author: Mr. Chief Justice Warren

text:
    UNITED STATES v. AN ARTICLE OF DRUG . . . BACTO-UNIDISK ....
    No. 343.
    Argued January 23, 1969.
    Decided April 28, 1969.

      Lawrence G. Wallace argued the cause for the United States. With him on the brief were Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, Ronald L. Gainer, and William W. Goodrich.

      Edward Brown Williams argued the cause and filed a brief for respondent.

      “The term ‘device’. . . means instruments, apparatus, and contrivances ... for use in the diagnosis ... of disease in roan . . . ,” It would indeed be difficult to write a clearer description of an antibiotic sensitivity disc,

   Mr. Chief Justice Warren

delivered the opinion of the court.

At issue here is the scope of the statutory definition of drug contained in the Federal Food, Drug, and Cosmetic Act and the extent of the Secretary of Health, Education, and Welfare’s regulatory authority under that definition. The specific item involved in this definitional controversy is a laboratory aid known as an antibiotic sensitivity disc, used as a screening test for help in determining the proper antibiotic drug to administer to patients. If the article is a “drug” within the general definition of § 201 of the Federal Food, Drug, and Cosmetic Act (52 Stat. 1040, 21 U. S. C. § 321 (1964 ed., Supp. II)), then the Secretary can subject it to pre-market clearance regulations promulgated pursuant to § 507 of the Act (21 U. S. C. § 357). Section 507 authorizes the Secretary to require batch certification of any antibiotic product which also meets the general drug definition of § 201. If, on the other hand, the article is merely a “device” under the Act, it is subject only to the misbranding and adulteration proscriptions of the Act and does not have to be pre-tested before marketing; and, of course, if the disc does not fall under either definition, the Act itself is totally inapplicable.

When the discs were marketed without complying with the certification regulations of the Secretary, the Government condemned them pursuant to § 334 of the Act (21 U. S. C. § 331) on the assumption that the discs were drugs and thus validly subject to pre-market regulation. In this action following the condemnation, however, the United States District Court for the Eastern District of Michigan held that the discs were not drugs within the meaning of the Act, suggesting that, if anything, they were devices. It therefore ruled that, since pre-market clearance was not required or authorized, the seizure was improper. The Court of Appeals for the Sixth Circuit affirmed on the same reasoning. We reverse.

I.

Some background information about the development of the discs and the controlling legislation is necessary for an understanding of the determinations made by the Secretary and the courts below. Various antibiotics, known more commonly as “wonder drugs” under such familiar names as penicillin, aureomycin, terramycin, tetracycline, and streptomycin, have proved very useful since World War II in treating numerous infectious diseases. Produced biologically, however, these drugs tend to vary greatly in their quality and potency unless developed, and thereafter tested, under very carefully controlled conditions. Consequently, Congress enacted § 507 of the Food, Drug, and Cosmetic Act, directing the Secretary of Health, Education, and Welfare to promulgate regulations establishing such standards of identity, potency, quality, and purity as necessary to ensure the “safety” and “efficacy” of those antibiotics. At present, more than 30 antibiotic drugs are listed (21 CFR § 145.3) with accompanying regulations covering more than 700 pages in the Code of Federal Regulations (21 CFR §§ 141.1-148Z.4).

With the proliferation of the various types of antibiotics, doctors found a need for a screening test to help choose which antibiotic to use in treating a particular infection. A diffusion test, using antibiotic sensitivity discs like the one in question here, soon became a widely employed screening method. In this test, a round paper disc, which has been impregnated with a specific antibiotic, is placed in contact with sample cultures, or isolates, of a patient’s virus, grown in a special culture medium (agar) from a specimen of the patient’s fluid (blood, spinal fluid, sputum, urine, etc.). In those places impregnated with an antibiotic to which the patient’s infection is sensitive, no new isolate will grow, leaving a clear area (an “inhibition zone”); in those places impregnated with a drug to which the infection is resistant, the isolate will grow, leaving no clear area. The disc is used, in conjunction with a patient’s specimen, in laboratory work exclusively, and never comes in contact with any part of the patient’s body itself.

The discs had been in general use for some four years when, in 1960, the Secretary of Health, Education, and Welfare determined to regulate them pursuant to § 507. After notice and an opportunity for public participation, the Commissioner of Food and Drugs, under authority delegated by the Secretary, promulgated regulations requiring pre-clearance, batch-testing, and certification of antibiotic sensitivity discs (25 Fed. Reg. 9369). The Commissioner’s action, the regulations noted, followed “numerous complaints by the medical profession, hospitals, and laboratory technicians” and a resulting extensive survey of the use of the discs. That study found the discs unreliable in their statements of potency with resulting loss of safety and efficacy, and thus found it “vital for the protection of the public health” to adopt the regulations (25 Fed. Reg. 9370).

This case arose in May 1962 as an in rem seizure proceeding against an interstate shipment of a number of cases of sensitivity discs, manufactured by Difco Laboratories, Inc., under the trade name of “Bacto-Unidisk." In condemning the product pursuant to § 301 et seq. of the Food, Drug, and Cosmetic Act, the United States claimed, inter alia, that the product, as a “drug” within the meaning of the Act, had not been certified nor exempted from certification as required by § 507 (21 U. S. C. § 357) and the regulations thereunder and was therefore misbranded under § 502 (21 U. S. C. § 352). The seizure was proper only if the Secretary’s regulations subjecting the discs to the pre-market clearance requirements were authorized by the Act. Since the scope of the Secretary’s pre-market regulatory power over antibiotic drugs under § 507 depends ultimately on the Act’s general definition of “drug” in § 201 (g), the validity of the disc regulations allegedly violated turned on the coverage of the drug definition:

“For the purposes of this chapter—
“(g)(1) The term 'drug’ means (A) articles recognized in the official United States Pharmacopoeia, official Homoeopathic Pharmacopoeia of the United States, or official National Formulary, or any supplement to any of them; and (B) articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals; and (C) articles (other than food) intended to affect the structure or any function of the body of man or other animals; and (D) articles intended for use as a component of any article specified in clauses (A), (B), or (C) of this paragraph; but does not include devices or their components, parts, or accessories.” 21 U. S. C. § 321 (1964 ed., Supp. II).

If, on the other hand, the product was a “device,” only the misbranding, adulteration, and labeling provisions of §§ 501 and 502 applied, and the Secretary’s disc certification regulations were invalidly promulgated. Although a “device” expressly cannot be a “drug” under the last phrase of the drug definition above, a device is given almost a parallel definition in § 201 (h):

“The term ‘device’ . . . means instruments, apparatus, and contrivances, including their components, parts, and accessories, intended (1) for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals; or (2) to affect the structure or any function of the body of man or other animals.” 21 U. S. C. § 321 (h).

Finally, it was established at trial that of the various definitions given above, the operative ones in this case were §201 (g)(1)(B) of the drug provision and §201 (h)(1) of the parallel device definition; the essential question underlying the validity of the regulations, then, was whether the Bacto-Unidisks were “articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals.”

In resolving this question in the negative and holding the seizure invalid, the District Court noted in a memorandum opinion that the concept of drug is limited in a medical sense to articles administered to man either externally or internally, and ruled that the “evidence affords no basis for the conclusion that the definition of ‘drug’ in the Federal Food, Drug, and Cosmetic Act . . . was intended by Congress to extend beyond the meaning of that term in medical science, to encompass these sensitivity disks.” The District Court pointed out that although a “literal reading” of §201 (g)(1)(B) “clearly has application to the article libeled herein,” enforcing such an application would be “ridiculous and contrary to common sense.” The court therefore held that the Bacto-Unidisk did not fall within the purview of the Act for the reason that it was not medically a drug, and suggested, without deciding, that the discs would be more appropriately classified as “devices” under the Act.

On appeal, the Court of Appeals for the Sixth Circuit affirmed, accepting the District Court’s conclusions that the Bacto-Unidisk was not a “drug” in the medical sense of the term and that Congress did not intend the statutory definition of “drug” to be any broader than the medical one. 392 F. 2d 21, 23. The court noted that the discs did aid physicians in the determination of what antibiotic to use for the cure, mitigation, or treatment of disease by furnishing useful information, but held that Congress did not intend to apply the statutory phrase “intended for use in the . . . cure, mitigation, [or] treatment” in such an indirect manner. 392 F. 2d 21, 22. We granted the Government’s petition for certiorari because this interpretation of the Act raised issues of importance in the administration of the Federal Food, Drug, and Cosmetic Act (393 U. S. 911 (1968)).

II.

Although there was some testimony below debating the precise extent of the public health dangers posed by the sensitivity discs, the courts below declined to substitute their judgment for that of the Commissioner of Food and Drugs by determining whether his action was really necessary to protect the public health from a purely medical viewpoint. Rather, the courts below quite properly confined the inquiry to an examination of whether the disc regulations, even if medically unwise, were authorized by the Act, and more specifically, by the Act’s definition of “drug.” Despite the renewed effort here to relitigate the public health issue, we agree with the decision implicitly made by the courts below not to base a resolution of this case on the public need for, or medical wisdom of, the Secretary’s regulations requiring pre-market clearance of antibiotic sensitivity discs. It is enough for us that the expert agency charged with the enforcement of remedial legislation has determined that such regulation is desirable for the public health, for we are hardly qualified to second-guess the Secretary’s medical judgment. Our sole concern is whether the statute’s definition of “drug” authorizes the disc regulations contested here; and while we agree with the lower courts’ limited conception of the issue, for reasons outlined below, we reverse their disposition of it.

Respondent’s primary contention here is that the sensitivity discs are not subject to any of the provisions of the Act because Congress did not intend it to cover articles used so indirectly in the “cure, mitigation, [and] treatment” of disease. Respondent uses the same two-step analysis relied on by the courts below: (1) Congress did not intend to write the drug definition more broadly than does the medical profession, and (2) the medical concept of drug is limited to articles that are administered to man either internally or externally. Alternatively, respondent argues, even if the Act’s “intended for use” language does cover the discs, they must clearly be classified as devices. In view of the legislative history discussed below and the broad, remedial purpose of the Act itself, however, we hesitate to give the critical language such a narrow, restrictive reading in the absence of congressional direction to do so, and we therefore reject the contention that the discs do not properly fall within the purview of the Act. For the same basic reasons, we furthermore reject the argument that the discs, once found to come under the Act’s coverage, must be classified specifically as devices and not drugs.

