377 U. S. 533 (1964), and the companion cases, we considered state laws that had apportioned state legislatures in a way that again showed glaring discrepancies in the number of people who lived in different legislative districts. In an elaborate opinion in Reynolds we called attention to prior cases indicating that a qualified voter has a constitutional right to vote in elections without having his vote wrongfully denied, debased, or diluted. Ex parte Siebold, 100 U. S. 371 (1880); Ex parte Yarbrough, 110 U. S. 651 (1884); United States v. Mosley, 238 U. S. 383 (1915); Guinn v. United States, 238 U. S. 347 (1915); Lane v. Wilson, 307 U. S. 268 (1939); United States v. Classic, 313 U. S. 299 (1941). Applying the basic principle of Wesberry, we therefore held that the various state apportionment schemes denied some voters the right guaranteed by the Fourteenth Amendment to have their votes given the same weight as that of other voters. Finally, in Avery v. Midland County, 390 U. S. 474 (1968), we applied this same principle to the election of Texas county commissioners, holding that a qualified voter in a local election also has constitutional right to have his vote counted with substantially the same weight as that of any other voter a case where the elected officials exercised “general governmental powers over the entire geographic area served by the body.” Id., at 485.

case argue that the junior college trustees exercised general governmental powers over the entire district and that under Avery the State was thus required to apportion the trustees according to popula-on an equal basis, as far as practicable. Appellants that since the trustees can levy and collect taxes, bonds with certain restrictions, hire and fire teachers, contracts, collect fees, supervise and discipline stu-pass on petitions to annex school districts, acquire property by condemnation, and in general manage the operations of the junior college, their powers are equiv-for apportionment purposes, to those exercised by county commissioners in Avery. We feel that these while not fully as broad as those of the Midland Commissioners, certainly show that the trustees perforin important governmental functions within the districts, and we think these powers are general enough and have sufficient impact throughout the district to justify the conclusion that the principle which we applied in Avery should also be applied here.

This Court has consistently held in a long series of cases, that in situations involving elections, the States are required to insure that each person’s vote counts as much, insofar as it is practicable, as any other person’s. We have applied this principle in congressional elections, state legislative elections, and local elections. The consistent theme of those decisions is that the right to vote in an election is protected by the United States Constitution against dilution or debasement. While the particular offices involved in these cases have varied, in each case a constant factor is the decision of the government to have citizens participate individually by ballot in the selection of certain people who carry out governmental functions. Thus in the case now before us, while the office of junior college trustee differs in certain respects from those offices considered in prior cases, it is exactly the same in the one crucial factor — these officials are elected by popular vote.

I When a court is asked to decide whether a State is ¡required by the Constitution to give each qualified voter I the same power in an election open to all, there is no dis-I cernible, valid reason why constitutional distinctions I should be drawn on the basis of the purpose of the elec-one person’s vote is given less weight through ”j unequal apportionment, his right to equal voting partid- j pation is impaired just as much when he votes for a school | board member as when he votes for a state legislator, f While there are differences in the powers of different f officials, the crucial consideration is the right of each I qualified voter to participate on an equal footing in the j election process. It should be remembered that in cases j like this one we are asked by voters to insure that they | are given equal treatment, and from their perspective the I harm from unequal treatment is the same in any election, | regardless of the officials selected. *4

a election were to be the determining factor in deciding whether voters are entitled equal voting power, courts would be faced with the difficult job of distinguishing between various elections. cannot readily.perceive judicially manageable stand-to aid in such a task. It might be suggested that apportionment is required only in “important” elections, but good judgment and common sense tell that what might be a vital election to one voter well be a routine one to another. In some in-the election of a local sheriff may be far more important than the election of a United States Senator. there is any way of determining the importance of a particular governmental official, we think the of the State to select that official by popular is a strong enough indication that the choice is an one. This is so because in our country pop-election has traditionally been the method followed government by the people is most desired.

we distinguish for appor-purposes between elections for “legislative” and those for “administrative” officers. Such suggestion would leave courts with an equally unman-principle since be classified in the neat categories favored by texts,” Avery, supra, at 482, and it must also be rejected. We therefore hold today that as a general whenever a state or local government decides to persons by popular election to perform governmental functions, the Equal Protection Clause of the Fourteenth Amendment requires that each qualified must be given an equal opportunity to participate that election, and when members of an elected are chosen from separate districts, each district must be established on a basis that will insure, far as is practicable, that equal numbers of voters can vote for proportionally equal numbers of officials. It is course possible that there might be some case in which State elects certain functionaries whose duties are so removed from normal governmental activities and disproportionately affect different groups that a popu-election in compliance with Reynolds, supra, might not be required, but certainly we see nothing in the present case that indicates that the activities of these trustees fit in that category. Education has traditionally been a vital governmental function, and these trustees, whose election the State has opened to all qualified voters, are governmental officials in every relevant sense of that term.

In this particular case the man, one ciple is to some extent already reflected in the Missouri statute. That act provides that if no one or more of the component school districts has 33%% or more of the total enumeration of the junior college district, then all six trustees are elected at large. If, however, one or more districts has between 33%% and 50% of the total enumeration, each such district elects two trustees and the rest are elected at large from the remaining districts. Similarly, if one district has between 50% and 66%% of the enumeration it elects three trustees, and if one district has more than 66%% it elects four trustees. This scheme thus allocates increasingly more trustees to large districts as they represent an increasing proportion of the total enumeration.

statutory scheme reflects to some extent a principle of equal voting power, it does so in a way that does not comport with constitutional requirements. This is so because the Act necessarily results in a systematic discrimination against voters in the more populous school districts. This discrimination occurs because whenever a large district’s percentage of the total enumeration falls within a certain percentage range it is always allocated the number of trustees corresponding the bottom of that range. Unless a particular large district has exactly 33%%■, 50%, or 66%% of the total enumeration it will always have proportionally fewer trustees than the small districts. As has been pointed out, in the case of the Kansas City School District approximately 60% of the total enumeration entitles that district to only 50% of the trustees. Thus while voters large school districts may frequently have less effective voting power than residents of small districts, they can never have more. Such built-in discrimination against voters in large districts cannot be sustained as a sufficient compliance with the constitutional mandate that each person’s vote count as much as another’s, as far as practicable. Consequently Missouri cannot allocate the college trustees according to the statutory formula employed in this case. We would be faced with a dif-question if the deviation presented in this case resulted from a plan that not contain a built-in bias in favor of small districts, rather from the inherent mathematical complications equally apportioning a small number of trustees among a limited number of component districts. We said before that mathematical exactitude is not required, Wesberry, supra, at 18, Reynolds, supra, at 577, a plan that does not automatically discriminate in favor of certain districts is.

In holding that the guarantee each voter applies in all elections of governmental officials, we do not feel that the States will be inhibited finding ways to insure that legitimate political goals representation are achieved. We have previously up-against constitutional challenge an election scheme required that candidates be residents of certain districts that did not contain equal numbers of people. Dusch v. Davis, 387 U. S. 112 (1967). Since all the officials in that case were elected at large, the right of voter was given equal treatment. We have also that where a State chooses to select members of an official body by appointment rather than election, and that choice does not itself offend the Constitution, the fact that each official does not “represent” the same number of people does not deny those people equal protection of the laws. Sailors v. Board of Education, 387 U. S. 105 (1967); cf. Fortson v. Morris, 385 U. S. 231 (1966). And a State may, in certain cases, limit the a group or class of people. As we said before, “[vjiable local governments may need many innovations, numerous combinations of old and new devices, great flexibility in municipal arrangements to meet changing urban conditions. We see nothing in the Constitution to prevent experimentation.” Sailors, supra, at 110-111. But once a State has decided use the process of popular election and “once the class voters is chosen and their qualifications specified, we see no constitutional way by which equality of voting power may be evaded.” Gray v. Sanders, 372 U. S. 368, 381 (1963).

judgment below reversed and the case is remanded to the Missouri Supreme Court for proceedings not inconsistent with opinion.

and remanded.

Mr. Justice Harlan,

with whom The Chief Justice and Mr. Justice Stewart join,

dissenting.

demonstrates, to a degree that no case has, the pervasiveness of the federal judicial intrusion into state electoral processes that was unleashed the “one man, one vote” rule of Reynolds v. Sims, 377 U. S. 533 (1964).

for the apportionment state legislatures, thereby denying States the right take into account in the structuring of their legisla-any historical, geographical, economic, or social considerations, or any of the many other practical and factors that have always been recognized as play-a legitimate part in the practice of politics.

Four years later, in Averyv. Midland County, 390 S. 474 (1968), the “one man, one vote” rule was to many kinds of local governmental units, affecting to an unknown extent the organi-integrity of some the country, and constricting the States in the use the electoral process in the establishment of new ones.

And applicable to the various boards of trustees of Mis-junior college system, and the case forebodes, if it does not decide, that the rule is to be applied every elective public body, no matter what its nature.

