author: Mr. Justice Black Mr. Justice Douglas,

text:
    BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN et al. v. CHICAGO, ROCK ISLAND & PACIFIC RAILROAD CO. et al.
    No. 16.
    Argued October 22, 1968.
    Decided November 18, 1968.

      James E. Youngdahl argued the cause for appellants in No. 16. Leslie Evitts, Chief Assistant Attorney General of Arkansas, argued the cause for appellants in No. 18. With them on the briefs were Joe Purcell, Attorney General of Arkansas, Robert D. Ross, and John P. Sizemore.

      Robert V. Light and Martin M. Lucente argued the cause for appellees in both cases. With them on the brief were W. J. Smith, H. H. Friday, and R. W. Yost.

      Together with No. 18, Hardin, Prosecuting Attorney, et al. v. Chicago, Rock Island & Pacific Railroad Co. et al., on appeal from the same court.

   Mr. Justice Black

delivered the opinion of the Court.

These cases raise the question whether the Arkansas “full-crew” laws, specifying a minimum number of employees who must serve as part of a train crew under certain circumstances, violate the Commerce Clause or the Fourteenth Amendment. The constitutionality of these Arkansas laws has been specifically upheld against challenges under the same constitutional provisions in three decisions of this Court, in 1911, in 1916, and again in 1931. In the present cases, however, the District Court found that as a result of economic and technical developments since our last decision on this subject, the statutes were no longer justified as safety measures, the ground on which they had formerly been sustained, and struck them down as contrary to the Commerce Clause of the Constitution and the Due Process Clause of the Fourteenth Amendment. 274 F. Supp. 294 (D. C. W. D. Ark. 1967). We noted probable jurisdiction, 390 U. S. 941 (1968). We disagree with the District Court’s holding that the railroads have shown a change in circumstances sufficient to justify departure from our three previous decisions. We therefore reaffirm those cases and reverse the judgment of the District Court.

The first of the two statutes challenged here was enacted in 1907, and this law makes it an offense for a railroad operating a line of more than 50 miles to haul a freight train consisting of more than 25 cars, unless the train has a crew of not “less than an engineer, a fireman, a conductor and three [3] brakemen . ...” The second statute, enacted in 1913, makes it an offense for any railroad with a line of 100 miles or more to engage in switching operations in cities of designated populations, with “less than one [1] engineer, a fireman, a foreman and three [3] helpers . ...” These two statutes, the constitutionality of which this Court previously upheld, are precisely the statutes here challenged and struck down. ;

This latest attack on these Arkansas laws was commenced by a group of interstate railroads operating in Arkansas which asked the United States District Court to declare the statutes unconstitutional and enjoin two Arkansas prosecuting attorneys, appellants here, from enforcing them. The railroad brotherhoods, also appellants here, were allowed to intervene in the District Court in order to defend the validity of the state statutes. In their complaint appellees charged that both statutes (1) operate in an “arbitrary, capricious, discriminatory and unreasonable” manner in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment; (2) unduly interfere with, burden, and needlessly increase the cost of interstate transportation in violation of the Commerce Clause, Art. I, § 8, cl. 3, of the Constitution, and contrary to the National Transportation Policy expressed in the Interstate Commerce Act; (3) discriminate against interstate commerce in favor of local or intrastate commerce; and (4) invade a field of federal legislation pre-empted by the Federal Government primarily through Pub. L. 88-108, passed by Congress in 1963 to avert a nationwide railroad strike. In its first opinion in these cases, the District Court granted the railroads’ motion for summary judgment, holding that the field of full-crew legislation was preempted by Pub. L. 88-108, 239 F. Supp. 1 (D. C. W. D. Ark. 1965), but we reversed on the pre-emption question, sub nom. Engineers v. Chicago, R. I. & P. R. Co., 382 U. S. 423 (1966). We also held that the railroads were not entitled to summary judgment on their alternative theory that because the effect of the mileage exemption in the two Acts is to free all of the State’s intrastate railroads from the full-crew requirements while ensuring coverage of most of the interstate railroads, the two Acts “constitute discriminatory legislation against interstate commerce in favor of intrastate commerce.” Id., at 437-438. On remand the District Court held an evidentiary hearing and, after compiling a voluminous record, found that the full-crew requirements had “no substantial effect on safety of operations,” placed “substantial financial burdens” upon the carriers, and caused “some delays” and interference with the continuity of railroad operations. On the basis of these findings the District Court held the Arkansas laws unconstitutional as impermissible burdens on interstate commerce and also ruled that because the laws were “unreasonable and oppressive” they violated the Due Process Clause of the Fourteenth Amendment. The court did not reach the railroads’ further argument that the Arkansas laws discriminate against interstate commerce in favor of intrastate commerce in violation of the Commerce and Equal Protection Clauses. Appellants challenge both the accuracy of the District Court’s findings and holdings and their relevance to adjudication of the constitutional issues presented. They ask us to hold that the Arkansas laws do not impermissibly burden interstate commerce or otherwise violate any provision of the Constitution.

I.

The question of crew size has been a subject of dispute between the railroads and their employees for more than half a century. Much of the controversy has of course been fought out by collective bargaining between the railroads and the unions. In many States attempts have been made to settle the controversy by legislation. The Arkansas statutes before us were passed in 1907 and 1913, along with a number of other laws designed to further railroad safety, such as headlight standards, regulations concerning the obstruction of train crossings, and so on. Many other States have also passed full-crew laws as parts of detailed codes regulating railroad safety. These safety codes, and the full-crew provisions in particular, have been subject to continual re-evaluation throughout the country. In New York, for example, the Public Service Commission in 1960 recommended total repeal of the State’s full-crew legislation, and in 1966 two of the three New York laws in the field were repealed, but the legislature explicitly rejected a proposal to repeal the third law, which requires both a fireman and an engineer to be on duty in the engine cab, in addition to the brakeman who serves in the cab on freight hauls. In Arkansas the railroad safety laws have similarly been subject to close scrutiny. Additional safety requirements have been added from time to time, and some safety requirements considered out of date have been repealed. With respect to the full-crew statutes specifically, a proposal to repeal these statutes was placed on the ballot for popular referendum in 1958 and was decisively defeated by the voters. Congress too has been concerned with the problem of the rules governing crew size and in 1963 passed a statute referring the dispute between the railroads and the unions to arbitration, but as we held in our prior decision, Congress was aware of state full-crew laws and did not intend to override them. 382 U. S., at 429-437.