We need not stop to parse the language of the Act’s definition of drug, for the District Court found, and the parties do not disagree here, that a literal reading of the words “intended for use in the . . . cure, mitigation, [or] treatment” of disease “clearly has application” to the Bacto-Unidisk. Although respondent again urges that the disc itself does not “treat” a patient in the same way an antibiotic does in terms of personal application, the disc plays at least some role in the selection of the appropriate drug. Thus, the essential question for our determination is whether Congress intended the definition of drug to have the broad coverage the courts below and the parties agree its words allow. Viewing the structure, the legislative history, and the remedial nature of the Act, we think it plain that Congress intended to define “drug” far more broadly than does the medical profession. The reason for including a separate, almost parallel, definition of “devices” in the Act is, as the legislative history shows, relevant to congressional intent. It is therefore helpful to consider both the question of the Act's initial application and the question of the drug-device dichotomy at the same time.

III.

At the outset, it is clear from § 201 that the word “drug” is a term of art for the purposes of the Act, encompassing far more than the strict medical definition of that word. If Congress had intended to limit the statutory definition to the medical one, it could have so stated explicitly, or simply have made reference to the official United States Pharmacopoeia (or the National Formulary), as it did in the first of the three subsections of § 201 (g)(1), and let the definition rest there. The historical expansion of the statute’s definition, furthermore, clearly points out Congress’ intention of going fceyond the medical usage. The 1906 Food and Drug Act, fpr instance, defined “drug” in a rather limited way to include “all medicines and preparations recognized in the United States Pharmacopoeia or National Formulary for internal or external use, and any substance or mixture of substances intended to be used for the cure, mitigation, or prevention of disease of either man or other animals.” 34 Stat. 768, 769. As subsequent congressional action clearly indicates, however, the scope of that original definition has since been greatly enlarged.

The enactment of the 1938 Federal Food, Drug, and Cosmetic Act illustrates the expansion of the definition of drug. One of the changes contemplated in S. 2800, an early version of the Act, defined “drug” to include

“(1) all substances and preparations recognized in the United States Pharmacopoeia, Homoeopathic Pharmacopoeia of the United States, or National Formulary or supplements thereto; and (2) all substances, preparations, and devices intended for use in the cure, mitigation, treatment, or prevention of disease in man or other animals; and (3) all substances and preparations, other than food, and all devices intended to affect the structure or any function of the body.” (See S. Rep. No. 493, 73d Cong., 2d Sess. (1934).) (Emphasis added.)

Senator Copeland of New York, who sponsored the Act, remarked about the inclusion of the word “devices” in his prepared statement introducing S. 2800 as follows:

“The present law defines drugs as substances or mixtures of substances intended to be used for the cure, mitigation, or prevention of disease. This narrow definition permits escape from legal control of all therapeutic or curative devices like electric belts, for example. It also permits the escape of preparations which are intended to alter the structure or some function of the body, as, for example, preparations intended to reduce excessive weight. There are many worthless and some dangerous devices and preparations falling within these classifications. S. 2800 contains ample authority to control them.” (78 Cong. Rec. 8960 (1934).)

The definition was revised in S. 5, 74th Cong., 1st Sess. (1935), to include substances, preparations, and devices intended for diagnostic purposes, as well as for cure, mitigation, treatment, or prevention of disease (S. 5, § 201 (b), S. Rep. No. 361, 74th Cong., 1st Sess. (1935)). As the inclusion of the word “diagnosis” came before the Senate for consideration, a controversy developed on the floor, aimed more at the word “devices,” which was not then before the Senate, than at the word “diagnosis.” 79 Cong. Rec. 4841-4845 (1935). Senator Clark contended that it was not proper to classify devices as drugs, and that diagnostic devices were so broadly defined as to make even a bathroom scale a drug:

“[I]f the devices ought to be outlawed, they ought to be outlawed, and I have no objection to that; but to maintain that a purely mechanical device is a drug and to be treated as a drug in law and in logic and in lexicography is a palpable absurdity, in my opinion.” Id., at 4841.

In answer to Senator Clark’s remark that a bathroom scale would be classified as a drug, Senator Copeland made the following comment:

“Mr. President, I desire to state the effect of this amendment. There are on the market certain electrical devices. A man takes hold of the handles of the machine, and the indicator spins around. It stops at 'appendicitis/ or it stops at 'meningitis' .... Such a device is manifestly a fraud upon society. That is what the amendment is designed to deal with.” Id., at 4842.

Despite Senator Copeland's proffered explanation, there was continued criticism during the Senate debates (79 Cong. Rec. 4905-4920, 5215-5234) of the definition on the ground that it would lead to the incongruous result of calling the following items “drugs”: shoulder braces {id., at 4841), radium belts (ibid.), electrical devices (id., at 4842), bathroom weight scales (ibid.), and hospital air conditioning apparatus (id., at 5231). The opposition finally settled on “crutches” (id., at 4913) to signify the ultimate absurdity of the drug definition's broad coverage.

As a result of the criticism on the Senate floor, Senator Copeland proposed an amendment to add a definition of “device” to parallel that of drug, an amendment which was included when the bill was returned to the Senate Committee on Commerce and later agreed to by the Senate without debate. (Id., at 8351-8355.) The ultimate effect of the various amendments, of course, was still to include devices under the control of the Act for the first time, the goal Senator Copeland had originally-set out to achieve. As Congressman Chapman of Kentucky explained to the House after the bill had passed the Senate, “For the first time it is proposed in a bill before Congress to control therapeutic devices . . . . There are hundreds of worthless contrivances being sold to and used by gullible people. Suffice it to say that a fake contraption for the cure of consumption is just as serious a menace to health as is a worthless drug sold for the same disease.” 80 Cong. Rec. 10236 (1936). According to the Chief of the Food and Drug Administration, the reason for providing a separate definition of devices, instead of using Senator Copeland’s original drug definition, was simply to avoid “the incongruity of classifying certain devices, such as the electric belt, therapeutic lamps, and so forth, as drugs . . . .” (Testimony given during hearings held on S. 5 by a subcommittee of the House Committee on Interstate and Foreign Commerce, 74th Cong., 1st Sess. (1935).) Because of that incongruity as “pointed out by the Senate in the last consideration of the bill,” the official explained, “[t]hey felt it proper to provide an independent definition of ‘devices.’ ” Thus, it is clear that two parallel definitions were provided for semantic reasons only; for the purposes of the Act, the two definitions had the same effect of subjecting both drugs and devices to the adulteration and misbranding provisions. No practical significance to the distinction between the two words arose until the pre-market clearance provisions, similar to the certification regulations for antibiotics enacted in 1945, were added after a drug tragedy in the fall of 1937. (S. 3073, 75th Cong., 2d Sess.) The excepting clause of §201 (g)(1), stating clearly that a drug cannot be a device, was also added in 1938 (S. 5, 75th Cong., 3d Sess., H. R. Rep. No. 2139).

The historical expansion of the definition of drug, and the creation of a parallel concept of devices, clearly show, we think, that Congress fully intended that the Act’s coverage be as broad as its literal language indicates — and equally clearly, broader than any strict medical definition might otherwise allow. Strong indications from legislative history that Congress intended the broad coverage the District Court thought “ridiculous” should satisfy us that the lower courts erred in refusing to apply the Act’s language as written. But we are all the more convinced that we must give effect to congressional intent in view of the well-accepted principle that remedial legislation such as the Food, Drug, and Cosmetic Act is to be given a liberal construction consistent with the Act’s overriding purpose to protect the public health, and specifically, § 507’s purpose to ensure that antibiotic products marketed serve the public with “efficacy” and “safety.” Cf. United States v. Sullivan, 332 U. S. 689, 693-695 (1948); United States v. Dotterweich, 320 U. S. 277, 283-284 (1943).

IV.

Respondent’s alternative contention, that even if its product does fall within the purview of the Act, it is plainly a “device” and therefore by definition necessarily not a “drug,” must also be rejected, we believe, in light of the foregoing analysis. At the outset, it must be conceded that the language of the statute is of little assistance in determining precisely what differentiates a “drug” from a “device”: to the extent that both are intended for use in the treatment, mitigation and cure of disease, the former is an “article” and the latter includes “instruments,” “apparatus,” and “contrivances.” Despite the obvious areas of overlap in definition, we are not entirely without guidance in determining the propriety of the Secretary’s decision below, given the overall goals of the Act and its legislative history.

More specifically, as we have previously held in an analogous situation where the statute’s language seemed insufficiently precise, the “natural way” to draw the line “is in light of the statutory purpose” (SEC v. Ralston Purina Co., 346 U. S. 119, 124H25 (1953)). Since the patient will tend to derive less benefit and perhaps some harm from a particular antibiotic if, though the drug itself was properly batch-tested, it was not the proper antibiotic to use, it was entirely reasonable for the Secretary to determine that the discs, like the antibiotics they serve, are drugs and similarly subject to pre-clearance certification under § 507. An opposite conclusion might undercut the value of testing the antibiotics themselves, for such testing would be a useless exercise if the wrong drug were ultimately administered, even partially as the result of an unreliable disc.

Furthermore, the legislative history, read in light of the statute’s remedial purpose, directs us to read the classification “drug” broadly, and to confine the device exception as nearly as is possible to the types of items Congress suggested in the debates, such as electric belts, quack diagnostic scales, and therapeutic lamps, as well as bathroom weight scales, shoulder braces, air conditioning units, and crutches. In upholding the Secretary’s determination here, without deciding the precise contours of the “device” classification, we need only point out that the exception was created primarily for the purpose of avoiding the semantic incongruity of classifying as drugs (1) certain quack contraptions and (2) basic aids used in the routine operation of a hospital — items characterized more by their purely mechanical nature than by the fact that they are composed of complex chemical compounds or biological substances. Finally, we are supported in the decision to uphold the FDA’s determination that the sensitivity discs fall under the coverage of the Act and specifically under the drug provision thereof by the knowledge that the classification of these discs as drugs may not be as contrary to common medical usage as the District Court and respondent would have us believe.