While I my continued disagreement with them as constitutional holdings (see my dissenting opinions in Reynolds, 377 U. S., at 589, and in Avery, 390 U. S., at 486) — I not think that either of these cases, or any other in this justifies the present decision. I therefore dissent, taking off from Avery in what is about to be said.

I

In Avery the Court acknowledged that "the states' varied, pragmatic approach in establishing governments” has produced “a staggering number” of local governmental units. The Court noted that, “while special-purpose organizations abound . . . , virtually every American lives within what he and his neighbors regard as a unit of local government with general responsibility and power for local affairs.” The Midland County Commissioners Court, the body whose composition was challenged in Avery, was found to possess a broad range of powers that made it “representative of most of the general governing bodies of American cities, counties, towns, and villages,” and the Court was at pains to limit its holding to such general bodies. 390 U. S., at 482-485. Today the Court discards that limitation, stating that “there is no discernible, valid reason why constitutional distinctions should be drawn on the basis of the purpose of the election.” Ante, at 54-55. I believe, to the contrary, that the need to preserve flexibility in the design of local serve functions and that must meet particular local conditions, furnishes a powerful reason to refuse to extend the Avery ruling beyond its original limits. If local units having general governmental powers are to be considered, like state legislatures, as having a substantial identity of function that justifies imposing on them a uniformity of elective structure, it is clear that specialized local entities are characterized by precisely the opposite of such identity. From irrigation districts to air pollution control agencies to school districts, such units vary in the magnitude of their impact upon various constituencies and in the manner in which the benefits and burdens of their operations interact with other elements of the local political and economic picture. Today’s ruling will forbid these agencies from adopting electoral mechanisms that take these variations into account.

an arbitrary limitation on the ways in which local agencies may be constituted. The Court concedes that the States may use means other than apportionment “to insure that legitimate political goals of representation are achieved.” For example, officials elected at large may be required to be residents of particular areas that do not contain equal numbers of people, Dusch v. Davis, 387 U. S. 112 (1967); right to vote may be denied outright to persons whose interest in the function performed by the agency is nonexistent or slight, cf. Kramer v. Union Free School District, 395 U. S. 621 (1969); Cipriano v. City of Houma, U. S. 701 (1969); or the State may in many instances abandon the elective process altogether and allow members of an official body to be appointed, without any for the equal-population principle, Sailors v. Board Education, 387 U. S. 105 (1967). Since the Court recognizes the States’ need for flexibility in structuring units, I am unable to see any basis for its selectively denying to them one of the means flexibility. If, as the Court speculates, other means will as effective as apportionment in the adaptation local agencies to meet specific needs, presumably those means will also enable the States just as effectively accomplish whatever evils the Court thinks it is preventing by today’s decision. The Court has not shown under the supervision of state legislatures that are apportioned according to Reynolds, flexible methods of apportionment of local official bodies carry any greater danger of abuse than these other means of achieving the desirable goal of specialization. The Court’s imposition this arbitrary limitation on the States can be justified only in the name of mathematical nicety.

I do not believe that, even compelled by the absence of “judicially manageable standards” for the “difficult job of distinguishing between various elections.” Ante, at 55. Before today, the Court's rule was that “one man, one vote” applied only local bodies having “general governmental powers over the entire geographic area served by the body.” 390 U. S., at 485. The Court in Avery professed no temerity about concluding that the Midland County Commissioners Court was such a body. The Court’s mere recitation of the powers of that entity, ante, at 53-54, n. 6, suffices to establish that conclusion. At the same time, it cannot be argued seriously that the Junior College District of Metropolitan Kansas City is the general governing body for the people of its area. The mere fact that the trustees can, with restrictions, levy taxes, issue bonds, and condemn property for school purposes does not detract from the crucial consideration that the sole purpose for which the district exists is the operation of a junior college. If the Court adhered to the Avery line, marginal cases would of course arise in which the courts would face difficulty in determining whether a particular governmental powers, but such a determination would be no different in kind from many other matters of degree upon which courts must continually pass. The importance of ensuring flexibility in the organization of specialized units of government, and the uncertainty whether the rule announced today will further any important countervailing interest, convince me that the Court should not proceed further into the political thicket than it has already gone in Avery.

II

case afford a clear indication of the extent to which reasonable state objectives are to be sacrificed on the altar of numerical equality. We are not faced with an apportionment scheme that is a historical relic, with no present-day justification, or one that reflects the stranglehold of a particular group that, having once attained power, blindly resists a redistribution. The structure of the Junior College District of Metropolitan Kansas City is based upon a state statute enacted 1961. Prior to that date, the individual school boards the power to create their own junior colleges, as they do, but there was apparently no authorization for cooperation among districts. The 1961 statute was enacted out of concern on the part of the legislature that Missouri’s public educational facilities were not expand-at a satisfactory rate, see Three Rivers Junior College District v. Statler, 421 S. W. 2d 235, 237 (Mo. 1967). The provisions of the statute evidence a legislative determination of the most effective means to encourage expansion through cooperation between districts.

The statutory provision for election of the six-man board of trustees, summarized by the Court, reflects a careful balancing of the desirability of population-based representation against the practical problems involved in the creation of new educational units. The statute does not by its own force create any junior college districts; this is left to the initiative of the residents of particular areas who are interested in providing public junior-college education for their children. In recognition of the fact that individual school districts may lack the funds or the population to support a junior college of their own, the state legislature has authorized them to make voluntary arrangements with their neighbors for joint formation of a junior college district. If one of the cooperating school districts greatly preponderates in size, it enters into the arrangement knowing that its representation on the board of trustees, while large, will be somewhat smaller than it would be if based strictly on relative school enumeration.

The features of this system are surely sensibly designed to facilitate creation of new educational bodies while guaranteeing to small school districts that they will not be entirely swallowed up by a large partner. The small districts are free to avoid alliance with a highly populated neighbor, if they prefer to link with enough others of their own size to provide a viable base for a junior college. At the same time, a very large school district is probably capable of forming a junior college on its own if it prefers not to consolidate, on the terms set by statute, with smaller neighbors. On the other hand, large and small districts may work together if they find this the most beneficial arrangement. The participation, as here, of seven smaller and one larger school district in the joint formation of a junior college district, represents a pragmatic choice by all concerned from among a number of possible courses of action.

that such a voluntary arrangement effects an unconstitutional “dilution” of the votes of residents of the largest school district. When the Court, in Reynolds, rejected a proposed analogy between state legislatures and the Federal Congress, it relied heavily on the fact that state legislative districts “are merely involuntary political units of the State created by statute to aid in the administration of state government.” 377 U. S., at 548. In contrast, the National Government was created by the union of “a group of formerly independent States.” The system of representation in Congress was “conceived out of compromise and concession” between the larger and smaller States. Id., at 574. The system struck down today shares much of this same character of voluntary compromise. It is true that the analogy would be even closer if the legislature had left the school districts free negotiate their own apportionment terms, rather than imposing a uniform scale; but as I read the Court’s opinion today, it would strike down the apportionment this case even if the terms had resulted from an entirely free agreement among the eight school districts. Insistence upon a simplistic mathematical formula as measure of compliance with the Equal Protection Clause in cases involving the electoral process has resulted in this instance in a total disregard of the salutary-purposes underlying the statutory scheme.

III

Finally, I find particularly perplexing the portion of the Court’s opinion explaining why the apportionment involved in this case does not measure up even under the “one man, one vote” dogma. The Court holds that the voters of the Kansas City School District, who elect 50% of the trustees, are denied equal protection of the laws because that district contains about 60% of the school enumeration. This is so because the statutory formula embodies a “built-in discrimination against voters in large districts.” Ante, at 57. The Court seems to suggest that the same discrepancy among districts might pass muster if it could be shown to be mathematically unavoidable in the apportionment of the small number of trustees among the component districts; but the discrepancy is not permissible where it simply reflects the legislature’s choice of a means to foster a legitimate state goal. This reasoning seems hard to follow and also disturbing on two scores.

First, to apply the rule with such rigor to local governmental units, especially single-function units, is to disregard the characteristics that distinguish such units from state legislatures. As I noted in my dissent in Avery, 390 U. S., at 488-490, there is a much smaller danger of abuse through malapportionment in the case of local units because there exist avenues of political redress that are not similarly available to correct mal-apportionment of state legislatures. Further, as noted above, the greater diversity of functions performed by local governmental units creates a greater need for flexibility in their structure. If these considerations are inadequate to stave off the extension of the Reynolds rule to units of local government, they at least provide a persuasive rationale for applying that rule so as to allow local governments much more play in the joints.

Such an approach is not foreclosed by the previous cases. In Reynolds, 377 U. S., at 577-581, the Court catalogued a number of considerations indicating that “[s]omewhat more flexibility” might be permissible in state legislative apportionment than in congressional districting. Compare Swann v. Adams, 385 U. S. 440 (1967), with Kirkpatrick v. Preisler, 394 U. S. 526 (1969), and Wells v. Rockefeller, 394 U. S. 542 (1969). The need for more flexibility becomes greater as we proceed down the spectrum from the state legislature to the single-purpose local entity.