In spite of this background of frequent and recent legislative re-evaluation of the full-crew problem, both at the state and national levels, the railroads now ask us to determine as a judicial matter that these laws no longer make a significant contribution to safety and so seriously burden the railroads in their operations that they should no longer stand under the Commerce Clause. The essence of the railroads’ position is that the requirement of additional crewmen amounts to nothing more than featherbedding. They claim that the firemen once needed to tend the furnaces on steam locomotives are not necessary on the diesel engines now generally in use. Although the railroads recognize that the fireman performs a valuable lookout function on passenger trains, where he and the engineer are the only crewmen in the engine cab, they assert that in both freight hauling operations and yard switching operations other railroad employees are available to provide an adequate lookout and assist the engineer in correcting mechanical problems and performing other miscellaneous duties. The railroads thus maintain that the firemen, and some of the other required crewmen, perform no useful function and make no significant contribution to safety. At the same time, the railroads contend, the full-crew requirements substantially increase their cost of operation, hampering their ability to improve railroad service and to compete with other modes of transportation, and also burden commerce by requiring interstate trains passing through Arkansas to slow down or stop at the border to pick up and let off the extra crewmen.

The State of Arkansas and the railroad brotherhoods, all appellants here, take a different view of the functions performed by the firemen and other additional crewmen required under the statutes. They claim that the work performed by these employees — serving as lookout, passing signals, relieving the engineer in emergencies, inspecting the engine and other cars, and helping to make needed adjustments and repairs while the train is moving — is still necessary and cannot be performed by other employees without unduly burdening them and interfering with the proper performance of their other tasks. Appellants argue that although some technological improvements have tended to eliminate safety hazards and lighten the work of the train crew, other developments, such as the increased size and speed of trains, the heavier automobile traffic over train crossings, and the competitive pressures for faster switching of trains, have had exactly the opposite effect.

The District Court analyzed these conflicting contentions and the conflicting evidence adduced to support them and concluded that the full-crew requirements have “no substantial effect on safety of operations.” The court also said that even if these requirements did add “some increment of safety to the operation, we think that such an increment is negligible . . . and not worth the cost.” As additional factors justifying its conclusion that the laws created an unconstitutional burden on interstate commerce, the court emphasized “the financial burden of compliance, which is out of all proportion to the benefit, if any, derived, and the added burden involved in the taking on and discharging men at or near the Arkansas State line . . . .”

We think it plain that in striking down the full-crew laws on this basis, the District Court indulged in a legislative judgment wholly beyond its limited authority to review state legislation under the Commerce Clause. The evidence as to the need for firemen and other additional crewmen was certainly conflicting and to a considerable extent inconclusive. Many railroad employees gave direct testimony as to incidents in which, for example, the presence of a fireman as a lookout helped avert a serious accident. With respect to statistical evidence, the District Court itself noted: “The statistical evidence as to the effect upon safety of the reductions in force authorized by the basic award and by the awards of the special adjustment boards [under the 1963 arbitration] is not entirely satisfactory either way . . . .” Indeed, as the court below recognized, the statistics showed that railroad accidents had actually increased during the period from 1964-1966, when the size of train crews was being reduced.

It would hardly be possible to summarize here all the other evidence in the record relevant to the safety question, and, as we have indicated, it is wholly unnecessary to do so. A brief summary of some of the findings of Arbitration Board No. 282, the panel set up pursuant to Pub. L. 88-108, should suffice to show that the question of safety is clearly one for legislative determination. In quoting from this report, of course, we in no way intend to indicate that the District Court should have accepted any of its specific conclusions or that this evidence was necessarily any more persuasive than any of the many other sources of information about the problem. We single it out only because it is one of the more recent reports and because it was heavily relied upon by the District Court and by the railroads themselves. The Board stated as its very first finding:

“1. The record contains no evidence to support the charge, frequently and irresponsibly made, that firemen presently employed in road freight and yard service throughout the country are being paid to do nothing and actually perform no useful work.”

The Board then went on to deal specifically with the various functions for which firemen were claimed to be necessary. It concluded that firemen were not necessary to perform the lookout function in “the great majority of cases” and that they were not needed to perform certain mechanical duties. The Board also held, however, that in order to insure relief of an engineer who becomes incapacitated while operating the train, firemen were clearly necessary in yard service on engines that were not equipped with a fully operative dead-man control, and the record before us in the present cases indicates that a substantial percentage of the engines operated in Arkansas are not equipped with this device. Although the Board thus thought that firemen could be eliminated in most cases, the Board emphasized:

<f[W]e are satisfied that a certain number of such assignments require the continued employment of firemen in order to prevent excessive safety hazard to lives and property, to avoid imposing an undue burden upon the remaining crew members, and to assure adequate and safe transportation service to the public.”

Finally, and most significant, the Board itself stressed in conclusion the subjective nature of its findings with reference to safety:

“Safety is, of course, essentially a relative concept; once adequate minimum standards have been achieved, the decision as to how much more safety is required must necessarily be governed by all the accompanying circumstances. Railroading is, unfortunately, a hazardous occupation, and the problem before us cannot be viewed simply in terms of preventing or not preventing accidents.”