In upholding the Secretary’s construction of the Act, we are not unmindful of our warning that “[i]n our anxiety to effectuate the congressional purpose of protecting the public, we must take care not to extend the scope of the statute beyond the point where Congress indicated it would stop.” 62 Cases of Jam v. United States, 340 U. S. 593, 600 (1951). Our holding here simply involves an obvious corollary to that principle, that we must take care not to narrow the coverage of a statute short of the point where Congress indicated it should extend.

Reversed.

Mr. Justice Douglas, being of the view that an antibiotic sensitivity disc used by physicians to aid them in determining what antibiotic drug, if any, to give to a patient, is a “device” as defined in § 201 (h) of the Act, not a “drug” as defined in § 201 (g), would affirm the judgment.

       See generally L. Goodman & A. Gilman, The Pharmacological Basis of Therapeutics (3d ed., 1965).

       See H. R. Rep. No. 702, 79th Cong., 1st Sess. (1945). Section 507, as set forth in 21 U. S. C. § 357, reads as follows:
      “(a) The Secretary of Health, Education, and Welfare, pursuant to regulations promulgated by him, shall provide for the certification of batches of drugs composed wholly or partly of any kind of penicillin, streptomycin, chlortetracycline, chloramphenicol, baci-tracin, or any other antibiotic drug, or any derivative thereof. A batch of any such drug shall be certified if such drug has such characteristics of identity and such batch has such characteristics of strength, quality, and purity, as the Secretary prescribes in such regulations as necessary to adequately insure safety and efficacy of use, but shall not otherwise be certified. Prior to the effective date of such regulations the Secretary, in lieu of certification, shall issue a release for any batch which, in his judgment, may be released without risk as to the safety and efficacy of its use. Such release shall prescribe the date of its expiration and other conditions under which it shall cease to be effective as to such batch and as to portions thereof. For purposes of this section and of section 352 (l) of this title, the term 'antibiotic drug’ means any drug intended for use by man containing any quantity of any chemical substance which is produced by a microorganism and which has the capacity to inhibit or destroy microorganisms in dilute solution (including the chemically synthesized equivalent of any such substance).
      “(b) Regulations providing for such certifications shall contain such provisions as are necessary to carry out the purposes of this section, including provisions prescribing (1) standards of identity and of strength, quality, and purity; (2) tests and methods of assay to determine compliance with such standards; (3) effective periods for certificates, and other conditions under which they shall cease to be effective as to certified batches and as to portions thereof; (4) administration and procedure; and (5) such fees, specified in such regulations, as are necessary to provide, equip, and maintain an adequate certification service. Such regulations shall prescribe only such tests and methods of assay as will provide for certification or rejection within the shortest time consistent with the purposes of this section.”

       See generally Bauer, Kirby, Sherris, & Turck, Antibiotic Susceptibility Testing by a Standardized Single Disk Method, 45 American Journal of Clinical Pathology 493 (1966); Petersdorf & Sherris, Methods and Significance of In Vitro Testing of Bacterial Sensitivity to Drugs, 39 American Journal of Medicine 766 (1965); Gould, The Laboratory Control of Antibiotic Therapy, 3 Chemotherapia 477 (1961); Second Report of the Expert Committee on Antibiotics, Standardization of Methods for Conducting Microbio Sensitivity Tests, World Health Organization Technical Report Series No. 210, pp. 12-17 (1961).

       Section 502, as set forth in 21 U. S. C. § 352, reads, in part, as follows:
      “A drug or device shall be deemed to be misbranded—

        “(l) If it is, or purports to be, or is represented as a drug composed wholly or partly of any kind of penicillin, streptomycin, chlortetracycline, chloramphenicol, bacitracin, or any other antibiotic drug, or any derivative thereof, unless (1) it is from a batch with respect to which a certificate or release has been issued pursuant to section 357 of this title, and (2) such certificate or release is in effect with respect to such drug: Provided, That this subsection shall not apply to any drug or class of drugs exempted by regulations promulgated under section 357 (c) or (d) of this title.”

       Respondent’s witnesses established that sensitivity discs are not listed in the United States Pharmacopoeia or the National Formu-lary, and thus do not come within that portion of the definition of “drug” in §201 (g)(1)(A).

       The District Court’s opinion is unreported; its pertinent findings of fact and conclusions of law are quoted in the opinion of the Court of Appeals, 392 F. 2d 21, 22-23 (1968).

       The earliest versions were S. 1944, 73d Cong., 1st Sess. (1933), and S. 2000, 73d Cong., 2d Sess. (1934). S. 2800 was succeeded by S. 5, 74th Cong., 1st Sess. (1935). S. 5 died in the House, but was succeeded by S. 5, 75th Cong., 1st Sess. (1937), and was the bill eventually enacted into law, as supplemented by S. 3073, 75th Cong., 2d Sess. (1937), and H. R. 9341, 75th Cong., 3d Sess. (1938).
      Most of the Act’s legislative history is reprinted in C. Dunn, Federal Food, Drug, and Cosmetic Act (1938).

       See Dunn, supra, n. 7, at 214, 237, 239.

        Id., at 286-296.

        Id., at 348-385, 429-476.

         Id., at 429 (remarks of Senator Clark).

         Id., at 369. Senator Bailey of North Carolina remarked:
      “I do not think the President of the United States would tolerate for a moment a piece of legislation that described crutches as 'drugs’ and advertising as ‘adulteration,’ carrying the English language and the law very far.”

       The substitute committee report noted only that: “A definition of devices is provided paralleling that of drugs. This expansion of the definition of the term ‘drug’ and the inclusion of devices are essential if the consumer is to be protected against a multiplicity of abuses not subject to the present law.” (S. Rep. No. 646, 74th Cong., 1st Sess. (1935).) See Dunn, supra, n. 7, at 477.

        Id., at 495-496.

        Id., at 571.

        Id., at 1235, 1247.

       This was the “Elixir-Sulfanilamide” tragedy of September-October, 1937, where nearly 100 persons died as the result of consuming an untested drug. See Report of the Secretary of Agriculture on Deaths Due to Elixir Sulfanilamide-Massengill (submitted in response to S. Res. 194 of November 16, 1937), in Dunn, supra, n. 7, at 1316-1327.

       Cf. Cawley v. United States, 272 F. 2d 443, 445 (C. A. 2d Cir. 1959): “[U]nless they explicitly forbid it, the purpose of a statutory provision is the best test of the meaning of the words chosen.”

       Cf. AMP Inc. v. Gardner, 389 F. 2d 825, 830 (C. A. 2d Cir.), cert. denied sub nom., AMP Inc. v. Cohen, 393 U. S. 825 (1968), petition for rehearing pending.

       See W. Dorland's Illustrated Medical Dictionary 449 (24th ed., 1965), where “drug” is defined as “Any chemical compound or any non-infectious biological substance, not used for its mechanical properties, which may be administered to or used on or for patients, either human or animal, as an aid in the diagnosis, treatment or prevention of disease or other abnormal condition, for the relief of pain or suffering, or to control or improve any physiological or pathological condition.”


source: Caselaw Access Project

license: Public Domain

text:
    McDONALD et al. v. BOARD OF ELECTION COMMISSIONERS OF CHICAGO et al.
    No. 68.
    Argued November 19, 1968.
    Decided April 28, 1969.

      Stanley A. Bass argued the cause for appellants. With him on the briefs was Marshall Patner.

      Stanley T. Kusper, Jr., argued the cause for appellees. With him on the brief was Matthew J. Beemsterboer.

   Mr. Chief Justice Warren

delivered the opinion of the Court.

Appellants and the class they represent are unsen-tenced inmates awaiting trial in the Cook County jail who, though they are qualified Cook County electors, cannot readily appear at the polls either because they are charged with nonbailable offenses or because they have been unable to post the bail imposed by the courts of Illinois. They cannot obtain absentee ballots, for they constitute one of a number of classes for whom no provision for absentee voting has yet been made by the Illinois Legislature. The constitutionality of Illinois’ failure to include them with those who are entitled to vote absentee is the primary issue in this direct appeal from a three-judge court.

The specific provisions attacked here, Ill. Rev. Stat., c. 46, §§ 19-1 to 19-3, have made absentee balloting available to four classes of persons: (1) those who are absent from the county of their residence for any reason whatever; (2) those who are “physically incapacitated,” so long as they present an affidavit to that effect from a licensed physician; (3) those whose observance of a religious holiday precludes attendance at the polls; and (4) those who are serving as poll watchers in precincts other than their own on election day. The availability of the absentee ballot in Illinois has been extended to its present coverage by various amendments over the last 60 years. Prior to 1917, Illinois had no provision for absentee voting, requiring personal attendance at the polls, and in that year the legislature made absentee voting available to those who would be absent from the county on business or other duties. In 1944 absentee voting was made available to all those absent from the county for any reason. The provisions for those remaining in the county but unable to appear at the polls because of physical incapacity, religious holidays, or election duties were added in 1955, 1961, and 1967, respectively.

On March 29, 1967, appellants made timely application for absentee ballots for the April 4 primary because of their physical inability to appear at the polls on that election day. The applications were accompanied by an affidavit from the warden of the Cook County jail attesting to that inability. These applications were refused by the appellee Board of Election Commissioners on the ground that appellants were not “physically incapacitated” within the meaning of §§ 19-1 and 19-2 of the Illinois Election Code. On the same day appellants filed a complaint, alleging that they were unconstitutionally excluded from the coverage of the absentee provisions. They requested that a three-judge court be convened to rule the provisions violative of equal protection insofar as the provisions required denial of an absentee ballot to one judicially incapacitated while making it available at the same time to one medically incapacitated; and they sought an injunction to restrain appellee Board “from refusing to grant [appellants’] timely applications for absentee ballots.” The District Court granted appellants’ request for temporary relief on March 30, before the three-judge court was convened, and ordered the Board to issue ballots to qualified Illinois electors awaiting trial in the Cook County jail. Both parties then filed motions for summary judgment, the Board asserting that to honor the applications would subject its members to criminal liability under Illinois law.

On December 11, the District Court granted summary judgment for the Board, holding that the Illinois provisions extending absentee voting privileges to those physically incapacitated because of medical reasons from appearing at the polls constituted a proper and reasonable legislative classification not violative of equal protection. The case was brought here by appellants on direct appeal, 390 U. S. 1038 (1968), and we affirm.