The disparities of representation in Avery were of an. entirely different order from those here. In that case, each of the four districts elected one commissioner to the Comissioners Court, despite the fact that the population of one district was 67,906, while those of the remaining three were 852, 414, and 828. I think that the Avery rule, born in an extreme case, is being applied here with a rigidity that finds no justification in the considerations that gave it birth. Cf. Wells v. Rockefeller, 394 U. S., at 553 (White, J., dissenting). In this case, the disparity of representation is relatively minor. Even more important, it is not an unexplained unjustified deviation from equality, see Swann v. Adams, 385 U. S., at 445-446, but reflects an enlightened state policy of encouraging individual school districts join together voluntarily to expand the State’s public junior college facilities.

Second, the Court leaves unexplored the premises underlying its conclusion that the apportionment here does not achieve equality, “as far as practicable.” Ante, at 57. Missouri is forbidden to use the statutory formula employed in this case because the percentage categories it creates will, in particular instances, only approximate equality, and because whatever discrepancy exists will always favor residents of the smaller districts. The Court does not suggest how a formula could be devised that would provide a general rule for application to all the various junior college districts but would not share these alleged faults. If a large district falling within a given percentage range were allocated the number of trustees corresponding to the top, rather than the bottom, of the range, that would also produce, on the Court’s theory, a “built-in discrimination” against voters in small districts.

Thus, the result of the Court’s holding may be that Missouri is forbidden to establish any formula of general application for apportionment of trustees, but must instead provide for the improvisation of an individual apportionment scheme for each junior college district after the contours of the district have been settled. But surely a State could reasonably determine that the mechanics of operating such a system would be so unduly burdensome that it would be better to apportion according to a statewide formula. Would not such considerations justify a conclusion that the statewide formula achieves equality “as far as practicable”? While the Court does not discuss the problem, its invalidation of this statutory formula seems to be based on the premise that such practical considerations, like a State’s desire to encourage cooperation among districts, are constitutionally inadequate to justify any divergence from voting “equality.”

not, however, spell out any rationale for concluding that such matters of administrative convenience deserve no weight in determining what is “practicable.” This is especially incongruous in light of the Court’s unexplained conclusion that deference can be be given to legislative determinations that the boards should have a small number of trustees and that the trustees in some instances should represent component school districts. Why does the Court not require that the number of trustees be increased from six, in order to reduce the roughness with which equality is approximated? Would a three-man board be unconstitutionally small? Why is the Court willing to accept inequality that derives from a desire to give representation to component school districts, when similar inequality in state legislative districting could probably not be justified by desire to give representation to counties? Cf. Reynolds Sims, 377 U. S., at 579-581; Swann v. Adams, 385 U. S., at 444. If equality cannot be achieved when representation is by component districts, why does the “as far as practicable” standard not require at-large election of trustees? Is there something about these considerations that gives them a status under the Equal Protection Clause that is not possessed by a legislative desire to apportion by a formula of statewide application?

It seems to me that beneath the surface of the Court’s opinion lie unspoken answers to these and other similar questions, questions that I can characterize only as mat-of political judgment. The Court’s adoption of a rigid, mathematical rule turns out not to have saved from having to balance and judge political considerations, concluding that one does merit some weight in apportionment scheme while another does not. The that the courts, rather than the legislatures, now the final arbiters of such matters will continue, I fear, after the present decision to be the inevitable consequence of the shallow approach to the Equal Protection Clause represented by the “one man, one vote” theory. The Court could at least lessen the disruptive impact that approach at the local level by approving this relatively minor divergence from strict equality on the ground that the legislature could reasonably have concluded that it was necessary to accomplish legitimate state interests.

I would affirm the judgment of the Supreme Court of Missouri. What our Court has done today seems to me to run far afield of the values embodied in the scheme of government ordained by the Constitution.

Me. Chief Justice Burger,

dissenting.

I concur fully in the opinion of Mr. Justice Harlan. add this comment to emphasize the subjective quality a doctrine of constitutional law that has as its primary standard “a general rule, [that] whenever a state local government decides to select persons by popular election . . . ,” the Constitution commands that each qualified voter must be given a vote which is equally weighted with the votes cast by all other electors.

The failure to provide guidelines for the Court’s “general rule” is to be applied is exacerbated when the Court implies that the stringent standards of “mathematical exactitude” that are controlling in apportionment of federal congressional districts need not be applied to smaller specialized districts such as the junior college district in this case. This gives added relevance to Mr. Justice Harlan’s observation that “[t]he need for more flexibility becomes greater as we proceed down the spectrum from the state legislature to the single-purpose local entity.” Ante, at 67. Yet the Court has given almost no indication of which non-may or may not legitimately be considered by a legislature in devising a constitutional apportionment scheme for a local, specialized unit of government.

can finally apply these “general rules” but in the interim all other judges must speculate as best they can when and how to apply them. With all deference I suggest the Court’s opinion today fails to give any meaningful guidelines.

       Mo.Rev. Stat. §§ 178.800, 178.820 (Cum. Supp. 1967).

       Mo. Rev. Stat. § 167.011 (Cum. Supp. 1967).

       For the years 1963 through 1967, the actual eenumeration in the City School District varied between 63.55% and 59.49%. 38.

        WMCA, Inc. v. Lomenzo, 377 U. S. 633 (1964); Maryland Committee v. Tawes, 377 U. S. 656 (1964); Davis v. Mann, 377 U. S. 678 (1964); Roman v. Sincock, 377 U. S. 695 (1964); Lucas v. Colorado Gen. Assembly, 377 U. S. 713 (1964).

       Mo. Rev. Stat. §§ 167.161,171.011, 177.031, 177.041, 178.770, 178.850-178.890 (Cum. Supp. 1967).

       The Midland County Commissioners establishedand main-the county jail, appointed numerous county officials, made built roads and bridges, administered the county welfare performed duties in connection with elections, set the county tax rate, issued bonds, adopted the county budget, built and ran hospitals, airports, and libraries, fixed school district boundaries, established a housing authority, and determined the election districts for county commissioners. Avery, supra, at 476-477.

        Wesberry, supra; Reynolds, supra; cases cited n. 4 supra; Avery, supra; Gray v. Sanders, 372 U. S. 368 (1963); Burns v. Richardson, 384 U. S. 73 (1966); Swann v. Adams, 385 U. S. 440 (1967).

       Mo. Rev. Stat. § 178.820 (Cum. Supp. 1967).

       There issome question in this case whether school enumeration figures, rather than actual population figures, can be used as a basis of apportionment. Cf. Burns v. Richardson, 384 U. S. 73, 90-95 (1966). There is no need to time since, even if school enumeration is a permissible basis, the present statute fails to apportion trustees constitutionally.

       The statute case are elected from component districts rather than at large must be residents of the district from which they are elected. Mo. Rev. Stat. § 178.820 (2) (Cum. Supp. 1967).

       Counselthe Court at oral argument that to the passage of this statute, when the law merely author-each school district in the State to establish its own junior there were only seven such junior colleges, with a total enrollment of approximately 5,000 students. Today there are 12 college districts, in which nearly 120 individual school districts participate, with a total enrollment of over 30,000 students.

       At the time this suit was filed, nine junior college districts had formed pursuant to the statutory procedures. Of these, three not contain a component district large enough to bring into the fractional formula; the remaining six did contain such district.


source: Caselaw Access Project

author: Mr. Justice Douglas Mr. Chief Justice Burger, Mr. Justice Black,

license: Public Domain

text:
    COLONNADE CATERING CORP. v. UNITED STATES
    No. 108.
    Argued January 15, 1970
    Decided February 25, 1970

      0. John Rogge argued the cause for petitioner. With him on the briefs was Jerome M. Stember.

      Jerome M. Feit argued the cause for the United States. With him on the brief were Solicitor General Griswold, Assistant Attorney General Wilson, Lawrence G. Wallace, and Charles Ruff.

   Mr. Justice Douglas

delivered the opinion of the Court.

Petitioner, a licensee in New York authorized to serve alcoholic beverages and also the holder.of a federal retail liquor dealer’s occupational tax stamp, 26 U. S. C. § 5121 (a), brought this suit to obtain the return of seized liquor and to suppress it as evidence. The District Court granted the relief. The Court of Appeals reversed. 410 F. 2d 197. The case is here on a petition for writ of certiorari which we granted, 396 U. S. 814, to review the decision in light of Camara v. Municipal Court, 387 U. S. 523, and See v. City of Seattle, 387 U. S. 541.