This summary, taken from evidence heavily relied upon by the railroads and generally favorable to their position, leaves little room for doubt that the question of safety in the circumstances of this case is essentially a matter of public policy, and public policy can, under our constitutional system, be fixed only by the people acting through their elected representatives. The District Court's responsibility for making “findings of fact” certainly does not authorize it to resolve conflicts in the evidence against the legislature’s conclusion or even to reject the legislative judgment on the basis that without convincing statistics in the record to support it, the legislative viewpoint constitutes nothing more than what the District Court in this case said was “pure speculation.”

Of the other matters relied upon by the District Court, the problem of delay at the state borders apparently has not changed appreciably since the days of this Court’s earliest full-crew decisions, and this Court’s statement of the insignificance of the problem in Southern Pacific Co. v. Arizona, 325 U. S. 761, 782 (1945), is equally valid today:

“While the full train crew laws undoubtedly placed an added financial burden on the railroads in order to serve a local interest, they did not obstruct interstate transportation or seriously impede it. They had no effects outside the state beyond those of picking up and setting down the extra employees at the state boundaries; they involved no wasted use of facilities or serious impairment of transportation efficiency . . . .”

Nor was it open to the District Court to place a value on the additional safety in terms of dollars and cents, in order to see whether this value, as calculated by the court, exceeded the financial cost to the railroads. As we said in Bibb v. Navajo Freight Lines, 359 U. S. 520 (1959), where the District Court had struck down an Illinois law requiring trucks to be equipped with contour mudguards, on the ground that the equipment had no safety advantages and was very costly to install and maintain:

“Cost taken into consideration with other factors might be relevant in some cases to the issue of burden on commerce. But it has assumed no such proportions here. If we had here only a question whether the cost of adjusting an interstate operation to these new local safety regulations prescribed by Illinois unduly burdened interstate commerce, we would have to sustain the law under the authority of the Sproles [286 U. S. 374 (1932)], Barnwell [303 U. S. 177 (1938)], and Maurer [309 U. S. 598 (1940)] cases. The same result would obtain if we had to resolve the much discussed issues of safety presented in this case.” Id., at 526.

It is difficult at best to say that financial losses should be balanced against the loss of lives and limbs of workers and people using the highways. We certainly cannot do so on this showing.

II.

We deal next with the contention that because of the mileage exemption, the full-crew laws discriminate against interstate commerce in favor of intrastate commerce. This contention, like the railroads’ other claims, was of course specifically rejected in this Court’s earlier decisions dealing with these same Arkansas statutes. We noted in our prior opinion in the present cases that the effect of the mileage exemptions was to free all of the State’s 17 intrastate railroads from the coverage of the Acts, while 10 of the 11 interstate railroads are subject to the 1907 Act, and eight of them are subject to the 1913 Act. We went on to say, however, that the difference in treatment based on differing track mileage might have a rational basis, and we therefore held that the mileage classification could not, “on the record now before us,” be considered a discrimination in violation of the Commerce and Equal Protection Clauses. 382 U. S., at 437.

Despite the extensive testimony and exhibits added to the record since our previous consideration of these cases, we have found no basis for altering our conclusion that the mileage classification is permissible. The railroads argue that the extra men, if needed at all, are equally necessary on all trains, regardless of whether the company operating them happens to own a more or a less extensive system of track. But evidence in the record establishes a number of legitimate reasons for the mileage exemption. In the case of at least one of the short-line roads, the maximum speed for trains running over its main track is 35 miles per hour, while trains moving over the longer lines have speed limits of 65 and in some cases 75 miles per hour. The apparent use of much slower trains over the short lines certainly provides a basis upon which the Arkansas Legislature could conclude that the hazards encountered in line-haul operations are less serious, and accordingly that the need for regulation is less pressing, on the short lines. Similarly in connection with the switching operations, there was evidence that the usefulness of additional employees depends to some extent on the length of the train being switched, another factor that — like speed — tends to vary according to the railroad’s total trackage. Finally, the legislature could also conclude that the smaller railroads would be less able to bear the cost of additional crewmen, even though the total additional cost would of course tend to be smaller in the case of the smaller companies.

Although the railroads claim that other criteria could provide a more precise test of the situations where a larger crew is desirable, these other standards have inadequacies of their own, and are for the most part far too vague to provide a basis for a statutory classification. And in any event the courts may not force a state legislature to attain scientific perfection in determining the coverage of statutes of this type. As we stressed in the Bibb case, 359 U. S., at 524:

“These safety measures carry a strong presumption of validity when challenged in court. If there are alternative ways of solving a problem, we do not sit to determine which of them is best suited to achieve a valid state objective. Policy decisions are for the state legislature, absent federal entry into the field.”

Mileage classifications have repeatedly been upheld on this basis, not only in this Court’s previous decisions dealing with these very statutes but in many other cases involving similar problems. See, e. g., New York, N. H. & H. R. Co. v. New York, 165 U. S. 628 (1897). Nothing suggests that full-crew laws should now be treated differently.

III.

There remains for consideration only the railroads’ contention that the Arkansas laws violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Little need be said of the claim that the statutes violate the Equal Protection Clause for the reason that they discriminate against the railroad industry by singling it out for regulation and making no provision for minimum crews on "motor buses, taxicabs, airplanes, barges, cargo trucks, or any other segment of the transportation industry.” The statutes as written, requiring, for example, not “less than an engineer, a fireman, a conductor and three [3] brakemen,” could scarcely be extended in their present terms to such means of transportation as taxicabs or airplanes. Nor was the legislature, in attempting to deal with the safety problems in one industry, required to investigate the various differing hazards encountered in all competing industries and then to enact additional legislation to meet these distinct problems.