Appellants argue that Illinois’ absentee ballot provisions violate the Equal Protection Clause of the Fourteenth Amendment for two reasons. First, they contend that since the distinction between those medically incapacitated and those “judicially” incapacitated bears no reasonable relationship to any legitimate state objective, the classifications are arbitrary and therefore in violation of equal protection. Secondly, they argue that since pretrial detainees imprisoned in other States or in counties within the State other than those of their own residence can vote absentee as Illinois citizens absent from the county for any reason, it is clearly arbitrary to deny the absentee ballot to other unsentenced inmates simply because they happen to be incarcerated within their own resident counties. Underlying appellants’ contentions is the assertion that since voting rights are involved, there is a narrower scope for the operation of the presumption of constitutionality than would ordinarily be the case with state legislation challenged in this Court. See Yick Wo v. Hopkins, 118 U. S. 356, 370 (1886).

Before confronting appellants’ challenge to Illinois’ absentee provisions, we must determine initially how stringent a standard to use in evaluating the classifications made thereunder and whether the distinctions must be justified by a compelling state interest; for appellants assert that we are dealing generally with an alleged infringement of a basic, fundamental right. See, e. g., Reynolds v. Sims, 377 U. S. 533 (1964); Harper v. Virginia Board of Elections, 383 U. S. 663 (1966). Thus, while the “States have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised,” Lassiter v. Northampton County Board of Elections, 360 U. S. 45, 50 (1959), we have held that once the States grant the franchise, they must not do so in a discriminatory manner. See Carrington v. Rash, 380 U. S. 89 (1965). More importantly, however, we have held that because of the overriding importance of voting rights, classifications “which might invade or restrain them must be closely scrutinized and carefully confined” where those rights are asserted under the Equal Protection Clause; Harper v. Virginia Board of Elections, supra, at 670. And a careful examination on our part is especially warranted where lines are drawn on the basis of wealth or race, Harper v. Virginia Board of Elections, supra, two factors which would independently render a classification highly suspect and thereby demand a more exacting judicial scrutiny. Douglas v. California, 372 U. S. 353 (1963); McLaughlin v. Florida, 379 U. S. 184, 192 (1964).

Such an exacting approach is not necessary here, however, for two readily apparent reasons. First, the distinctions made by Illinois’ absentee provisions are not drawn on the basis of wealth or race. Secondly, there is nothing in the record to indicate that the Illinois statutory scheme has an impact on appellants’ ability to exercise the fundamental right to vote. It is thus not the right to vote that is at stake here but a claimed right to receive absentee ballots. Despite appellants’ claim to the contrary, the absentee statutes, which are designed to make voting more available to some groups who cannot easily get to the polls, do not themselves deny appellants the exercise of the franchise; nor, indeed, does Illinois’ Election Code so operate as a whole, for the State’s statutes specifically disenfranchise only those who have been convicted and sentenced, and not those similarly situated to appellants. Ill. Rev. Stat., c. 46, § 3-5 (1967). Faced as we are with a constitutional question, we cannot lightly assume, with nothing in the record to support such an assumption, that Illinois has in fact precluded appellants from voting. We are then left with the more traditional standards for evaluating appellants’ equal protection claims. Though the wide leeway allowed the States by the Fourteenth Amendment to enact legislation that appears to affect similarly situated people differently, and the presumption of statutory validity that adheres thereto, admit of no settled formula, some basic guidelines have been firmly fixed. The distinctions drawn by a challenged statute must bear some rational relationship to a legitimate state end and will be set aside as violative of the Equal Protection Clause only if based on reasons totally unrelated to the pursuit of that goal. Legislatures are presumed to have acted constitutionally even if source materials normally resorted to for ascertaining their grounds for action are otherwise silent, and their statutory classifications will be set aside only if no grounds can be conceived to justify them. See McGowan v. Maryland, 366 U. S. 420 (1961); Kotch v. Board of River Port Pilot Commissioners, 330 U. S. 552 (1947); Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61 (1911). With this much discretion, a legislature traditionally has been allowed to take reform “one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind,” Williamson v. Lee Optical of Oklahoma, Inc., 348 U. S. 483, 489 (1955) ; and a legislature need not run the risk of losing an entire remedial scheme simply because it failed, through inadvertence or otherwise, to cover every evil that might conceivably have been attacked. See Ozan Lumber Co. v. Union County National Bank, 207 U. S. 251 (1907).

Since there is nothing to show that a judicially incapacitated, pretrial detainee is absolutely prohibited from exercising the franchise, it seems quite reasonable for Illinois’ Legislature to treat differently the physically handicapped, who must, after all, present affidavits from their physicians attesting to an absolute inability to appear personally at the polls in order to qualify for an absentee ballot. Illinois could, of course, make voting easier for all concerned by extending absentee voting privileges to those in appellants’ class. Its failure to do so, however, hardly seems arbitrary, particularly in view of the many other classes of Illinois citizens not covered by the absentee provisions, for whom voting may be extremely difficult, if not practically impossible.

Similarly, the different treatment accorded unsen-tenced inmates incarcerated within and those incarcerated without their resident counties may reflect a legislative determination that without the protection of the voting booth, local officials might be too tempted to try to influence the local vote of in-county inmates. Such a temptation with its attendant risks to prison discipline would, of course, be much less urgent with prisoners incarcerated out of state or outside their resident counties. Constitutional safeguards are not thereby offended simply because some prisoners, as a result, find voting more convenient than appellants.

We are satisfied then that appellants’ challenge to the allegedly unconstitutional incompleteness of Illinois’ absentee voting provisions cannot be sustained. Ironically, it is Illinois’ willingness to go further than many States in extending the absentee voting privileges so as to include even those attending to election duties that has provided appellants with a basis for arguing that the provisions operate in an invidiously discriminatory fashion to deny them a more convenient method of exercising the franchise. Indeed, appellants’ challenge seems to disclose not an arbitrary scheme or plan but, rather, the very opposite — a consistent and laudable state policy of adding, over a 50-year period, groups to the absentee coverage as their existence comes to the attention of the legislature. That Illinois has not gone still further, as perhaps it might, should not render void its remedial legislation, which need not, as we have stated before, “strike at all evils at the same time.” Semler v. Dental Examiners, 294 U. S. 608, 610 (1935).

Accordingly, the judgment of the District Court is

Affirmed.

Mr. Justice Harlan and Mr. Justice Stewart concur in the result.

       At the time of bringing suit, appellant McDonald was being held without bail on a charge of murder; his subsequent trial resulted in a hung jury, and he then pleaded to a reduced charge of manslaughter, a bailable offense. Appellant Byrd, who was discharged after his robbery complaint was dismissed at his preliminary hearing, had been held because of his inability to post a $5,000 bond.

       Section 19-1 of the Illinois Election Code identifies those persons who can apply for absentee ballots. Section 19-2 provides for the time and manner in which such application must be made, including the requirement that affidavits from a licensed attending physician or a Christian Science practitioner accompany applications from those physically incapacitated. Section 19-3 sets out the format of the applications and accompanying affidavits. In addition to their allegations that these provisions violate equal protection, appellants also sought below a ruling that appellee Board, in interpreting these laws, had misconstrued them not to include judicially incapacitated persons. Reading § 19-1 together with § 19-2, the District Court concluded that appellants were not included within the coverage of the provisions, and this statutory construction is not challenged here.

       Appellants do not challenge the provisions setting out the time within which the applications must be made and thus concede that those persons incarcerated just prior to election day are not entitled to an absentee ballot.

       The grant of temporary relief was based in part on an earlier suit brought by appellant McDonald in the District Court for such equitable relief as would allow him to vote in the February 28, 1967, primary and aldermanie election in Chicago. In ordering the Board to furnish appellant with an absentee ballot for that election, the one-judge court noted that Illinois statutes specifically disenfranchised only those who were convicted and sentenced (Ill. Rev. Stat., c. 46, §3-5 (1967)), that persons awaiting trial in jails in counties other than their resident counties could qualify for an absentee ballot as one “absent from the county in which he is a qualified elector/' and that the Illinois Legislature did not intend to exclude individuals in appellant’s circumstances from among those “physically incapacitated.” McDonald v. Board of Election Commissioners of Chicago, 265 F. Supp. 816 (1967).

       Ill. Rev. Stat., c. 46, §§ 29A-1, 29A-5 (1967), provide for penalties of up to five years’ imprisonment, or a fine not to exceed $5,000, or both, for violating the Illinois Election Code. Although tkere are no controlling Illinois cases, neither party contends here that the absentee ballot provisions are permissive only, allowing the grant of absentee ballots to any one not specified in the statute.

       Appellants agree that the record is barren of any indication that the State might not, for instance, possibly furnish the jails with special polling booths or facilities on election day, or provide guarded transportation to the polls themselves for certain inmates, or entertain motions for temporary reductions in bail to allow some inmates to get to the polls on their own.

       Appellants make two additional claims here, which were asserted below and which are unrelated to their argument based on the statute and its alleged denial of equal protection. They allege first that, wholly apart from the absentee provisions, they are constitutionally entitled to cast their ballots by mail in order to avoid an impermissible consequence of pretrial detention. They argue that of all voters they are the only class forcibly restrained by the State from attending the polls in person; and they contend that they should get an absentee ballot only because Illinois has set up such a system, obviating any necessity to march them to the polls under armed guard — a procedure they concede would be disruptive and expensive. Appellants claim secondly that to the extent that they cannot afford the posted bail, they are being denied their right to vote solely because of their indigency, contrary to Harper v. Virginia Board of Elections, 383 U. S. 663 (1966). Since there is nothing in the record to show that appellants are in fact absolutely prohibited from voting by the State, see n. 6, supra, we need not reach these two contentions.

       A number of identifiable groups are not yet entitled to vote absentee under Illinois legislation: those serving on juries within the county of their residence, mothers with children who cannot afford a baby sitter, persons attending ill relations within their own county, servicemen stationed in their own counties, doctors who are often called on to do emergency work, and businessmen called away from their precincts on business. On the other hand, any person in the above groups, including an unsentenced prisoner, presumably can get an absentee ballot if he is outside his resident county, ill, or observing a religious holiday.