Petitioner runs a catering agent, a member of the Alcohol and Tobacco Tax Division of the Internal Revenue Service, was a guest at a party on petitioner’s premises and noted a possible violation of the federal excise tax law. When federal agents later visited the place, another party was in progress. They noticed that liquor was being served. Without the manager’s consent, they inspected the cellar. Then they asked the manager to open the locked liquor storeroom. He said that the only person authorized to open that room was one Rozzo, petitioner’s president, who was not on the premises. Later Rozzo arrived and refused to open the storeroom. He asked if the agents had a search warrant and they answered that they did not need one. When Rozzo continued to refuse to unlock the room, an agent broke the lock and entered. Then they removed the bottles of liquor now in controversy which they apparently suspected of being refilled contrary to the command of 26 U. S. C. § 5301 (c).

It is provided in 26 U. S. C. § 5146 (b) and in 26 U. S. C. § 7606 that the Secretary of the Treasury or delegate has broad authority to enter and inspect the premises of retail dealers in liquors. And in case of the refusal of a dealer to permit the inspection, it is provided 26 U. S. C. § 7342:

“Any owner of any building or place, or person having the agency or superintendence of the same, who refuses to admit any officer or employee of the Treasury Department acting under the authority of section 7606 (relating to entry of premises for examination of taxable articles) or refuses to permit him examine such article or articles, shall, for every such refusal, forfeit $500.”

The question is whether the imposition of a fine for refusal to permit entry — with the attendant consequences that violation of inspection laws may have in this closely regulated industry — is under this statutory scheme the exclusive sanction, absent a warrant to break and enter.

In Frank v. Maryland, 359 U. S. 360, 366-367, a case involving an inspection under a municipal code, we said:

“[The] inspector has no power to force entry and did not attempt it. A fine is imposed for resistance, but officials are not authorized to break past the unwilling occupant.”

Frank v. Maryland was overruled in Camara v. Municipal Court, supra, insofar as it permitted warrantless searches or inspections under municipal fire, health, and housing codes. The dictum that the provision for a fine on refusal to allow inspection made the use of force improper when there was no warrant was not disturbed ; and the question is whether that dictum contains the controlling principle for this cáse.

The Government, emphasizing that the Fourth Amendment bans only “unreasonable searches and seizures,” relies heavily on the long history of the regulation of the liquor industry during pre-Fourth Amendment days, first in England and later in the American Colonies. It is pointed out, for example, that in 1660 the precursor of modern-day liquor legislation was enacted in England which allowed commissioners to enter, on demand, brewing houses at all times for inspection. Massachusetts had a similar law in 1692. And in 1791, the year in which the Fourth Amendment was ratified, Congress imposed an excise tax on imported distilled spirits and on liquor distilled here, under which law federal officers had broad powers to inspect distilling premises and the premises of the importer without a warrant. From these and later laws and regulations governing the liquor industry, it is argued that Congress has been most solicitous in protecting the revenue against various types of fraud and to that end has repeatedly granted federal agents power to make warrantless searches and seizures of articles under the liquor laws.

The Court recognized the special treatment spection laws of this kind in Boyd v. United States, 116 U. S. 616, 624:

“[I]n the case of excisable or dutiable articles, the government has an interest in them for the payment of the duties thereon, and until such duties paid has a right to keep them under observation, to pursue and drag them from concealment.”

it added:

“The seizure of stolen goods common law; and the seizure of goods forfeited for breach of the revenue laws, or concealed to avoid the duties payable on them, has been authorized by English statutes for at least two centuries past; and the like seizures have been authorized by our own revenue acts from the commencement of the government. The first statute passed by Congress to regulate the collection of duties, the act of July 31, 1789, 1 Stat. 29, 43, contains provisions to this effect. As this act was passed by the same Congress which proposed for adoption the original amendments to the Constitution, it is clear that the members of that body did not regard searches and seizures of this kind as 'unreasonable,’ and they are not embraced within the prohibition of the amendment.” Id., at 623.

We agree that Congress has broad power to such powers of inspection under the liquor laws as it deems necessary to meet the evils at hand. The general rule laid down in See v. City of Seattle, supra, at 545— “that administrative entry, without consent, upon the portions of commercial premises which are not open to the public may only be compelled through prosecution or physical force within the framework of a warrant procedure” — is therefore not applicable here. In See, we reserved decision on the problems of “licensing programs” requiring inspection, saying they can be resolved “on a case-by-case basis under the general Fourth Amendment standard of reasonableness.” Id., at 546.

Where Congress has authorized inspection but made no rules governing the procedure that inspectors must follow, the Fourth Amendment and its various restrictive rules apply. We said in the See case:

“The businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property. The businessman, too, has that right placed in jeopardy if the decision to enter and inspect for violation of regulatory laws can be made and enforced by the inspector in the field without official authority evidenced by a warrant.” Id., at 543.

What was said in See reflects this Nation’s traditions that are strongly opposed to using force without definite authority to break down doors. We deal here with the liquor industry long subject to close supervision and inspection. As respects that industry, and its various branches including retailers, Congress has broad authority to fashion standards of reasonableness for searches and seizures. Under the existing statutes, Congress selected a standard that does not include forcible entries without a warrant. It resolved the issue, not by authorizing forcible, warrantless entries, but by making it an offense for a licensee to refuse admission to the inspector.

Reversed.

Mr. Chief Justice Burger,

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

, dissenting.

I join in the dissenting opinion of Mr. Justice Black; however, since my position goes somewhat beyond his discussion I add my views separately.

I assume we could all agree that the search in question must be held valid, and the contraband discovered subject to seizure and forfeiture, unless (a) it is “unreasonable” under the Constitution or (b) it is prohibited by a statute imposing restraints apart from those in the Constitution. The majority sees no constitutional violation; I agree.

The controlling statutes set out in notes 1 and 2 of the majority opinion affirmatively define the conditions and times when agents may enter premises and inspect. Under 26 U. S. C. § 5146 (b) agents may enter to inspect “any distilled spirits, wines, or beer kept or stored by such dealer on such premises.” The time when this may be done is fixed as “during business hours.” Section 7606 of 26 U. S. C., set forth in note 2 of the majority opinion, provides that agents may enter any building where taxable articles are kept, “so far as it may be necessary for the purpose of examining said articles or objects.”

The government agents needed neither a warrant nor these statutes to secure entry to this place of business since it was as open as any business establishment that seeks to sell goods and services to the public. The agents need to rely on the statutes only to carry out their duty to inspect after accomplishing entry. This was recognized implicitly by Congress in limiting the inspection to “business hours” and daytime. Congress went beyond mere entry; it provided for inspection. Inspection authorization would be meaningless if the agents could not open lockers, cabinets, closets, and storerooms and indeed pry open cases of liquor to see the contents.

Surely Congress was not unaware that purveyors of liquor do not leave their wares or stores or reserve supplies lying casually about; on the contrary they keep supplies under lock in various ways, including lockers, cabinets, closets, or storerooms; this practice is so universal it can be judicially noticed.

Here the agents acted explicitly under statutes containing the language “so far as it may be necessary”; this is simple and clear and for me it is plainly broad enough to permit inspection of all spirits “kept or stored ... on such premises” whether in lockers, cabinets, closets, or storerooms. Congress having prescribed this as a reasonable means of enforcing the inspection necessary to tax collection, I see no basis for any court to say it cannot be done.

That Congress provided an added penalty for those who refuse access for inspection is irrelevant. We can assume this was to encourage licensed purveyors to comply promptly to facilitate inspections. The majority views the $500 fine as the Government’s exclusive remedy for the non-cooperation of the taxpayer. Congress could hardly be so naive as to give to the licensee the option to choose between the risk of a $500 fine against the certain discovery, if he is in violation, of a large store of liquor subject to forfeiture. At current prices $500 would represent four or five cases of spirits. The alternative of securing a warrant touches on the constitutional issues which the majority does not rely on. We should note, of course, that the majority holding eliminates any basis for a forfeiture of the contraband liquor and leaves the Government to another lawsuit to collect a $500 fine.

With deference I submit the majority has needlessly complicated a relatively simple issue of statutory construction with undertones of constitutionally limited searches. The words “so far as it may be necessary” are quite plain and we all agree no issue of constitutional dimensions is presented.

Mr. Justice Black,

with whom The Chief Justice and Me. Justice Stewaet join,

dissenting.

Petitioner brought proceedings under the Federal Rules of Criminal Procedure for the return of liquor seized by federal agents. One of those rules provides that “[a] person aggrieved by an unlawful search and seizure may move the district court ... for the return of the property ... so obtained on the ground that (1) the property was illegally seized without warrant . . . Fed. Rule Crim. Proc. 41 (e). (Emphasis added.) As I read that provision, it requires petitioner to show that the seizure in this case was illegal, either because it violated the Fourth Amendment, or because it was in violation of some law passed by Congress. In my opinion neither requirement has been met and therefore petitioner is not entitled to a return of the seized liquor.

There can be no doubt that places that sell liquor to the public have historically been subjected to strict governmental scrutiny for many centuries both in this country and in England. The Court sets out a little of the history of that regulation in its opinion. I therefore agree that there is nothing unreasonable, as that term is used in the Fourth Amendment, in permitting officers to go into an establishment that provides alcoholic beverages to the public, and upon finding something that indicates a flagrant violation of the law to pursue their examination to see whether a violation is actually occurring. The officers did just that in this case, and I see no reason on earth why any man should hold that conduct unreasonable. This Court certainly should not prevent faithful officers, when they see the law being violated practically before their very eyes, from taking the steps necessary to stop and prove that violation.