The railroads also argue that the statutes violate the Due Process Clause because they are “unduly oppressive” and impose costs on the regulated industry that exceed the public benefits of the regulation. The District Court agreed with this position, holding that the impact of the full-crew laws today is “unreasonable and oppressive” and therefore a violation of due process. Insofar as these arguments seek to present an independent basis for invalidating the laws, apart from any effect on interstate commerce, we think, with all due deference to appellees and the District Court, that these contentions require no further consideration. Ferguson v. Skrupa, 372 U. S. 726 (1963); Williamson v. Lee Optical Co., 348 U. S. 483 (1955); Olsen v. Nebraska, 313 U. S. 236 (1941); West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937) ; Nebbia v. New York, 291 U. S. 502 (1934).

IV.

Under all the circumstances we see no reason to depart from this Court’s previous decisions holding that the Arkansas full-crew laws do not unduly burden interstate commerce or otherwise violate the Constitution. Undoubtedly heated disputes will continue as to the extent to which these laws contribute to safety and other public interests, and the extent to which such contributions are justified by the cost of the additional manpower. These disputes will continue to be worked out in the legislatures and in various forms of collective bargaining between management and the unions. As we have said many times, Congress unquestionably has power under the Commerce Clause to regulate the number of employees who shall be used to man trains used in interstate commerce. In the absence of congressional action, however, we cannot invoke the judicial power to invalidate this judgment of the people of Arkansas and their elected representatives as to the price society should pay to promote safety in the railroad industry. The judgment of the District Court is reversed, and the cases are remanded to that court with instructions to dismiss the complaint.

It is so ordered.

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

Mr. Justice Douglas,

dissenting.

I would agree with the Court that if the constitutionality of these Arkansas laws were to be judged as safety measures under the State's police power, they would have to be sustained. But as I indicated in my dissent in Engineers v. Chicago, R. I. & P. R. Co., 382 U. S. 423, 438, Congress in enacting Pub. L. 88-108, 77 Stat. 132, undertook to displace state “full-crew” laws by delegating power to a national arbitration board to determine, for example, the necessity of firemen on diesel freights and the minimum size of train and switching crews.

I would, therefore, remand the cases to the District Court for further proceedings consistent with Pub. L. 88-108 and the awards that have been made under it.

        Chicago, R. I. & P. R. Co. v. Arkansas, 219 U. S. 453 (1911); St. L., I. M. & S. R. Co. v. Arkansas, 240 U. S. 518 (1916); Missouri Pac. R. Co. v. Norwood, 283 U. S. 249 (1931), 290 U. S. 600 (1933). The Court’s holdings in these cases were also reaffirmed, in dictum, in Southern Pacific Co. v. Arizona, 325 U. S. 761, 782 (1945).

       Ark. Laws 1907, Act 116, Ark. Stat. Ann. §§ 73-720 through 73-722 (1957 Repl. Vol.).

       Ark. Laws 1913, Act 67, Ark. Stat. Ann. §§ 73-726 through 73-729 (1957 Repl. Vol.).

       77 Stat. 132, 45 U. S. C. following § 157.

       The long and troublesome history of this aspect of the dispute is briefly summarized in our prior opinion in these cases, 382 U. S., at 430-432.

       See, e. g., Ark. Stat. Ann. §§73-704 through 73-706; 73-718, 73-719 (1957 Repl. Vol.).

       The approach taken in other States is summarized in the opinion of the District Court in these cases, 274 F. Supp., at 299.

       See New York Central R. Co. v. Lefkowitz, 23 N. Y. 2d 1, 241 N. E. 2d 730 (1968).

         E. g., Ark. Laws 1951, Act 253, Ark. Stat. Ann. §73-740 (1957 Repl. Vol.); Ark. Laws 1953, Act 130, Ark. Stat. Ann. §§ 73-741 through 73-744 (1957 Repl. Vol.).

        E. g., Ark. Laws 1965, Act 501, Ark. Stat. Ann. § 73-730 (Supp. 1967).

       The District Court dealt with this fact by simply stating that this trend had been observed in years preceding the effective date of the arbitration award and concluding: “Why accident rates have been increasing we do not know with certainty, but it would be pure speculation to say that crew size has had anything to do with it.”

       The record contains no meaningful estimate of what this cost actually is. The railroads computed the total wages paid per year to the allegedly unnecessary employees and claimed that this total figure, $7,600,000, represents the cost of compliance. But it was admitted that the net cost is actually lower than this because elimination of the additional crewmen would create new expenses, such as the special compensatory allowance paid to engineers who operate without the assistance of a fireman, additional overtime pay, and other costs associated with somewhat slower operations in terminals and en route. The railroads introduced no evidence to indicate the approximate amount of such new expenses, and we have no way of knowing whether, as appellants claim, these expenses would to a substantial extent offset the wage savings associated with the reduction in crew sizes.

       Although we struck down the Illinois law in Bibb, we did so on the carefully limited basis that the contour mudguard requirement flatly conflicted with laws, enforced in at least one other State, that trucks must be equipped with straight mudguards.


source: Caselaw Access Project

author: Mr. Justice Black Mr. Justice White, Mr. Justice Fortas,

license: Public Domain

text:
    COMMONWEALTH COATINGS CORP. v. CONTINENTAL CASUALTY CO. et al.
    No. 14.
    Argued October 22, 1968.
    Decided November 18, 1968.

      Emanuel Harris argued the cause for petitioner. With him on the briefs was Max E. Greenberg.

      Overton A. Currie argued the cause for respondents. With him on the briefs were Luther P. House, Jr., Federico Ramirez Ros, and Edward H. Wasson, Jr.

   Mr. Justice Black

delivered the opinion of the Court.

At issue in this case is the question whether elementary requirements of impartiality taken for granted in every judicial proceeding are suspended when the parties agree to resolve a dispute through arbitration.