       Only three other States make provision for election duties, and 14 others for religious observance. Several States have gone further than Illinois, Wisconsin making provision for jury duty, Wis. Stat. § 6.85 (1967), and Alaska, California, and Oregon making provision for inaccessibility of polls, Alaska Stat. § 15.20.010 (1962), Cal. Elections Code § 14620 (1961), Ore. Rev. Stat. §§ 253.010 (l)(a), 253.510 (1965). Maine appears to be the only State to allow the absentee ballot for absence from the polls for any “sufficient” reason, Me. Rev. Stat. Ann., Tit. 21, §§ 1251, 1306 (1964).
      On the other hand, all States make provisions for the Armed Forces, either expressly or impliedly. All but five States have extended the ballot to the physically disabled, and only six require absence from the State, rather than county or precinct, as a condition. See appellants’ survey of state laws submitted after argument.


author: Per Curiam.

text:
    BURTON et al. v. SILLS, ATTORNEY GENERAL OF NEW JERSEY, et al.
    No. 1158.
    Decided April 28, 1969.

      William E. Ozzard for appellants.

      Arthur J. Sills, Attorney General of New Jersey, pro se, Marilyn Loftus Schauer, Acting First Assistant Attorney General, and Stephen Skillman, Deputy Attorney General, for appellees.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question.

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


text:
    SULLIVAN v. ALABAMA STATE BAR et al.
    No. 1170.
    Decided April 28, 1969.

      Fred Blanton, Jr., for appellant.

      Truman Hobbs for appellees.
   Per Curiam.

The motion to affirm is granted and the judgment is affirmed.


text:
    LOMBARDY et al. v. PETER KIEWIT SONS’ CO. et al.
    No. 1168.
    Decided April 28, 1969.

      Hyman Goldman for appellants.

      Henry F. Walker for Peter Kiewit Sons’ Co., and Jack M. Miller and Robert L. Meyer for the State of California, appellees.
   Per Curiam.

The motions to dismiss are 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.

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


author: Mr. Justice Douglas, Mr. Justice Stewart,

text:
    MOORE et al. v. OGILVIE, GOVERNOR OF ILLINOIS, et al.
    No. 620.
    Argued March 27, 1969.
    Decided May 5, 1969.

      Richard F. Watt argued the cause for appellants. With him on the brief were Richard L. Mandel and Ira A. Kipnis.

      John J. O’Toole and Richard E. Friedman, Assistant Attorneys General of Illinois, argued the cause for appellees. With them on the brief was William J. Scott, Attorney General.
   Opinion of the Court by

Mr. Justice Douglas,

announced by Mr. Justice Brennan.

This is a suit for declaratory relief and for an injunction, 28 U. S. C. §§ 2201, 2202, brought by appellants who are independent candidates for the offices of electors of President and Vice President of the United States from Illinois. The defendants or appellees are members of the Illinois Electoral Board. Ill. Rev. Stat., c. 46, §§ 7-14. In 1968 appellants filed with appellees petitions containing the names of 26,500 qualified voters who desired that appellants be nominated. The appellees ruled that appellants could not be certified to the county clerks for the November 1968 election because of a proviso added in 1935 to an Illinois statute requiring that at least 25,000 electors sign a petition to nominate such candidates. The proviso reads:

“that included in the aggregate total of 25,000 signatures are the signatures of 200 qualified voters from each of at least 50 counties.” Ill. Rev. Stat., c. 46, § 10-3 (1967).

A three-judge District Court was convened, 28 U. S. C. §§ 2281, 2284, which, feeling bound by MacDougall v. Green, 335 U. S. 281, dismissed the complaint for failure to state a cause of action. 293 E. Supp. 411. The case is here on appeal. 28 U. S. C. § 1253.

On October 8, 1968, the same day the case was docketed, appellants filed a motion to advance and expedite the hearing and disposition of this cause. Ap-pellees opposed the motion. On October 14, 1968, we entered the following order:

“Because of the representation of the State of Illinois that ‘it would be a physical impossibility’ for the State ‘to effectuate the relief which the appellants seek,’ the ‘Motion to Advance and Expedite the Hearing and Disposition of this Cause' is denied. Mr. Justice Fortas would grant the motion.” 393 U. S. 814.

Appellees urged in a motion to dismiss that since the November 5, 1968, election has been held, there is no possibility of granting any relief to appellants and that the appeal should be dismissed. But while the 1968 election is over, the burden which MacDougall v. Green, supra, allowed to be placed on the nomination of candidates for statewide offices remains and controls future elections, as long as Illinois maintains her present system as she has done since 1935. The problem is therefore “capable of repetition, yet evading review,” Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U. S. 498, 515. The need for its resolution thus reflects a continuing controversy in the federal-state area where our “one man, one vote” decisions have thrust. We turn then to the merits.

MacDougall v. Green is indistinguishable from the present controversy. The allegations in that case were that 52% of the State’s registered voters were residents of Cook County alone, 87 % were residents of the 49 most populous counties, and only 13% resided in the 53 least populous counties. The argument was that a nominating procedure so weighted violates the Equal Protection Clause.

Today, in contrast, 93.4% of the State’s registered voters reside in the 49 most populous counties, and only 6.6% are resident in the remaining 53 counties. The constitutional argument, however, remains the same.

Five members of the Court held in MacDougall that a State has “the power to assure a proper diffusion of political initiative as between its thinly populated counties and those having concentrated masses, in view of the fact that the latter have practical opportunities for exerting their political weight at the polls not available to the former.” 335 U. S., at 284. Three members of the Court dissented on the ground that the nominating procedure violated the Equal Protection Clause. One member of the Court voted not to exercise this Court’s jurisdiction in equity to resolve the dispute.

While the majority cited Colegrove v. Green, 328 U. S. 549, as their authority for denying relief and while a few who took part in Colegrove put this type of question in the “political” as distinguished from the “justiciable” category, 328 U. S., at 552, that matter was authoritatively resolved in Baker v. Carr, 369 U. S. 186, 202. When a State makes classifications of voters which favor residents of some counties over residents of other counties, a justiciable controversy is presented. 369 U. S., at 198-204.

When we struck down the Georgia county-unit system in statewide primary elections, we said:

“How then can one person be given twice or ten times the voting power of another person in a statewide election merely because he lives in a rural area or because he lives in the smallest rural county? Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote — whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit. This is required by the Equal Protection Clause of the Fourteenth Amendment.” Gray v. Sanders, 372 U. S. 368, 379.

Reynolds v. Sims, 377 U. S. 533, held that a State in an apportionment of state representatives and senators among districts and counties could not deprive voters in the more populous counties of their proportionate share of representatives and senators.

“The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government. And the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” 377 U. S., at 555.

We have said enough to indicate why MacDougall v. Green is out of line with our recent apportionment cases. The use of nominating petitions by independents to obtain a place on the Illinois ballot is an integral part of her elective system. See People v. Election Commissioners, 221 Ill. 9, 18, 77 N. E. 321, 323. All procedures used by a State as an integral part of the election process must pass muster against the charges of discrimination or of abridgment of the right to vote. United States v. Classic, 313 U. S. 299, 314-318; Smith v. Allwright, 321 U. S. 649, 664.

Dusch v. Davis, 387 U. S. 112, is not relevant to the problem of this case. There each councilman was required to be a resident of the borough from which he was elected. Like the residence requirement for state senators from a multi-district county (Fortson v. Dorsey, 379 U. S. 433), the place of residence did not mark the voting unit; for in Dusch all the electors in the city voted for each councilman.

It is no answer to the argument under the Equal Protection Clause that this law was designed to require statewide support for launching a new political party rather than support from a few localities. This law applies a rigid, arbitrary formula to sparsely settled counties and populous counties alike, contrary to the constitutional theme of equality among citizens in the exercise of their political rights. The idea that one group can be granted greater voting strength than another is hostile to the one man, one vote basis of our representative government.

Under this Illinois law the electorate in 49 of the counties which contain 93.4% of the registered voters may not form a new political party and place its candidates on the ballot. Yet 25,000 of the remaining 6.6% of registered voters properly distributed among the 53 remaining counties may form a new party to elect candidates to office. This law thus discriminates against the residents of the populous counties of the State in favor of rural sections. It, therefore, lacks the equality to which the exercise of political rights is entitled under the Fourteenth Amendment.

MacDougall v. Green is overruled.

7 Reversed.

Mr. Justice Stewart,

with whom Mr. Justice Hablan joins,

dissenting.

I cannot join in the Court’s casual extension of the “one voter, one vote” slogan to a case that involves neither voters, votes, nor even an ongoing dispute.

First of all, the case is moot. The appellants brought this action merely as prospective “candidates for the offices of Electors of President and Vice-President of the United States from the State of Illinois to be voted on at the general election to be held on November 5, 1968.” But the 1968 election is now history, and no relief relating to its outcome is sought. In the absence of any assertion that the appellants intend to participate as candidates in any future Illinois election, the Court’s reference to cases involving “continuing controversies” between the parties is wide of the mark. Cf. Golden v. Zwickler, ante, p. 103. There simply remains no judicially cognizable dispute in this case. Since, however, the Court reaches a contrary conclusion, I shall indicate briefly the reasons for my disagreement with its holding on the merits.

The legislative apportionment cases, upon which the Court places its entire reliance, were decided on the theory that voters residing in “underrepresented” electoral districts were denied equal protection.

“Overweighting and overvaluation of the votes of those living here has the certain effect of dilution and undervaluation of the votes of those living there.” Reynolds v. Sims, 377 U. S. 533, 563.

In this case, by contrast, the appellants have sued merely as prospective candidates for office. They claim no impairment whatever of any interests they might have as voters; indeed, their complaint contains no allegation that any of them is in fact a qualified Illinois voter. Undeterred by the appellants’ failure to explain how or as against whom they themselves are denied equal protection, however, the Court reaches out to hold that this statute “discriminates against the residents of the populous counties of the State in favor of rural sections.” But since no “residents of the populous counties of the State” have asserted any rights, the Court’s decision represents at best an advisory vindication of interests not involved in this case.

Even if the interests of voters in Illinois’ “populous counties” were actually represented here, the Court’s conclusion would still be completely unjustified. Reynolds v. Sims, supra, and its offspring at least involved situations in which the “debasement” or “dilution” of voting power found by the Court was the “certain” result of population variations among electoral districts. Under the Illinois statute now before us, however, no injury whatever is suffered by voters in heavily populated areas so long as their favored candidates are able to secure places on the ballot. And there is absolutely no indication in the record that the appellants could not, if they had made the effort, have easily satisfied Illinois’ 50-county, 200-signature requirement. Indeed, there is no suggestion that the counties from which the appellants drew their support were “populous” rather than “rural.” The rationale of Reynolds v. Sims simply does not control this case.