The majority, far from finding this search unreasonable and therefore illegal under the Fourth Amendment, holds only that it was not authorized by 26 U. S. C. §§ 5146 (b), 7606 (a), and that therefore the liquor must be returned. While these statutes do not in express terms authorize forcible breaking and entering to seize liquor kept in violation of federal law, it is perfectly clear that they do not in express terms declare such seizure illegal, and in my opinion those provisions impliedly authorize exactly the type of official conduct involved here. I am confident that when Congress said that federal liquor agents could search without a warrant and further provided for fines if the owner refused to permit such a search, it also intended to authorize forcible entry and seizure if that became necessary. I do not think Congress needed to speak any more clearly than it already has. Since I cannot conclude that this search and seizure was illegal under either the Fourth Amendment or any Act of Congress, but was to the contrary carried out pursuant to congressional authorization, I would affirm the judgment below and hold that petitioner was not entitled to a return of the liquor.

       26 U. S. C. § 5146 (b) provides:
      or his delegate may enter during business hours premises (including places of storage) of any dealer for the purpose of inspecting or examining any records or other documents required to be kept by such dealer under this chapter or regulations issued pursuant thereto and any distilled spirits, wines, or beer or stored by such dealer on such premises.”

       26 U. S. C. § 7606 provides:
      “(a) Entry during day.
      “The Secretary or his delegate may enter, in the daytime, any building or place where any articles or objects subject to tax are made, produced, or kept, so far as it may be necessary for the purpose of examining said articles or objects.
      “(b) Entry at night.
      are open Secretary or his delegate may enter them while so open, in the performance of his duties.”

       As defined in 26 U. S. C. § 5122 (a).

       And see United States v. Frisch, 140 F. 2d 660, 662.

       The Fourth Amendment reads as follows:
      “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall be violated, and no Warrants shall issue, but upon probable supported by Oath or affirmation, and particularly describing place to be searched, and the persons or things to be seized.”

      . 23, § 19.

       Act of June 24, 1692, Mass. Acts and Resolves, Vol. 1, 1692-p. 33, c. 5, § 8.

       Act of March 3, 1791, 1 Stat. 199.

       Section 29 of the Act of March 3, 1791, 1 Stat. 206, provided:
      officers of inspection of each survey at all times in the daytime, upon request, to enter into all every the houses, store-houses, ware-houses, buildings and which shall have been [registered] in manner aforesaid, and tasting, gauging or otherwise, to take an account of the quantity, and proofs of the said spirits therein contained; and also to samples thereof, paying for the same the usual price.”

       Set forth ante, at 73 nn. 1,2.

       26 U. S. C. § 7342, ante, at 74.


author: Mr. Justice Douglas

text:
    REETZ, COMMISSIONER OF FISH AND GAME OF ALASKA, et al. v. BOZANICH et al.
    No. 185.
    Argued January 13, 1970
    Decided February 25, 1970

      Charles K. Cranston, Assistant Attorney General of Alaska, argued the cause for appellants. With him on the brief were G. Kent Edwards, Attorney General, and Robert L. Hartig, Assistant Attorney General.

      Robert Boochever argued the cause for appellees. With him on the brief was Seth Warner Morrison III.

   Mr. Justice Douglas

delivered the opinion of the Court.

This is an appeal from the judgment of a three-judge District Court, convened under 28 U. S. C. §§ 2281, 2284, declaring certain fishing laws of Alaska and regulations under them unconstitutional and enjoining their enforcement. 297 F. Supp. 300. We noted probable jurisdiction. 396 U. S. 811.

The laws in question, passed in 1968, concern salmon net gear licenses for commercial fishing, not licenses for other types of salmon fishing. They are challenged because they limit licensees to a defined group of persons. The Act in material part provides:

“Persons eligible for gear licenses, (a) Except in cases of extreme hardship as defined by the Board of Fish and Game, a salmon net gear license for a specific salmon registration area may be issued only to a person who
“(1) has previously held a salmon net gear license for that specific salmon registration area; or
“(2) has, for any three years, held a commercial fishing license and while so licensed actively engaged in commercial fishing in that specific area.”

The regulations provide that except in cases of “extreme hardship ... a salmon net gear license for a specific salmon registration area may be issued only to a person who:

“(A) has held in 1965 or subsequent years a salmon net gear license for that specific salmon registration area; or
“(B) has, for any three years -since January 1, 1960, held a commercial fishing license and while so licensed actively engaged in commercial fishing in that specific aireaN

Appellees are nonresidents who applied for commercial salmon net gear licenses. They apparently are experienced net gear salmon fishermen but they cannot qualify for a salmon net gear license to fish in any of the 12 regions or areas described in the Act and the regulations.

Appellees filed a motion for summary judgment on the grounds that the Act and regulations deprived them of their rights under the Equal Protection Clause of the Fourteenth Amendment and also their rights under the Alaska Constitution. That constitution provides in Art. VIII, § 3:

“Wherever, occurring in their natural state, fish, wildlife, and 'waters are reserved to the -people- for common use.”

And it provides in Art. VIII, § 15:

“No exclusive right or special privilege of fishery shall be created or authorized in the natural waters of the State.”

Appellants filed a motion to dismiss or alternatively to stay the proceedings in the District Court pending the determination of the Alaska constitutional question by an Alaska court.

Appellants’ motion to dismiss or to stay was denied. Appellees’ motion for summary judgment was granted, the three-judge District Court holding that the Act and regulations in question were unconstitutional both under the Equal Protection Clause of the Fourteenth Amendment and under the Constitution of Alaska. 297 F. Supp., at 304-307.

This case is virtually on all fours with City of Meridian v. Southern Bell Tel. & Tel. Co., 358 U. S. 639, where a single district judge in construing a Mississippi statute held that it violated both the Federal and the State Constitutions. The Court of Appeals affirmed and we vacated its judgment and remanded to the District Court with directions to hold the case while the parties repaired to a state tribunal “for an authoritative declaration of applicable state law.” Id., at 640.

We said:

“Proper exercise of federal jurisdiction requires that controversies involving unsettled questions of state law be decided in the state tribunals preliminary to a federal court’s consideration of the underlying federal constitutional questions. . . . That is especially desirable where the questions of state law are enmeshed with federal questions. . . . Here, the state law problems are delicate ones, the resolution of which is not without substantial difficulty — certainly for a federal court. ... In such a case, when the state court’s interpretation of the statute or evaluation of its validity under the state constitution may obviate any need to consider its validity under the Federal Constitution, the federal court should hold its hand, lest it render a constitutional decision unnecessarily.” Id., at 640-641.

We are advised that the provisions of the Alaska Constitution at issue have never been interpreted by an Alaska court. The District Court, feeling sure of its grounds on the merits, held, however, that this was not a proper case for abstention, saying that “if the question had been presented to an Alaska court, it would have shared our conviction that the challenged gear licensing scheme is not supportable.” 297 F. Supp., at 304. The three-judge panel was a distinguished one, two being former Alaska lawyers. And they felt that prompt decision was necessary to avoid the “grave and irreparable” injury to the “economic livelihood” of the appellees which would result, if they could not engage in their occupation “during this year’s forthcoming fishing season.” Ibid.

It is, of course, true that abstention is not necessary whenever a federal court is faced with a question of local law, the classic case being Meredith v. Winter Haven, 320 U. S. 228, where federal jurisdiction was based on diversity only. Abstention certainly involves duplication of effort and expense and an attendant delay. See England v. Louisiana State Board, 375 U. S. 411. That is why we have said that this judicially created rule which stems from Railroad Comm’n v. Pullman Co., 312 U. S. 496, should be applied only where “the issue of state law is uncertain.” Harman v. Forssenius, 380 U. S. 528, 534. Moreover, we said in Zwickler v. Koota, 389 U. S. 241, 248, that abstention was applicable “only in narrowly limited 'special circumstances,’ ” citing Prosper v. Clark, 337 U. S. 472, 492. In Zwickler, a state statute was attacked on the ground that on its face it was repugnant to the First Amendment; and it was conceded that state court construction could not render unnecessary a decision of the First Amendment question. 389 U. S., at 250. A state court decision here, however, could conceivably avoid any decision under the Fourteenth Amendment and would avoid any possible irritant in the federal-state relationship.

The Pullman doctrine was based on “the avoidance of needless friction” between federal pronouncements and state policies. 312 U. S., at 500. The instant case is the classic case in that tradition, for here the nub of the whole controversy may be the state constitution. The constitutional provisions relate to fish resources, an asset unique in its abundance in Alaska. The statute and regulations relate to that same unique resource, the management of which is a matter of great state concern. We appreciate why the District Court felt concern over the effect of further delay on these plaintiffs, the appellees here; but we have concluded that the first judicial application of these constitutional provisions should properly be by an Alaska court.