The petitioner, Commonwealth Coatings Corporation, a subcontractor, sued the sureties on the prime contractor's bond to recover money alleged to be due for a painting job. The contract for painting contained an agreement to arbitrate such controversies. Pursuant to this agreement petitioner appointed one arbitrator, the prime contractor appointed a second, and these two together selected the third arbitrator. This third arbitrator, the supposedly neutral member of the panel, conducted a large business in Puerto Rico, in which he served as an engineering consultant for various people in connection with building construction projects. One of his regular customers in this business was the prime contractor that petitioner sued in this case. This relationship with the prime contractor was in a sense sporadic in that the arbitrator’s services were used only from time to time at irregular intervals, and there had been no dealings between them for about a year immediately preceding the arbitration. Nevertheless, the prime contractor’s patronage was repeated and significant, involving fees of about $12,000 over a period of four or five years, and the relationship even went so far as to include the rendering of services on the very projects involved in this lawsuit. An arbitration was held, but the facts concerning the close business connections between the third arbitrator and the prime contractor were unknown to petitioner and were never revealed to it by this arbitrator, by the prime contractor, or by anyone else until after an award had been made. Petitioner challenged the award on this ground, among others, but the District Court refused to set aside the award. The Court of Appeals affirmed, 382 F. 2d 1010 (C. A. 1st Cir. 1967), and we granted certiorari, 390 U. S. 979 (1968).

In 1925 Congress enacted the United States Arbitration Act, 9 U. S. C. §§ 1-14, which sets out a comprehensive plan for arbitration of controversies coining under its terms, and both sides here assume that this Federal Act governs this case. Section 10, quoted below, sets out the conditions upon which awards can be vacated. The two courts below held, however, that § 10 could not be construed in such a way as to justify vacating the award in this case. We disagree and reverse. Section 10 does authorize vacation of an award where it was “procured by corruption, fraud, or undue means” or “[w]here there was evident partiality .... in the arbitrators.” These provisions show a desire of Congress to provide not merely for any arbitration but for an impartial one. It is true that petitioner does not charge before us that the third arbitrator was actually guilty of fraud or bias in deciding this case, and we have no reason, apart from the undisclosed business relationship, to suspect him of any improper motives. But neither this arbitrator nor the prime contractor gave to petitioner even an intimation of the close financial relations that had existed between them for a period of years. We have no doubt that if a litigant could show that a foreman of a jury or a judge in a court of justice had, unknown to the litigant, any such relationship, the judgment would be subject to challenge. This is shown beyond doubt by Tumey v. Ohio, 273 U. S. 510 (1927), where this Court held that a conviction could not stand because a small part of the judge’s income consisted of court fees collected from convicted defendants. Although in Tumey it appeared the amount of the judge’s compensation actually depended on whether he decided for one side or the other, that is too small a distinction to allow this manifest violation of the strict morality and fairness Congress would have expected on the part of the arbitrator and the other party in this case. Nor should it be at all relevant, as the Court of Appeals apparently thought it was here, that “[t]he payments received were a very small part of [the arbitrator’s] income . ...” For in Tumey the Court held that a decision should be set aside where there is “the slightest pecuniary interest” on the part of the judge, and specifically rejected the State’s contention that the compensation involved there was “so small that it is not to be regarded as likely to influence improperly a judicial officer in the discharge of his duty . ...” Since in the case of courts this is a constitutional principle, we can see no basis for refusing to find the same concept in the broad statutory language that governs arbitration proceedings and provides that an award can be set aside on the basis of “evident partiality” or the use of “undue means.” See also Rogers v. Schering Corp., 165 F. Supp. 295, 301 (D. C. N. J. 1958). It is true that arbitrators cannot sever all their ties with the business world, since they are not expected to get all their income from their work deciding cases, but we should, if anything, be even more scrupulous to safeguard the impartiality of arbitrators than judges, since the former have completely free rein to decide the law as well as the facts and are not subject to appellate review. We can perceive no way in which the effectiveness of the arbitration process will be hampered by the simple requirement that arbitrators disclose to the parties any dealings that might create an impression of possible bias.

While not controlling in this case, § 18 of the Rules of the American Arbitration Association, in effect at the time of this arbitration, is highly significant. It provided as follows:

“Section 18. Disclosure by Arbitrator of Disqualification — At the time of receiving his notice of appointment, the prospective Arbitrator is requested to disclose any circumstances likely to create a presumption of bias or which he believes might disqualify him as an impartial Arbitrator. Upon receipt of such information, the Tribunal Clerk shall immediately disclose it to the parties, who if willing to proceed under the circumstances disclosed, shall, in writing, so advise the Tribunal Clerk. If either party declines to waive the presumptive disqualification, the vacancy thus created shall be filled in accordance with the applicable provisions of this Rule.”

And based on the same principle as this Arbitration Association rule is that part of the 33d Canon of Judicial Ethics which provides:

“33. Social Relations.
“. . . [A judge] should, however, in pending or prospective litigation before him be particularly careful to avoid such action as may reasonably tend to awaken the suspicion that his social or business relations or friendships, constitute an element in influencing his judicial conduct.”

This rule of arbitration and this canon of judicial ethics rest on the premise that any tribunal permitted by law to try cases and controversies not only must be unbiased but also must avoid even the appearance of bias. We cannot believe that it was the purpose of Congress to authorize litigants to submit their cases and controversies to arbitration boards that might reasonably be thought biased against one litigant and favorable to another.

Reversed.

Mr. Justice White,

with whom Mr. Justice Marshall joins, concurring.

While I am glad to join my Brother Black’s opinion in this case, I desire to make these additional remarks. The Court does not decide today that arbitrators are to be held to the standards of judicial decorum of Article III judges, or indeed of any judges. It is often because they are men of affairs, not apart from but of the marketplace, that they are effective in their adjudicatory function. Cf. United Steelworkers v. Warrior & Gulf Navigation Co., 363 U. S. 574 (1960). This does not mean the judiciary must overlook outright chicanery in giving effect to their awards; that would be an abdication of our responsibility. But it does mean that arbitrators are not automatically disqualified by a business relationship with the parties before them if both parties are informed of the relationship in advance, or if they are unaware of the facts but the relationship is trivial. I see no reason automatically to disqualify the best informed and most capable potential arbitrators.