Any reliance by the Court on Williams v. Rhodes, 393 U. S. 23, would also be misplaced. That case involved an Ohio requirement that new political parties secure the support of over 433,000 persons — 15% of the electorate— before their candidates could appear on the ballot. Here, the 25,000 signatures required by Illinois represent only about one-half of one percent of the total number of Illinois voters — a percentage requirement permissible, one would hope, under any view of the Rhodes case. Nor do the appellants make any showing that securing 200 signatures in less than half of the State’s counties would be a burden at all comparable to that involved in Williams v. Rhodes.

The Court held in MacDougall v. Green, 335 U. S. 281, in sustaining the very statutory requirement here at issue, that Illinois had pursued an “allowable State policy [of] requiring] that candidates for state-wide office should have support not limited to a concentrated locality.” Id., at 283. That conclusion seems to me to be no less sound today than it was at the time of the MacDougall decision. Illinois’ policy is, in fact, not at all unlike that upheld by the Court only two Terms ago in Dusch v. Davis, 387 U. S. 112, in which a district-residence requirement imposed upon municipal officers despite population variations among districts was nevertheless held proper as reasonably “reflect [ing] a detente between urban and rural communities . . . .” Id., at 117. Cf. Lucas v. Forty-Fourth General Assembly, 377 U. S. 713, 744 (Stewart, J., dissenting); Reynolds v. Sims, supra, at 689 (Harlan, J., dissenting).

I respectfully dissent.

        MacDougall involved Ill. Rev. Stat., c. 46, § 10-2, relating to ballot position for candidates of new political parties; Ill. Rev. Stat., c. 46, § 10-3, involved here, imposes identical signature requirements for independent candidates.

       While MacDougall involved candidates for various offices, the appellants here all sought election as presidential electors. See U. S. Const., Art. II, § 1:
      “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress . . . .” (Emphasis added.)


author: Mr. Justice Harlan

text:
    KRAMER v. CARIBBEAN MILLS, INC.
    No. 156.
    Argued January 23, 1969.
    Decided May 5, 1969.

      Eugene Gressman argued the cause for petitioner. With him on the briefs was Jack Banner.

      Dennis G. Lyons argued the cause for respondent. With him on the brief was Morris Harrell.

   Mr. Justice Harlan

delivered the opinion of the Court.

The sole question presented by this case is whether the Federal District Court in which it was brought had jurisdiction over the cause, or whether that court was deprived of jurisdiction by 28 U. S. C. § 1359. That section provides:

“A district court shall not have jurisdiction of a civil action in which any party, by assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of such court.”

The facts were these. Respondent Caribbean Mills, Inc. (Caribbean) is a Haitian corporation. In May 1959 it entered into a contract with an individual named Kelly and the Panama and Venezuela Finance Company (Panama), a Panamanian corporation. The agreement provided that Caribbean would purchase from Panama 125 shares of corporate stock, in return for payment of $85,000 down and an additional $165,000 in 12 annual installments.

No installment payments ever were made, despite requests for payment by Panama. In 1964, Panama assigned its entire interest in the 1959 contract to petitioner Kramer, an attorney in Wichita Falls, Texas. The stated consideration was $1. By a separate agreement dated the same day, Kramer promised to pay back to Panama 95% of any net recovery on the assigned cause of action, “solely as a Bonus.”

Kramer soon thereafter brought suit against Caribbean for $165,000 in the United States District Court for the Northern District of Texas, alleging diversity of citizenship between himself and Caribbean. The District Court denied Caribbean’s motion to dismiss for want of jurisdiction. The case proceeded to trial, and a jury returned a $165,000 verdict in favor of Kramer.

On appeal, the Court of Appeals for the Fifth Circuit reversed, holding that the assignment was “improperly or collusively made” within the meaning of 28 U. S. C. § 1359, and that in consequence the District Court lacked jurisdiction. We granted certiorari, 393 U. S. 819 (1968). For reasons which follow, we affirm the judgment of the Court of Appeals.

I.

The issue before us is whether Kramer was “improperly or collusively made” a party “to invoke the jurisdiction” of the District Court, within the meaning of 28 U. S. C. § 1359. We look first to the legislative background.

Section 1359 has existed in its present form only since the 1948 revision of the Judicial Code. Prior to that time, the use of devices to create diversity was regulated by two federal statutes. The first, known as the “assignee clause,” provided that, with certain exceptions not here relevant:

“No district court shall have cognizance of any suit ... to recover upon any promissory note or other chose in action in favor of any assignee, . . . unless such suit might have been prosecuted in such court ... if no assignment had been made.”

The second pre-1948 statute, 28 U. S. C. § 80 (1940 ed.), stated that a district court should dismiss an action whenever:

“it shall appear to the satisfaction of the . . . court . . . that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of [the] court, or that the parties to said suit have been improperly or collu-sively made or joined ... for the purpose of creating [federal jurisdiction].”

As part of the 1948 revision, § 80 was amended to produce the present § 1359. The assignee clause was simultaneously repealed. The Reviser’s Note describes the amended assignee clause as a “ ‘jumble of legislative jargon,’ ” and states that “[t]he revised section changes this clause by confining its application to cases wherein the assignment is improperly or collusively made .... Furthermore, . . . the original purpose of [the assignee] clause is better served by substantially following section 80.” That purpose was said to be “to prevent the manufacture of Federal jurisdiction by the device of assignment.” Ibid.

II.

Only a small number of cases decided under § 1359 have involved diversity jurisdiction based on assignments, and this Court has not considered the matter since the 1948 revision. Because the approach of the former assignee clause was to forbid the grounding of jurisdiction upon any assignment, regardless of its circumstances or purpose, decisions under that clause are of little assistance. However, decisions of this Court under the other predecessor statute, 28 U. S. C. § 80 (1940 ed.), seem squarely in point. These decisions, together with the evident purpose of § 1359, lead us to conclude that the Court of Appeals was correct in finding that the assignment in question was “improperly or collusively made.”

The most compelling precedent is Farmington v. Pillsbury, 114 U. S. 138 (1885). There Maine holders of bonds issued by a Maine village desired to test the bonds’ validity in the federal courts. In an effort to accomplish this, they cut the coupons from their bonds and transferred them to a citizen of Massachusetts, who gave in return a non-negotiable two-year note for $500 and a promise to pay back 50% of the net amount recovered above $500. The jurisdictional question was certified to this Court, which held that there was no federal jurisdiction because the plaintiff had been “improperly or collusively” made a party within the meaning of the predecessor statute to 28 U. S. C. § 80 (1940 ed.). The Court pointed out that the plaintiff could easily have been released from his non-negotiable note, and found that apart from the hoped-for creation of federal jurisdiction the only real consequence of the transfer was to enable the Massachusetts plaintiff to “retain one-half of what he collects for the use of his name and his trouble in collecting.” 114 U. S., at 146. The Court concluded that “the transfer of the coupons was ‘a mere contrivance, a pretence, the result of a collusive arrangement to create’ ” federal jurisdiction. Ibid.

We find the case before us indistinguishable from Farmington and other decisions of like tenor. When the assignment to Kramer is considered together with his total lack of previous connection with the matter and his simultaneous reassignment of a 95% interest back to Panama, there can be little doubt that the assignment was for purposes of collection, with Kramer to retain 5% of the net proceeds “for the use of his name and his trouble in collecting.” If the suit had been unsuccessful, Kramer would have been out only $1, plus costs. Moreover, Kramer candidly admits that the “assignment was in substantial part motivated by a desire by [Panama’s] counsel to make diversity jurisdiction available . . . .”

The conclusion that this assignment was “improperly or collusively made” within the meaning of § 1359 is supported not only by precedent but also by consideration of the statute’s purpose. If federal jurisdiction could be created by assignments of this kind, which are easy to arrange and involve few disadvantages for the assignor, then a vast quantity of ordinary contract and tort litigation could be channeled into the federal courts at the will of one of the parties. Such “manufacture of Federal jurisdiction” was the very thing which Congress intended to prevent when it enacted § 1359 and its predecessors.

III.

Kramer nevertheless argues that the assignment to him was not “improperly or collusively made” within the meaning of § 1359, for two main reasons. First, he suggests that the undisputed legality of the assignment under Texas law necessarily rendered it valid for purposes of federal jurisdiction. We cannot accept this contention. The existence of federal jurisdiction is a matter of federal, not state, law. See, e. g., Missouri P. R. Co. v. Fitzgerald, 160 U. S. 556, 582 (1896). Under the predecessor section, 28 U. S. C. § 80 (1940 ed.), this Court several times held that an assignment could be “improperly or collusively made” even though binding under state law, and nothing in the language or legislative history of § 1359 suggests that a different result should be reached under that statute. Moreover, to accept this argument would render § 1359 largely incapable of accomplishing its purpose; this very case demonstrates the ease with which a party may “manufacture” federal jurisdiction by an assignment which meets the requirements of state law.

Second, Kramer urges that this case is significantly distinguishable from earlier decisions because it involves diversity jurisdiction under 28 U. S. C. § 1332 (a)(2), arising from the alienage of one of the parties, rather than the more common diversity jurisdiction based upon the parties’ residence in different States. We can perceive no substance in this argument: by its terms, § 1359 applies equally to both types of diversity jurisdiction, and there is no indication that Congress intended them to be treated differently.

IV.

In short, we find that this assignment falls not only within the scope of § 1359 but within its very core. It follows that the District Court lacked jurisdiction to hear this action, and that petitioner must seek his remedy in the state courts. The judgment of the Court of Appeals is

Affirmed.

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

       That is, Kramer would receive 5%, and Panama 95%, of the net proceeds remaining after payment of attorneys’ fees and expenses of litigation.

       Title 28 U. S. C. § 1332 (a) (2) grants district courts original jurisdiction of civil actions in which the matter in controversy exceeds $10,000 and is between “citizens of a State, and foreign states or citizens or subjects thereof . . . .” The District Court would have had no jurisdiction of a suit brought by Panama against Caribbean, since both were alien corporations.