We think the federal court should have stayed its hand while the parties repaired to the state courts for a resolution of their state constitutional questions. We accordingly vacate the judgment of the District Court and remand the case for proceedings consistent with this opinion.

It is so ordered.

       Alaska Stat. § 16.05.536 (1968). Subd. (b) of that section specifies the data to be supplied in applications for a gear license.
      Section 16.05.540 provides that the licensee shall “personally operate or assist in the operation of the licensed fishing gear”; that he shall “personally own or lease the licensed fishing gear”; and that the license is “transferable.”

       Alaska Commercial Fishing Regulations § 102.09 (a) (1969).

       As defined in the regulations, id., § 102.09 (a) (2).

       While the original complaint challenged the 1968 regulations, it was amended to challenge the 1968 Act and the 1969 regulations under it, which regulated the 1969 fishing season.


author: Per Curiam.

text:
    ARKANSAS v. TENNESSEE
    No. 33,
    Orig.
    Argued January 19, 1970
    Decided February 25, 1970

      Don Langston, Assistant Attorney General of Arkansas, argued the cause for plaintiff on exceptions to the Report of the Special Master. With him on the brief was Joe E. Purcell, Attorney General.

      Heard H. Sutton argued the cause for defendant in support of the Report of the Special Master. With him on the brief were David Pack, Attorney General of Tennessee, C. Hayes Cooney, Assistant Attorney General, Harry W. Laughlin, James L. Oarthright, Jr., and J. Martin Regan.

   Per Curiam.

This original action was commenced on October 13, 1967, by the State of Arkansas to settle a boundary dispute with the State of Tennessee. The disputed area extends six miles laterally along the west (Arkansas side) bank of the Mississippi River and encompasses some five thousand acres. This Court's jurisdiction arises under Art. Ill, § 2, of the Constitution of the United States. On January 15, 1968, we appointed, 389 U. S. 1026, Hon. Gunnar H. Nordbye, Senior United States Judge of the District of Minnesota, as Special Master to determine the state line in the disputed area known as Cow Island Bend in the Mississippi River located between Crittenden County, Arkansas, and Shelby County, Tennessee. After conducting an evi-dentiary hearing and viewing the area, the Master filed his Report with this Court recommending that all of the disputed area be declared part of the State of Tennessee. We affirm the Master’s Report.

The parties agree that the state line is the thalweg, that is, the steamboat channel of the Mississippi River as it flows west and southward between these States. The Master heard evidence and was presented exhibits and maps which showed that the migration of the Mississippi River northward and west continued until about 1912. At this time an avulsion occurred leaving Tennessee lands on the west or Arkansas side of the new or avulsive river channel. The Master found that thereafter, because of the avulsion, the water in the thalweg became stagnant and erosion and accretion no longer occurred. At this time the boundary between Arkansas and Tennessee became fixed in the middle of the old abandoned channel.

This is a classic example of the situation referred to in an earlier case between these States, Arkansas v. Tennessee, 246 U. S. 158, 173, where we said,

"It is settled beyond the possibility of dispute that where running streams are the boundaries between States, the same rule applies as between private proprietors, namely, that when the bed and channel are changed by the natural and gradual processes known as erosion and accretion, the boundary follows the varying course of the stream; while if the stream from any cause, natural or artificial, suddenly leaves its old bed and forms a new one, by the process known as an avulsion, the resulting change of channel works no change of boundary, which remains in the middle of the old channel, although no water may be flowing in it, and irrespective of subsequent changes in the new channel.”

And, again, id., at 175,

“An avulsion has this effect, whether it results in the drying up of the old channel or not. So long as that channel remains a running stream, the boundary marked by it is still subject to be changed by erosion and accretion; but when the water becomes stagnant, the effect of these processes is at an end; the boundary then becomes fixed in the middle of the channel as we have defined it, and the gradual filling up of the bed that ensues is not to be treated as an accretion to the shores but as an ultimate effect of the avulsion.”

The exceptions of the State of Arkansas are overruled and the Report of the Special Master is adopted.

It is ordered that the Hon. Gunnar H. Nordbye be, and he is hereby, appointed as Commissioner in this case with power to engage and supervise a competent surveyor, or surveyors, to survey the boundary line as recommended in the Master’s Report. The boundary line determined by such survey shall be submitted to the Court by the Commissioner and, if approved, shall be the boundary line between the two States.

The costs of this proceeding shall be divided equally between the parties.


text:
    ARKANSAS v. TENNESSEE
    No. 33,
    Orig.
    Decided February 25, 1970
    Decree entered February 25, 1970
    Opinion reported: Ante, p. 88.
   DECREE

1. It is ordered, adjudged, and decreed that the boundary line between the States of Arkansas and Tennessee in the area in controversy shall be fixed in the middle of the old abandoned Cow Island Bendway Channel as partially reflected in the 1953 survey of one R. L. Cooper (Defendant’s Exhibit 42, attached to the decree in Brown v. Brakensiek, in the Chancery Court of Shelby County, Tennessee), said abandoned channel extending from its upper or up-river end to the lower or down-river end of Ike Chute as far as that survey goes, thence downstream in a southerly direction passing down the middle of a water drain or creek now running between the lower end of Ike Chute and the upper end of 96 Chute, thence continuing downstream in a southerly direction down the middle of 96 Chute and coming out of 96 Chute on a continuing straight line to the point where it joins the present navigation channel of the Mississippi River, all as indicated by a broken line marked “State Line” on the annexed reduced copy of the 1965 aerial photograph of the area in controversy, Joint Exhibit A, marked Appendix A-I, and also as reflected by a broken line marked “State Line” on a reduced copy of Defendant’s Exhibit 39, the 1937 map of the United States Engineers and hereto annexed as Appendix A-II.

2. It is ordered that the Hon. Gunnar H. Nordbye be, and he is hereby, appointed Commissioner in this case with power to engage and supervise a competent surveyor, or surveyors, to survey the boundary line as provided in this decree. The boundary line determined by such survey shall be submitted to the Court by the Commissioner and, if approved, shall be the boundary line between the two States.

3. The costs of this proceeding shall be divided equally between the parties.

[Appendixes A-I and A-II follow this page.]


text:
    HALL v. BAUM, CHAIRMAN OF STATE DEMOCRATIC EXECUTIVE COMMITTEE OF TEXAS
    No. 1218.
    Decided February 27, 1970

      William H. Allen, John Vanderstar, John L. Hill, Henry D. Akin, Jr., and Mark Martin for appellant.
   Per Curiam.

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


text:
    UNITED STATES et al. v. GIFFORD-HILL-AMERICAN, INC., et al.
    No. 515.
    Decided February 27, 1970

      Solicitor General Griswold and Assistant Attorney General McLaren for the United States et al.

      Stanley E. Neely for Gifford-Hill-American, Inc., and Julian 0. von Kalinowski for United Concrete Pipe Corp., respondents.
   Per Curiam.

Upon consideration of the suggestion of mootness filed by the Solicitor General, and upon an examination of the entire record, the judgment of the United States Court of Appeals for the Fifth Circuit is vacated and the case is remanded to that court with instructions to dismiss the mandamus proceedings as moot.


text:
    SHAFFER v. BRIDGES
    No. 535,
    Misc.
    Decided February 27, 1970

      James Robertson and Lawrence A. Aschenbrenner for appellant.

      A. F. Summer, Attorney General of Mississippi, and Will S. Wells, Assistant Attorney General, for appellee.
   Per Curiam.

The motion of the appellant for leave to proceed in forma pauperis is granted. The motion to dismiss is granted and the case is dismissed as moot.


text:
    MATTHEWS et al. v. LITTLE, CITY CLERK OF THE CITY OF ATLANTA
    No. 1225,
    Misc.
    Decided February 27, 1970

      Frederic S. Le Clercq for appellants.

      Henry L. Bowden and John E. Dougherty for appellee.
   Per Curiam.

The motion for leave to proceed in forma pauperis is granted. The motion to dismiss is also granted and the appeal is dismissed as moot.


text:
    LUJAN v. CALIFORNIA
    No. 200,
    Misc.
    Decided February 27, 1970

      Thomas C. Lynch, Attorney General of California, Albert W. Harris, Jr., Assistant Attorney General, and Michael J. Phelan, Deputy Attorney General, for appellee.
   Per Curiam.

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


text:
    DURHAM et ux. v. INDEPENDENCE HOMES, INC.
    No. 1062.
    Decided February 27, 1970

      Thomas B. McNeill for appellants.

      Burton Y. Weitzenjeld and John F. McClure for appellee.
   Per Curiam.

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


text:
    PARKER v. UNITED STATES
    No. 992,
    Misc.
    Decided February 27, 1970

      Walter L. Gerash for petitioner.

      Solicitor General Griswold, Assistant Attorney General Yeagley, Kevin T. Maroney, and Lee B. Anderson for the United States.
   Per Curiam.