The arbitration process functions best when an amicable and trusting atmosphere is preserved and there is voluntary compliance with the decree, without need for judicial enforcement. This end is best served by establishing an atmosphere of frankness at the outset, through disclosure by the arbitrator of any financial transactions which he has had or is negotiating with either of the parties. In many cases the arbitrator might believe the business relationship to be so insubstantial that to make a point of revealing it would suggest he is indeed easily swayed, and perhaps a partisan of that party. But if the law requires the disclosure, no such imputation can arise. And it is far better that the relationship be disclosed at the outset, when the parties are free to reject the arbitrator or accept him with knowledge of the relationship and continuing faith in his objectivity, than to have the relationship come to light after the arbitration, when a suspicious or disgruntled party can seize on it as a pretext for invalidating the award. The judiciary should minimize its role in arbitration as judge of the arbitrator’s impartiality. That role is best consigned to the parties, who are the architects of their own arbitration process, and are far better informed of the prevailing ethical standards and reputations within their business.

Of course, an arbitrator’s business relationships may be diverse indeed, involving more or less remote commercial connections with great numbers of people. He cannot be expected to provide the parties with his complete and unexpurgated business biography. But it is enough for present purposes to hold, as the Court does, that where the arbitrator has a substantial interest in a firm which has done more than trivial business with a party, that fact must be disclosed. If arbitrators err on the side of disclosure, as they should, it will not be difficult for courts to identify those undisclosed relationships which are too insubstantial to warrant vacating an award.

Mr. Justice Fortas,

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

I dissent and would affirm the judgment.

The facts in this case do not lend themselves to the Court’s ruling. The Court sets aside the arbitration award despite the fact that the award is unanimous and no claim is made of actual partiality, unfairness, bias, or fraud.

The arbitration was held pursuant to provisions in the contracts between the parties. It is not subject to the rules of the American Arbitration Association. It is governed by the United States Arbitration Act, 9 U. S. C. §§ 1-14.

Each party appointed an arbitrator and the third arbitrator was chosen by those two. The controversy relates to the third arbitrator.

The third arbitrator was not asked about business connections with either party. Petitioner’s complaint is that he failed to volunteer information about professional services rendered by him to the other party to the contract, the most recent of which were performed over a year before the arbitration. Both courts below held, and petitioner concedes, that the third arbitrator was innocent of any actual partiality, or bias, or improper motive. There is no suggestion of concealment as distinguished from the innocent failure to volunteer information.

The third arbitrator is a leading and respected consulting engineer who has performed services for "most of the contractors in Puerto Rico.” He was well known to petitioner’s counsel and they were personal friends. Petitioner’s counsel candidly admitted that if he had been told about the arbitrator’s prior relationship “I don’t think I would have objected because I know Mr. Capacete [the arbitrator].”

Clearly, the District Judge’s conclusion, affirmed by the Court of Appeals for the First Circuit, was correct, that “the arbitrators conducted fair, impartial hearings; that they reached a proper determination of the issues before them, and that plaintiff’s objections represent a ‘situation where the losing party to an arbitration is now clutching at straws in an attempt to avoid the results of the arbitration to which it became a party.’ ”

The Court nevertheless orders that the arbitration award be set aside. It uses this singularly inappropriate case to announce a per se rule that in my judgment has no basis in the applicable statute or jurisprudential principles: that, regardless of the agreement between the parties, if an arbitrator has any prior business relationship with one of the parties of which he fails to inform the other party, however innocently, the arbitration award is always subject to being set aside. This is so even where the award is unanimous; where there is no suggestion that the nondisclosure indicates partiality or bias; and where it is conceded that there was in fact no irregularity, unfairness, bias, or partiality. Until the decision today, it has not been the law that an arbitrator’s failure to disclose a prior business relationship with one of the parties will compel the setting aside of an arbitration award regardless of the circumstances.

I agree that failure of an arbitrator to volunteer information about business dealings with one party will, prima facie, support a claim of partiality or bias. But where there is no suggestion that the nondisclosure was calculated, and where the complaining party disclaims any imputation of partiality, bias, or misconduct, the presumption clearly is overcome.

1 do not believe that it is either necessary, appropriate, or permissible to rule, as the Court does, that, regardless of the facts, innocent failure to volunteer information constitutes the “evident partiality” necessary under § 10 (b) of the Arbitration Act to set aside an award. “Evident partiality” means what it says: conduct — or at least an attitude or disposition — by the arbitrator favoring one party rather than the other. This case demonstrates that to rule otherwise may be a palpable injustice, since all agree that the arbitrator was innocent of either “evident partiality” or anything approaching it.

Arbitration is essentially consensual and practical. The United States Arbitration Act is obviously designed to protect the integrity of the process with a minimum of insistence upon set formulae and rules. The Court applies to this process rules applicable to judges and not to a system characterized by dealing on faith and reputation for reliability. Such formalism is not contemplated by the Act nor is it warranted in a case where no claim is made of partiality, of unfairness, or of misconduct in any degree.

       “In either of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration—
      “ (a) Where the award was procured by corruption, fraud, or undue means.
      “(b) Where there was evident partiality or corruption in the arbitrators, or either of them.
      “(c) Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced.
      “(d) Where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
      “(e) Where an award is vacated and the time within which the agreement required the award to be made has not expired the court may, in its discretion, direct a rehearing by the arbitrators.”

       382 F. 2d, at 1011.

       273 U. S., at 524.

      In fact, the District Court found — on the basis of the record and petitioner’s admissions — that the arbitrator in this case was entirely fair and impartial. I do not read the majority opinion as questioning this finding in any way.