       28 U. S. C. § 41 (1) (1940 ed.). The clause first appeared as § 11 of the Judiciary Act of 1789, 1 Stat. 79.

       This statute was first enacted in 1875. See 18 Stat. 470.

       The quotation is from a Comment, Chaos of Jurisdiction in the Federal District Courts, 35 Ill. L. Rev. 566, 569 (1941); it refers primarily to the obscure wording of certain exceptions contained in the clause. See id., at 569-571.

       See cases cited in 3A J. Moore, Federal Practice ¶ 17.05 [3.-1], nn. 7-9 (2d ed. 1968).

       There were exceptions for particular types of assignments, none of which is relevant here.

       See, e. g., Williams v. Nottawa, 104 U. S. 209 (1881); Little v. Giles, 118 U. S. 596 (1886).

       Hence, we have no occasion to re-examine the cases in which this Court has held that where the transfer of a claim is absolute, with the transferor retaining no interest in the subject matter, then the transfer is not “improperly or collusively made,” regardless of the transferor’s motive. See, e. g., Cross v. Allen, 141 U. S. 528 (1891) ; South Dakota v. North Carolina, 192 U. S. 286 (1904); Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U. S. 518 (1928); cf. Williamson v. Osenton, 232 U. S. 619 (1914).
      Nor is it necessary to consider whether, in cases in which suit is required to be brought by an administrator or guardian, a motive to create diversity jurisdiction renders the appointment of an out-of-state representative “improper” or “collusive.” See, e. g., McSparran v. Weist, 402 F. 2d 867 (1968); Lang v. Elm City Constr. Co., 324 F. 2d 235 (1963); County of Todd v. Loegering, 297 F. 2d 470 (1961); cf. Mecom v. Fitzsimmons Drilling Co., 284 U. S. 183 (1931). Cases involving representatives vary in several respects from those in which jurisdiction is based on assignments: (1) in the former situation, some representative must be appointed before suit can be brought, while in the latter the assignor normally is himself capable of suing in state court; (2) under state law, different kinds of guardians and administrators may possess discrete sorts of powers; and (3) all such representatives owe their appointment to the decree of a state court, rather than solely to an action of the parties. It is not necessary to decide whether these distinctions amount to a difference for purposes of § 1359.

       Brief for Petitioner 16.

       See, e. g., Little v. Giles, 118 U. S. 596, 602 (1886); Lehigh Mining & Mfg. Co. v. Kelly, 160 U. S. 327, 336 (1895); cf. Smith v. Kernochen, 7 How. 198, 215-216 (1849).

         Petitioner asks that we make our ruling prospective only, asserting that he reasonably believed he had a right to invoke federal jurisdiction, and that the four-year Texas statute of limitations governing contract actions, Tex. Rev. Civ. Stat., Art. 5527 (1948), may bar him from recovering in the state courts as to some of the installments allegedly due him. However, another Texas statute, Tex. Rev. Civ. Stat., Art. 5539a (1948), provides:
      "When ... a judgment . . . shall be set aside or annulled in a direct proceeding, because of a want of jurisdiction of the Trial Court . . . and within sixty (60) days after such dismissal . . . becomes final, such action shall be commenced in a Court of Proper Jurisdiction, the period between the date of first filing and that of commencement in the second Court shall not be counted as a part of the period of limitation unless the opposite party shall . . . show the first filing to have been in intentional disregard of jurisdiction.”
      This statute has been held to apply when the dismissal on jurisdictional grounds was by a federal court. See, e. g., Burford v. Sun Oil Co., 186 S. W. 2d 306 (Ct. Civ. App. Tex. 1944). Petitioner alleges that the first contract installment accrued on July 1, 1962. Hence, Art. 5539a appears to assure him a full state-court remedy, and thus obviates the need for further discussion of prospectivity.


author: Per Curiam. Mr. Justice Harlan, Mr. Justice Black,

text:
    HALLIDAY v. UNITED STATES.
    No. 642,
    Misc.
    Decided May 5, 1969.

      Laurence M. Johnson for petitioner.

      Solicitor General Griswold, Assistant Attorney General Vinson, Jerome M. Feit, and Mervyn Hamburg for the United States.
   Per Curiam.

The motion to proceed in forma pauperis is granted. The petition for a writ of certiorari is also granted, limited to one issue: Should petitioner’s conviction be reversed because the United States District Judge who accepted his guilty plea failed to comply with Rule 11 of the Federal Rules of Criminal Procedure? In our recent decision of McCarthy v. United States, ante, p. 459, we held that when a guilty plea is accepted in violation of Rule 11 the defendant must be afforded an opportunity to plead anew. Petitioner’s plea was entered in 1954. The question we must decide, therefore, is whether McCarthy should be applied to guilty pleas accepted prior to the date of that decision. We hold that it should not.

After an evidentiary hearing on October 17, 1967, petitioner’s motion to set aside his sentence under 28 U. S. C. § 2255 was denied by the United States District Court for the District of Massachusetts. The United States Court of Appeals for the First Circuit affirmed per curiam. Although it acknowledged that the District Court had not complied with Rule 11 when it accepted petitioner’s plea, it held that he was not entitled to relief because “ample evidence” supported the District Court’s finding that the Government had met its burden of demonstrating that petitioner entered his plea voluntarily with an understanding of the nature of the charges against him.

In deciding whether to apply newly adopted constitutional rulings retroactively, we have considered three criteria: (1) the purpose of the new rule; (2) the extent of reliance upon the old rule; and (3) the effect retroactive application would have upon the administration of justice. E. g., Desist v. United States, ante, p. 244; Stovall v. Denno, 388 U. S. 293 (1967); Johnson v. New Jersey, 384 U. S. 719 (1966). In McCarthy we took care to note that our holding was based solely upon the application of Rule 11 and not upon constitutional grounds. Nevertheless, it is appropriate to analyze the question of that decision’s retroactivity in terms of the same criteria we have employed to determine whether constitutionally grounded decisions that depart from precedent should be applied retroactively. See Linkletter v. Walker, 381 U. S. 618, 622-629 (1965).

The rule we adopted in McCarthy has two purposes: (1) to insure that every defendant who pleads guilty is afforded Rule ll’s procedural safeguards, which are designed to facilitate the determination of the voluntariness of his plea; (2) to provide a complete record at the time the plea is entered of the factors relevant to this determination, thereby facilitating a more expeditious disposition of a post-conviction attack on the plea. Unquestionably, strict compliance with Rule 11 enhances the reliability of the voluntariness determination, and we have retroactively applied constitutionally grounded rules of criminal procedure designed to correct “serious flaws in the fact-finding process at trial.” Stovall v. Denno, supra, at 298. However, a defendant whose plea has been accepted without full compliance with Rule 11 may still resort to appropriate post-conviction remedies to attack his plea’s voluntariness. Thus, if his plea was accepted prior to our decision in McCarthy, he is not without a remedy to correct constitutional defects in his conviction. Cf. Johnson v. New Jersey, supra, at 730. And as we pointed out in Stovall, the extent to which a “condemned practice infects the integrity of the truth-determining process . . . must ... be weighed against the prior justified reliance upon the old standard and the impact of retroactivity upon the administration of justice.” Stovall v. Denno, supra, at 298. In McCarthy we noted that the practice we were requiring had been previously followed by only one Circuit; that over 85% of all convictions in the federal courts are obtained pursuant to guilty pleas; and that prior to Rule ll’s recent amendment, not all district judges personally questioned defendants before accepting their guilty pleas. Thus, in view of the general application of Rule 11 in a manner inconsistent with our holding in McCarthy, and in view of the large number of constitutionally valid convictions that may have been obtained without full compliance with Rule 11, we decline to apply McCarthy retroactively. We hold that only those defendants whose guilty pleas were accepted after April 2, 1969, are entitled to plead anew if their pleas were accepted without full compliance with Rule 11.

Accordingly, the judgment of the Court of Appeals for the First Circuit is

Affirmed.

Mr. Justice Harlan,

concurring in the result.

McCarthy v. United States, ante, p. 459, announced no new constitutional or general procedural doctrine. That decision, on a matter of first impression in this Court, merely interpreted Rule 11 of the Federal Rules of Criminal Procedure, as amended effective July 1, 1966, and held that the rule must be strictly applied according to its terms. I see no reason why other federal prisoners whose pleas were accepted in plain violation of the requirements of the amended rule should be deprived of the relief accorded McCarthy. See generally my dissent in Desist v. United States, ante, p. 256. I would therefore apply the per se rule enunciated in McCarthy to all pleas entered on or after July 1, 1966.

While the amended Rule 11 requires the trial judge to follow specific procedures before accepting a plea of guilty, and was promulgated for that very purpose, see Notes of Advisory Committee on Rules, the pre-1966 Rule 11 was “substantially a restatement of existing law and practice,” ibid., and required only that the judge “determine” that the plea was made “voluntarily with understanding of the nature of the charge,” without, however, specifying a procedure for making this determination. Thus, in a pre-1966 proceeding, the trial judge may have relied on the circumstances surrounding a plea of guilty, without making a specific inquiry or findings, to conclude that the plea was voluntarily and understanding^ given.

I agree with the court below that the absence of an explicit inquiry may sometimes entitle the defendant to a subsequent hearing, pursuant to 28 U. S. C. § 2255, to determine whether the plea was in fact made voluntarily and understandingly. In view of the wholly inexplicit directives of the old rule, however, I believe that such a hearing suffices, and that a plea made under that rule should not automatically be set aside as in the case of a plea made under the 1966 rule — the situation in McCarthy.

Petitioner’s plea was accepted in 1954, without an explicit inquiry at that time whether it was voluntarily and understanding^ made. Petitioner moved to vacate the plea, and after a full hearing the District Court, 274 F. Supp. 737, 738-739 (1967), affirmed by the Court of Appeals, 394 F. 2d 149 (1968), determined that “the Government has sustained its burden of showing that at the time petitioner Halliday changed his plea he in fact did understand the nature of the three charges against him and that he changed his plea voluntarily, with full awareness of the consequences of the change of plea.”

On the basis of these findings, and not on any theory as to the nonretroactivity of McCarthy, I would affirm.

Mr. Justice Black,

with whom Mr. Justice Douglas joins,

dissenting.