The motion for leave to proceed in forma pauperis is granted.

Upon consideration of the suggestion of mootness filed by the Solicitor General, and upon an examination of the entire record, the petition for a writ of certiorari is granted, the judgment of the United States Court of Appeals for the Tenth Circuit is vacated and the case is remanded to that court with instructions to dismiss the appeal as moot.


author: Per Curiam

text:
    YOUNG v. UNITED STATES
    No. 579,
    Misc.
    Decided February 27, 1970

      Solicitor General Griswold, Assistant Attorney General Wilson, Beatrice Rosenberg, and Roger A. Pauley for the United States.
   Per Curiam

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the United States Court of Appeals for the Eighth Circuit with directions to appoint counsel for the petitioner. If thereafter counsel is unable to present any non-frivolous issue on appeal, the Court of Appeals would then be free to dismiss the appeal as legally insubstantial.

The Chief Justice is of the opinion that the petition for a writ of certiorari should be denied.


text:
    NEW YORK FEED CO., INC., et al. v. LEARY et al.
    No. 992.
    Decided February 27, 1970

      Herald Price Fahringer for appellants in No. 992. Ralph J. Schwarz, Jr., and Albert B. Gerber for appellants in No. 998.

      J. Lee Rankin and Stanley Buchsbaum for appellee Leary in both cases, and Frank S. Hógan, pro se, and Michael R. Juviler for appellee Hogan in both cases. Louis J. Lefkowitz, Attorney General of New York, pro se, Samuel A. Hirshowitz, First Assistant Attorney General, and Charles A. La Torella, Jr., Assistant Attorney General, filed a motion to dismiss or affirm for the Attorney General of New York.

      Together with No. 998, Milky Way Productions, Inc., et al. v. Leary et al., also on appeal from the same court.

   Per Curiam.

The motions to affirm are granted and the judgments are affirmed.

Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted and the cases set for oral argument.


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

text:
    H. K. PORTER CO., INC., DISSTON DIVISION-DANVILLE WORKS v. NATIONAL LABOR RELATIONS BOARD et al.
    No. 230.
    Argued January 15, 1970
    Decided March 2, 1970

      Donald C. Winson argued the cause for petitioner. With him on the brief were Paul R. Obert, Thomas P. Luscher, and William Alvah Stewart.

      Norton J. Come argued the cause for respondent National Labor Relations Board. With him on the brief were Solicitor General Griswold, Joseph J. Connolly, Arnold Ordman, and Dominick L. Manoli. George H. Cohen argued the cause for respondent United Steelworkers of America, AFL-CIO. With him on the brief were Elliot Bredhoff, Michael H. Gottesman, and Bernard Kleiman.

      Lawrence M. Cohen argued the cause for the Chamber of Commerce of the United States as amicus curiae urging reversal. With him on the briefs was Milton A. Smith.

      J. Albert Woll, Laurence Gold, and Thomas E. Harris filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging affirmance.
   Mr. Justice Black

delivered the opinion of the Court.

After an election respondent United Steelworkers Union was, on October 5, 1961, certified by the National Labor Relations Board as the bargaining agent for certain employees at the Danville, Virginia, plant of the petitioner, H. K. Porter Co. Thereafter negotiations commenced for a collective-bargaining agreement. Since that time the controversy has seesawed between the Board, the Court of Appeals for the District of Columbia Circuit, and this Court. This delay of over eight years is not because the case is exceedingly complex, but appears to have occurred chiefly because of the skill of the company’s negotiators in taking advantage of every opportunity for delay in an act more noticeable for its generality than fqy its precise prescriptions. The entire lengthy dispute mainly revolves around the union’s desire to have the company agree to “check off” the dues owed to the union by its members, that is, to deduct those dues periodically from the company’s wage payments to the employees. The record shows, as the Board found, that the company’s objection to a checkoff was not due to any general principle or policy against making deductions from employees’ wages. The company does deduct charges for things like insurance, taxes, and contributions to charities, and at some other plants it has a checkoff arrangement for union dues. The evidence shows, and the court below found, that the company’s objection was not because of inconvenience, but solely on the ground that the company was “not going to aid and comfort the union.” Efforts by the union to obtain some kind of compromise on the checkoff request were all met with the same staccato response to the effect that the collection of union dues was the “union’s business” and the company was not going to provide any assistance. Based on this and other evidence the Board found, and the Court of Appeals approved the finding, that the refusal of the company to bargain about the checkoff was not made in good faith, but was done solely to frustrate the making of any collective-bargaining agreement. In May 1966, the Court of Appeals upheld the Board’s order requiring the company to cease and desist from refusing to bargain in good faith and directing it to engage in further collective bargaining, if requested by the union to do so, over the checkoff. United Steelworkers v. NLRB, 124 U. S. App. D. C. 143, 363 F. 2d 272, cert. denied, 385 U. S. 851.

In the course of that opinion, the Court of Appeals intimated that the Board conceivably might have required petitioner to agree to a checkoff provision as a remedy for the prior bad-faith bargaining, although the order enforced at that time did not contain any such provision. 124 U. S. App. D. C., at 146-147, and n. 16, 363 F. 2d, at 275-276, and n. 16. In the ensuing negotiations the company offered to discuss alternative arrangements for collecting the union’s dues, but the union insisted that the company was required to agree to the checkoff proposal without modification. Because of this disagreement over the proper interpretation of the court’s opinion, the union, in February 1967, filed a motion for clarification of the 1966 opinion. The motion was denied by the court on March 22, 1967, in an order suggesting that contempt proceedings by the Board would be the proper avenue for testing the employer’s compliance with the original order. A request for the institution of such proceedings was made by the union, and, in June 1967, the Regional Director of the Board declined to prosecute a contempt charge, finding that the employer had “satisfactorily complied with the affirmative requirements of the Order.” App. 111. The union then filed in the Court of Appeals a motion for reconsideration of the earlier motion to clarify the 1966 opinion. The court granted that motion and issued a new opinion in which it held that in certain circumstances a “checkoff may be imposed as a remedy for bad faith bargaining.” United Steelworkers v. NLRB, 128 U. S. App. D. C. 344, 347, 389 F. 2d 295, 298 (1967). The case was then remanded to the Board and on July 3, 1968, the Board issued a supplemental order requiring the petitioner to “[g]rant to the Union a contract clause providing for the checkoff of union dues.” 172 N. L. R. B. No. 72, 68 L. R. R. M. 1337. The Court of Appeals affirmed this order, H. K. Porter Co. v. NLRB, 134 U. S. App. D. C. 227, 414 F. 2d 1123 (1969). We granted certiorari to consider whether the Board in these circumstances has the power to remedy the unfair labor practice by requiring the company to agree to check off the dues of the workers. 396 U. S. 817. For reasons to be stated we hold that while the Board does have power under the National Labor Relations Act, 61 Stat. 136, as amended, to require employers and employees to negotiate, it is without power to compel a company or a union to agree to any substantive contractual provision of a collective-bargaining agreement.

Since 1935 the story of labor relations in this country has largely been a history of governmental regulation of the process of collective bargaining. In that year Congress decided that disturbances in the area of labor relations led to undesirable burdens on and obstructions of interstate commerce, and passed the National Labor Relations Act, 49 Stat. 449. That Act, building on the National Industrial Recovery Act, 48 Stat. 195 (1933), provided that employees had a federally protected right to join labor organizations and bargain collectively through their chosen representatives on issues affecting their employment. Congress also created the National Labor Relations Board to supervise the collective-bargaining process. The Board was empowered to investigate disputes as to which union, if any, represented the employees, and to certify the appropriate representative as the designated collective-bargaining agent. The employer was then required to bargain together with this representative and the Board was authorized to make sure that such bargaining did in fact occur. Without spelling out the details, the Act provided that it was an unfair labor practice for an employer to refuse to bargain. Thus a general process was established that would ensure that employees as a group could express their opinions and exert their combined influence over the terms and conditions of their employment. The Board would act to see that the process worked.

The object of this Act was not to allow governmental regulation of the terms and conditions of employment, but rather to ensure that employers and their employees could work together to establish mutually satisfactory conditions. The basic theme of the Act was that through collective bargaining the passions, arguments, and struggles of prior years would be channeled into constructive, open discussions leading, it was hoped, to mutual agreement. But it was recognized from the beginning that agreement might in some cases be impossible, and it was never intended that the Government would in such cases step in, become a party to the negotiations and impose its own views of a desirable settlement. This fundamental limitation was made abundantly clear in the legislative reports accompanying the 1935 Act. The Senate Committee on Education and Labor stated:

“The committee wishes to dispel any possible false impression that this bill is designed to compel the making of agreements or to permit governmental supervision of their terms. It must be stressed that the duty to bargain collectively does not carry with it the duty to reach an agreement, because the essence of collective bargaining is that either party shall be free to decide whether proposals made to it are satisfactory."

The discussions on the floor of Congress consistently reflected this same understanding.