       See Firemen’s Fund Ins. Co. v. Flint Hosiery Mills, 74 F. 2d 533 (C. A. 4th Cir. 1935); Texas Eastern Transmission Corp. v. Barnard, 177 F. Supp. 123, 128-129 (D. C. E. D. Ky. 1959), rev’d on other grounds, 285 F. 2d 536 (C. A. 6th Cir. 1960); Ilios Shipping

        & Trading Corp. v. American Anthracite & Bituminous Coal Corp., 148 F. Supp. 698, 700 (D. C. S. D. N. Y.), aff’d, 245 F. 2d 873 (1957); Cross Properties, Inc. v. Gimbel Bros., 15 App. Div. 2d 913, 225 N. Y. S. 2d 1014, aff’d, 12 N. Y. 2d 806, 187 N. E. 2d 129 (1962). Cf. Isbrandtsen Tankers, Inc. v. National Marine Engineers’ Beneficial Assn., 236 N. Y. S. 2d 808, 811 (1962).

       At the time of the contract and the arbitration herein, § 18 of the Rules of the American Arbitration Association, which the Court quotes, was phrased merely in terms of a “request” that the arbitrator “disclose any circumstances likely to create a presumption of bias or which he believes might disqualify him as an impartial Arbitrator.” In 1964, the rule was changed to provide that “the prospective neutral Arbitrator shall disclose any circumstances likely to create a presumption of bias or which he believes might disqualify him as an impartial Arbitrator.” (Emphasis supplied.)

       The reports on the Act make this purpose clear. H. R. Rep. No. 96, 68th Cong., 1st Sess., 1-2; S. Rep. No. 536, 68th Cong., 1st Sess., 3. Cf. Wilko v. Swan, 346 U. S. 427, 431 (1953).


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

text:
    GRUNENTHAL v. LONG ISLAND RAIL ROAD CO.
    No. 35.
    Argued October 24, 1968.
    Decided November 18, 1968.

      Milford J. Meyer argued the cause for petitioner. With him on the briefs was Irving Younger.

      Daniel M. Gribbon argued the cause for respondent. On the brief was Paul F. McArdle.

   Mr. Justice Brennan

delivered the opinion of the Court.

Petitioner was working for respondent as foreman of a track gang when a 300-pound railroad tie being lifted by the gang fell and severely crushed his right foot. He sued respondent for damages under the Federal Employers’ Liability Act, 35 Stat. 65, as amended, 45 U. S. C. § 51 et seq., and a jury in the District Court for the Southern District of New York awarded him 1305,00o. The trial judge denied the railroad’s motion to set the award aside as excessive. The railroad appealed the denial to the Court of Appeals for the Second Circuit, and that court, one judge dissenting, ordered the District Court to grant the railroad a new trial unless the petitioner would agree to remit $105,000 of the award. 388 F. 2d 480 (1968). We granted certiorari, 391 U. S. 902 (1968). We reverse.

Petitioner argues that the Court of Appeals exceeded its appellate powers in reviewing the denial of the railroad’s motion, either because such review is constitutionally precluded by the provision of the Seventh Amendment that “no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law,” or because such review is prohibited by the Federal Employers’ Liability Act itself. We have no occasion in this case to consider that argument, for assuming, without deciding, that the Court of Appeals was empowered to review the denial and invoked the correct standard of review, the action of the trial judge, as we view the evidence, should not have been disturbed. See Neese v. Southern R. Co., 350 U. S. 77 (1955).

The trial judge filed an unreported opinion. He considered that in deciding the railroad’s motion he “must indulge ... in a fairly accurate estimate of factors to which the jury gave attention, and favorable response, in order to arrive at the verdict announced.” He concluded that the motion should be denied because, applying that standard, the relevant evidence weighed heavily • in favor of the jury’s assessment. His instructions to the jury had limited the items of damages to wages lost before trial, compensation for loss of future earnings, and past and continuing pain and suffering. His opinion detailed the items of evidence which, in his view, were sufficient to support the jury in finding that (1) wages lost before trial amounted to approximately $27,000, (2) loss of future wages based on petitioner’s present salary of $6,000 per annum plus likely increases over a life expectancy of 27.5 years would amount to $150,000 present value, and (3) “an amount approaching $150,000 [would be appropriate] for plaintiff’s pain and suffering — past and future.” The judge conceded that the aggregate award seemed generous, but he concluded nevertheless that it was “not generous to a fault or outside the bounds of legal appropriateness.” He emphasized that “the trial record here has many unusual features, the most outstanding one being the non-controversial nature of the defense as to damages. The jury, impressed by the uncontroverted proof adduced by plaintiff, may well have adopted in to to its full significance and drawn such normal and natural inferences therefrom as the law endorses.”

The Court of Appeals regarded its inquiry as limited to determining whether the trial judge abused his discretion in denying the railroad’s motion. Its guide for that determination, the court stated, was the standard of review announced in its earlier decision in Dagnello v. Long Island R. Co., 289 F. 2d 797, 806 (1961): “[W]e appellate judges [are] not to decide whether we would have set aside the verdict if we were presiding at the trial, but whether the amount is so high that it would be a denial of justice to permit it to stand. We must give the benefit of every doubt to the judgment of the trial judge; but surely there must be an upper limit, and whether that has been surpassed is not a question of fact with respect to which reasonable men may differ, but a question of law.”

We read Dagnello, however, as requiring the Court of Appeals in applying this standard to make a detailed appraisal of the evidence bearing on damages. Indeed this re-examination led to the conclusion in Dagnello that it was not a denial of justice to permit the jury’s award to stand. If the Court of Appeals made a similar appraisal of the evidence in this case, the details are not disclosed in the majority opinion. Beyond attaching unexplained significance to petitioner’s failure in his complaint “to ask for damages in such a large sum as $305,000,” the relevant discussion is limited to the bald statement that “giving Grunenthal the benefit of every doubt, and weighing the evidence precisely in the same manner as we did in Dagnello ... we cannot in any rational manner consistent with the evidence arrive at a sum in excess of $200,000.” 388 F. 2d, at 484. We have therefore made our own independent appraisal of the evidence. We conclude that the trial judge did not abuse his discretion in finding “nothing untoward, inordinate, unreasonable or outrageous — nothing indicative of a runaway jury or one that lost its head.”