I do not understand why there should be any discussion of the retroactivity of McCarthy v. United States, ante, p. 459, a decision of this Court this Term interpreting a Federal Rule of Criminal Procedure. If the rule’s relevant portions were in full force and effect when petitioner’s guilty plea was entered in 1954, then it should of course be enforced in this case; if not, the McCarthy decision simply has no application here at all. For this reason and for all others set out in my dissenting opinion in Linkletter v. Walker, 381 U. S. 618, 640 (1965), I would reverse the judgment below and order that petitioner’s guilty plea be vacated so that he may have an opportunity to plead again.


text:
    UNITED STATES v. LOUISIANA et al. (TEXAS BOUNDARY CASE).
    No. 9,
    Orig.
    Decided May 31, 1960,
    December 4,1967,
    and March 3, 1969.
    Decree Entered December 12, 1960.
    Supplemental Decree Entered May 5, 1969.
   For the purpose of giving effect to the conclusions of this Court as stated in its opinions announced December 4, 1967, and March 3, 1969, supplementing the decree entered herein on December 12, 1960, it is ordered, adjudged and decreed as follows:

1. As against the State of Texas, the United States is entitled to—

(a) All the lands, minerals and other natural resources underlying the Gulf of Mexico that are more than three marine leagues gulfward from the present or future coastline as referred to in § 2 (c) of the Submerged Lands Act, 67 Stat. 29, 43 U. S. C. § 1301 (c); and

(b) All the lands, minerals and other natural resources underlying the Gulf of Mexico, more than three geographical miles gulfward from the present or future coastline as referred to in § 2 (c) of the Submerged Lands Act, 43 U. S. C. § 1301 (c), that are gulfward of the following line:

Beginning at a point on the international boundary with Mexico (wherever that boundary may be located), three marine leagues gulfward from the point x = 2,447,033, y= 105,994 (Texas Plane Coordinate System, South Zone), latitude 25°57'05.90" N., longitude 97°08'22.85" W., and proceeding thence northwardly and eastwardly as follows:

The State of Texas is not entitled to any interest in such lands, minerals or resources, and said State, its privies, assigns, lessees and other persons claiming under it are hereby enjoined from interfering with the rights of the United States in such lands, minerals and resources.

2. As against the United States, with the exceptions provided by § 5 of the Submerged Lands Act, 43 U. S. C. § 1313, the State of Texas is entitled to—

(a) All the lands, minerals and other natural resources underlying the Gulf of Mexico, bounded on the south by the international boundary with Mexico and on the east by the western boundary of Louisiana and an extension thereof, that are within three geographical miles from the present or future coastline as referred to in § 2 (c) of the Submerged Lands Act, 43 U. S. C. § 1301 (c); and

(b) All the lands, minerals and other natural resources underlying the Gulf of Mexico, bounded on the south by the international boundary with Mexico and on the east by the western boundary of Louisiana and an extension thereof, less than three marine leagues gulfward from the present or future coastline as referred to in § 2 (c) of the Submerged Lands Act, 43 U. S. C. § 1301 (c), that are landward of the line described in paragraph 1 (b) hereof.

3. As used herein—

(a) “Geographical mile” means a distance of 1852 meters (6076.10333 . . . U. S. Survey Feet or approximately 6076.11549 International Feet) ;

(b) “Marine league” means a distance of three geographical miles;

(c) Plane coordinates refer to the Texas Coordinate Systems, South Zone or South Central Zone, as indicated.

(d) Latitudes and longitudes refer to the North American 1927 Datum.

(e) All distances referred to herein are expressed at grid scale, Texas Plane Coordinate Systems.

4. The Court retains jurisdiction to entertain such further proceedings, enter such orders, and issue such writs as may from time to time be deemed necessary or advisable to give proper force and effect to this decree, or to the decree of December 12, 1960, herein, or to effectuate the rights of the parties in the premises.

The Chief Justice and Mb. Justice Marshall took no part in the consideration or formulation of this Supplemental Decree.


text:
    SOUTHERN PACIFIC CO. v. PUBLIC UTILITIES COMMISSION OF CALIFORNIA.
    No. 1050.
    Decided May 5, 1969.

      Robert L. Pierce for appellant.

      Mary Moran Pajalich for appellee.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question.

Mr. Justice Black and Mr. Justice Douglas are of the opinion that probable jurisdiction should be noted.


text:
    SOUTHERN PACIFIC CO. v. PUBLIC UTILITIES COMMISSION OF CALIFORNIA et al.
    No. 1152.
    Decided May 5, 1969.

      Robert L. Pierce for appellant.

      Mary Moran Pajalich for appellee Public Utilities Commission of California.
   Per Curiam.

The motion to affirm is granted and the judgment is affirmed.

Mr. Justice Black and Mr. Justice Douglas are of the opinion that probable jurisdiction should be noted.


text:
    WAGGONER et al. v. ROSENN, SECRETARY OF PUBLIC WELFARE OF PENNSYLVANIA.
    No. 144,
    Misc.
    Decided May 5, 1969.

      William C. Sennett, Attorney General of Pennsylvania, and Edgar B. Casper, Deputy Attorney General, for appellee.
   Per Curiam.

The motion of appellants for leave to proceed in forma pauperis is granted. The judgment is vacated and the case is remanded to the United States District Court for the Middle District of Pennsylvania for further consideration in light of Shapiro v. Thompson, ante, p. 618.


text:
    RHODES v. KANSAS.
    No. 877,
    Misc.
    Decided May 5, 1969.

      Kent Frizzell, Attorney General of Kansas, and E. G. Collister, Jr., Deputy Attorney General, for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the District Court of Sedgwick County, Kansas, for further consideration in light of Smith v. Hooey, 393 U. S. 374.


text:
    ROBINSON et al. v. JOHNSON et al.
    No. 67.
    Decided May 5, 1969.

      William G. Clark, Attorney General of Illinois, Thomas E. Brannigan, Assistant Attorney General, John J. Stamos, and Daniel P. Coman for appellants.
   Per Curiam.

The judgment is affirmed.

Mr. Justice Black dissents for the reasons given in the dissenting opinion of The Chief Justice in Shapiro v. Thompson, ante, p. 644.

Mr. Justice Harlan dissents for the reasons given in his dissenting opinion in Shapiro v. Thompson, ante, p. 655.


text:
    MONTGOMERY, DIRECTOR, CALIFORNIA DEPARTMENT OF SOCIAL WELFARE, et al. v. BURNS et al.
    No. 438.
    Decided May 5, 1969.

      Thomas C. Lynch, Attorney General of California, and Elizabeth Palmer and Donald B. Day, Deputy Attorneys General, for appellants.
   Per Curiam.

The motion of appellees for leave to proceed in forma pauperis is granted. The motion to affirm is granted and the judgment is affirmed.

Mr. Justice Black dissents for the reasons given in the dissenting opinion of The Chief Justice in Shapiro v. Thompson, ante, p. 644.

Mr. Justice Harlan dissents for the reasons given in his dissenting opinion in Shapiro v. Thompson, ante, p. 655.


author: Per Curia-m.

text:
    NATIONAL TRAILER CONVOY, INC., et al. v. UNITED STATES et al.
    No. 1169.
    Decided May 5, 1969.

      William J. Lippman, Robert Joyner, and Roland Rice for appellants.

      Solicitor General Griswold, Assistant Attorney General McLaren, Robert W. Ginnane, and Raymond M. Zimmet for the United States et al., and William P. Sullivan and William P. Jackson, Jr., for appellee Contract Carrier Conference of American Trucking Assns., Inc.
   Per Curia-m.

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


text:
    March 10, 1969.
    No. —.
    Misc.
    No. 1637,
    Kaplysh et al. v. Hershey et al.; and Schwartz v. Local Board No. 23 et al.

      Ralph Rudd for applicants Kaplysh et al.

      Solicitor General Griswold for respondents in each case in opposition.
   C. A. 6th Cir. Applications for stays of induction presented to Mr. Justice Stewart, and by him referred to the Court, denied.

Mr. Justice Douglas is of the opinion that the stays should be granted.


text:
    No. 573.
    No. 691.
    National Labor Relations Board v. Gissel Packing Co., Inc., et al.; and Food Store Employees Union, Local No. 347, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO v. Gissel Packing Co., Inc.

      J. Albert Woll, Laurence Gold, and Thomas E. Harris on the motion.
   C. A. 4th Cir. [Certiorari granted, 393 U. S. 997.] Motion of American Federation of Labor & Congress of Industrial Organizations for leave to file a brief as amicus curiae granted.


text:
    No. 488.
    Daniel et al. v. Paul.
   C. A. 8th Cir. [Certiorari granted, 393 U. S. 975.] Request of the United States to participate in oral argument as amicus curiae granted and a total of 20 minutes allotted for that purpose. Counsel appointed to argue in support of judgment of lower court [393 U. S. 1061] shall likewise be allotted an additional 20 minutes to present oral argument in this case.


text:
    No. 1700,
    Misc.
    In re Disbarment of Sill.
   It is ordered that Norman E. Sill of Washington, District of Columbia, be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. 899.
    No. 942.
    No. 999.
    No. 1003.
    United States v. Interstate Commerce Commission et al.; Brundage et al. v. United States et al.; City of Auburn v. United States et al.; and Livingston Anti-Merger Committee v. Interstate Commerce Commission et al.

      Robert W. Ginnane, Fritz R. Kahn, and Jerome Nelson for the Interstate Commerce Commission on motion to advance and to dispense with printing appendix.

      Hugh B. Cox, Ray Garrett, D. Robert Thomas, Lee B. McTurnan, Anthony Kane, Louis E. Torinus, Earl F. Requa, Frank S. Farrell, Eldon Martin, and Richard J. Flynn for Great Northern Railway Co. et al. on motion to advance.

      Louis B. Dailey and Harry Tyson Carter for appellants Brundage et al. in opposition to motions to advance.
   Appeals from D. C. D. C. [Probable jurisdiction noted, 393 U. S. 1077.] Motions of certain appellees to advance and to dispense with printing appendix denied.

Mr. Justice Fortas took no part in the consideration or decision of these motions.


text:
    No. 1371,
    No. 1423,
    No. 1453,
    Misc.
    Misc.
    Misc.
    Mitchell v. Attorney General of the United States; Montano v. Turner, Warden; and Fournier v. Pinto, Prison Farm Superintendent.
   Motions for leave to file petitions for writs of habeas corpus denied.