The Act was passed at a time in our Nation’s history when there was considerable legal debate over the constitutionality of any law that required employers to conform their business behavior to any governmentally imposed standards. It was seriously contended that Congress could not constitutionally compel an employer to recognize a union and allow his employees to participate in setting the terms and conditions of employment. In NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1 (1937), this Court, in a 5-to-4 decision, held that Congress was within the limits of its constitutional powers in passing the Act. In the course of that decision the Court said:

“The Act does not compel agreements between employers and employees. It does not compel any agreement whatever. . . . The theory of the Act is that free opportunity for negotiation with accredited representatives of employees is likely to promote industrial peace and may bring about the adjustments and agreements which the Act in itself does not attempt to compel.” Id., at 45.

In 1947 Congress reviewed the experience under the Act and concluded that certain amendments were in order. In the House committee report accompanying what eventually became the Labor Management Relations Act, 1947, the committee referred to the above-quoted language in Jones & Laughlin and said:

“Notwithstanding this language of the Court, the present Board has gone very far, in the guise of determining whether or not employers had bargained in good faith, in setting itself up as the judge of what concessions an employer must make and of the proposals and counterproposals that he may or may not make. . . .
“[Ujnless Congress writes into the law guides for the Board to follow, the Board may attempt to carry this process still further and seek to control more and more the terms of collective-bargaining agreements.”

Accordingly Congress amended the provisions defining unfair labor practices and said in § 8 (d) that:

“For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession.”

In discussing the effect of that amendment, this Court said it is “clear that the Board may not, either directly or indirectly, compel concessions or otherwise sit in judgment upon the substantive terms of collective bargaining agreements.” NLRB v. American Ins. Co., 343 U. S. 395, 404 (1952). Later this Court affirmed that view stating that “it remains clear that § 8 (d) was an attempt by Congress to prevent the Board from controlling the settling of the terms of collective bargaining agreements.” NLRB v. Insurance Agents, 361 U. S. 477, 487 (1960). The parties to the instant case are agreed that this is the first time in the 35-year history of the Act that the Board has ordered either an employer or a union to agree to a substantive term of a collective-bargaining agreement.

Recognizing the fundamental principle “that the National Labor Relations Act is grounded on the premise of freedom of contract,” 128 U. S. App. D. C., at 349, 389 F. 2d, at 300, the Court of Appeals in this case concluded that nevertheless in the circumstances presented here the Board could properly compel the employer to agree to a proposed checkoff clause. The Board had found that the refusal was based on a desire to frustrate agreement and not on any legitimate business reason. On the basis of that finding the Court of Appeals approved the further finding that the employer had not bargained in good faith, and the validity of that finding is not now before us. Where the record thus revealed repeated refusals by the employer to bargain in good faith on this issue, the Court of Appeals concluded that ordering agreement to the checkoff clause “may be the only means of assuring the Board, and the court, that [the employer] no longer harbors an illegal intent.” 128 U. S. App. D. C., at 348, 389 F. 2d, at 299.

In reaching this conclusion the Court of Appeals held that § 8 (d) did not forbid the Board from compelling agreement. That court felt that “[s]eetion 8 (d) defines collective bargaining and relates to a determination of whether a . . . violation has occurred and not to the scope of the remedy which may be necessary to cure violations which have already occurred.” 128 U. S. App. D. C., at 348, 389 F. 2d, at 299. We may agree with the Court of Appeals that as a matter of strict, literal interpretation that section refers only to deciding when a violation has occurred, but we do not agree that that observation justifies the conclusion that the remedial powers of the Board are not also limited by the same considerations that led Congress to enact § 8 (d). It is implicit in the entire structure of the Act that the Board acts to oversee and referee the process of collective bargaining, leaving the results of the contest to the bargaining strengths of the parties. It would be anomalous indeed to hold that while § 8 (d) prohibits the Board from relying on a refusal to agree as the sole evidence of bad-faith bargaining, the Act permits the Board to compel agreement in that same dispute. The Board’s remedial powers under § 10 of the Act are broad, but they are limited to carrying out the policies of the Act itself. One of these fundamental policies is freedom of contract. While the parties’ freedom of contract is not absolute under the Act, allowing the Board to compel agreement when the parties themselves are unable to agree would violate the fundamental premise on which the Act is based — private bargaining under governmental supervision of the procedure alone, without any official compulsion over the actual terms of the contract.

In reaching its decision the Court of Appeals relied extensively on the equally important policy of the Act that workers’ rights to collective bargaining are to be secured. In this case the court apparently felt that the employer was trying effectively to destroy the union by refusing to agree to what the union may have considered its most important demand. Perhaps the court, fearing that the parties might resort to economic combat, was also trying to maintain the industrial peace that the Act is designed to further. But the Act as presently drawn does not contemplate that unions will always be secure and able to achieve agreement even when their economic position is weak, or that strikes and lockouts will never result from a bargaining impasse. It cannot be said that the Act forbids an employer or a union to rely ultimately on its economic strength to try to secure what it cannot obtain through bargaining. It may well be true, as the Court of Appeals felt, that the present remedial powers of the Board are insufficiently broad to cope with important labor problems. But it is the job of Congress, not the Board or the courts, to decide when and if it is necessary to allow governmental review of proposals for collective-bargaining agreements and compulsory submission to one side’s demands. The present Act does not envision such a process.

The judgment is reversed and the case is remanded to the Court of Appeals for further action consistent with this opinion.

Reversed and remanded.

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

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

Mr. Justice Harlan,

concurring.

I join in the Court’s opinion on the understanding that nothing said therein is meant to disturb or question the primary determination made by the Board and sus-tamed by the Court of Appeals, that petitioner did not bargain in “good faith,” and thus may be subjected to a bargaining order enforceable by a citation for contempt if the Board deems such a proceeding appropriate.

Mr. Justice Douglas,

with whom Mr. Justice Stewart concurs,

dissenting.

The Court correctly describes the general design and main thrust of the Act. It does not encompass compulsory arbitration; the Board does not sit to impose what it deems to be the best conditions for the collective-bargaining agreement; the obligation to bargain collectively “does not compel either party to agree to a proposal or require the making of a concession.” § 8 (d) of the Act.

Yet the Board has the power, where one party does not bargain in good faith, “to take such affirmative action ... as will effectuate the policies” of the Act. § 10 (c) of the Act.

Here the employer did not refuse the checkoff for any business reason, whether cost, inconvenience, or what not. Nor did the employer refuse the checkoff as a factor in its bargaining strategy, hoping that delay and denial might bring it in exchange favorable terms and conditions. Its reason was a resolve to avoid reaching any agreement with the union.

In those narrow and specialized circumstances, I see no answer to the power of the Board in its discretion to impose the checkoff as “affirmative action” necessary to remedy the flagrant refusal of the employer to bargain in good faith.

The case is rare, if not unique, and will seldom arise. I realize that any principle once announced may in time gain a momentum not warranted by the exigencies of its creation. But once there is any business consideration that leads to a denial of a demand or any consideration of bargaining strategy that explains the refusal, the Board has no power to act. Its power is narrowly restricted to the clear case where the refusal is aimed solely at avoidance of any agreement. Such is the present case. Hence, with all respect for the strength of the opposed view, I dissent.

       S. Rep. No. 573, 74th Cong., 1st Sess., 12 (1935).

       “Let me say that the bill requires no employer to sign any contract, to make any agreement, to reach any understanding with any employee or group of employees. . . .
      “Nothing in this bill allows the Federal Government or any agency to fix wages, to regulate rates of pay, to limit hours of work, or to effect or govern any working condition in any establishment or place of employment.
      “A crude illustration is this: The bill indicates the method and manner in which employees may organize, the method and manner of selecting their representatives or spokesmen, and leads them to the office door of their employer with the legal authority to negotiate for their fellow employees. The bill does not go beyond the office door. It leaves the discussion between the employer and the employee, and the agreements which they may or may not make, voluntary and with that sacredness and solemnity to a voluntary agreement with which both parties to an agreement should be enshrouded.” Remarks of Senator Walsh, 79 Cong. Rec. 7659; see also 79 Cong. Rec. 9682, 9711.

       H. R. Rep. No. 245, 80th Cong., 1st Sess., 19-20 (1947).

       29 U. S. C. § 158 (d) (emphasis added).

       “If . . . the Board shall be of the opinion that any person . . . has engaged in or is engaging in any . . . unfair labor practice, then the Board shall state its findings of fact and shall issue and cause to be served on such person an. order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action ... as will effectuate the policies of [the Act].” 29 U. S. C. § 160 (c).

       For example, the employer is not free to choose any employee representative he wants, and the representative designated by the majority of the employees represents the minority as well. The Act itself prohibits certain contractual terms relating to refusals to deal in the goods of others, 29 U. S. C. § 158 (e). Various practices in enforcing the Act may to some extent limit freedom to contract as the parties desire. See generally Wellington, Freedom of Contract and the Collective Bargaining Agreement, 112 U. Pa. L. Rev. 467 (1964).