The liability and damage issues were tried separately before the same jury. The evidence at the trial on damages consisted of stipulated hospital and employment records, a stipulation that petitioner’s life expectancy was 27.5 years, and the oral testimony of the petitioner, his medical expert, and an official of his railroad union. The railroad offered no witnesses.

Petitioner was 41 years of age at the time of his injury and had been in the railroad’s employ for over 20 years. The railroad concedes in its brief that he was earning approximately $6,000 annually and that the jury could properly find that he was entitled to $27,000 for wages already lost over the four and one-half year period between injury and judgment. The railroad further concedes that an award of $100,000 for loss of future wages would not be improper, this on the premise that invested in federal securities that sum would realize $6,000 annually. The trial judge on the other hand appraised the evidence on future earnings as sufficient to support an award of $150,000 for loss of future wages in light of the “convincing testimony not refuted . . . demonstrating the steady wage increases in recent time for work equivalent to that rendered by plaintiff, and the strong likelihood that similar increases would continue.”

We cannot say that the trial judge’s view that the jury might properly have awarded $150,000 for loss of future earnings is without support in the evidence. The judge had instructed the jury without objection from the railroad that it was free to find on the evidence that the injury so disabled the petitioner “that it in effect closed out his working career.” Although petitioner’s medical witness testified that the condition of his foot would not prevent petitioner from engaging in “sedentary work,” petitioner’s unchallenged evidence of his unsuccessful efforts to obtain and keep jobs of that kind might reasonably have led the jury to decide that petitioner’s chances of obtaining or holding any employment were most doubtful. Petitioner testified that his applications for work had often been turned down: “[W]hen they found out I had a bad foot they wouldn’t take a chance.” On one occasion when he obtained employment as a salesman during the Christmas rush, “I worked there for about four or five days but I couldn’t stand it.” Moreover, the railroad refused to employ him for any kind of work when he failed a medical examination given him by a railroad physician; after being told, “You failed the medical and we can’t take you back,” petitioner said he began receiving a “disability pension from the railroad.”

Since the jury’s award for lost future earnings may properly have been as high as $150,000, its award for pain and suffering might have been as low as $128,000 rather than the $150,000 deemed permissible by the trial judge. In any event we cannot say that the trial judge’s opinion that the jury might have awarded the higher $150,000 amount is without support in the record. Petitioner’s injury caused his hospitalization at five different times over a period of less than two years. His foot was so badly crushed that serious infection developed. The wounds did not heal properly and skin grafts were made from his right thigh about a year after his injury. Several months later gangrene set in and his doctors were concerned that the “foot was about to die.” A sympathectomy was performed, consisting of an incision of the abdomen to reach the spinal column and the sympathetic ganglia along the spine “to remove [the] controls which maintain the closing down of the blood vessels.” This operation was successful but six months later petitioner was forced to submit to yet another operation to remove a piece of bone over the ball of the great toe. Petitioner’s medical witness testified that there is still a hazard of more surgery because “this is just a mess of bones” — “the metatarsal has been completely crushed”— “the joint is completely lost” — “the overall black appearance of the bone” — “indicates decalcification or deminer-alization” — “the nourishment to the foot is so bad that the skin shows the unhealthy condition of the foot.” Petitioner testified that “I always have a pain, it is like a dull toothache, to this day,” and that “I just take it for granted now. It doesn’t bother me now.” The jury might well have concluded that petitioner suffered and would continue to suffer great pain, although he had learned to live with it. As Judge Hays noted, 388 F. 2d, at 485, the trial judge referred to “the total absence of exaggeration” in petitioner’s testimony describing “the excruciating physical pain and mental anguish” he had endured since the accident. “On the record here,” said the trial judge, “[the jury] had good and sufficient reason to regard and assess [the plaintiff’s pain and suffering — past and future] as excruciating, deep-seated, unrelenting and debilitating — the inducing cause of his constant misery.”

We therefore conclude that the action of the trial judge should not have been disturbed by the Court of Appeals.

The judgment of the Court of Appeals is reversed and the case is remanded to that court with direction to enter a judgment affirming the judgment of the District Court.

It is so ordered.

Mr. Justice Harlan,

dissenting.

I think it clear that the only issue which might conceivably justify the presence of this case in this Court is whether a United States Court of Appeals may constitutionally review the refusal of a district court to set aside a verdict for excessiveness. The Court purports not to decide that question, preferring to rest its decision upon the alleged correctness of the District Court’s action in the circumstances of this case. Like my Brother Stewart, I am at an utter loss to understand how the Court manages to review the District Court’s decision and find it proper while at the same time proclaiming that it has avoided decision of the issue whether appellate courts ever may review such actions.

Even assuming that this feat of legal gymnastics has been successfully performed, I believe that the correctness of this particular District Court decision, a matter whose proper resolution depends upon a detailed examination of the trial record and which possesses little if any general significance, is not a suitable issue for this Court. Accordingly, I think it appropriate to vote to dismiss the writ as improvidently granted, even though the case formally is here on an unlimited writ. See my dissenting opinion in Protective Committee v. Anderson, 390 U. S. 414, 454 (1968). To the extent that this position is inconsistent with my having joined the per curiam opinion in Neese v. Southern R. Co., 350 U. S. 77 (1955), in which the Court adopted a course similar to that followed today, I feel bound frankly to say that the incongruity of today’s decision brings me face-to-face with the question whether that earlier disposition was correct, and that I now believe it to have been wrong. Since the Court professes not to reach the constitutional issue in this case, I consider it inappropriate for me, as an individual Justice, to express my opinion on it.

Mr. Justice Stewart,

dissenting.

The Court professes not to consider the petitioner’s argument that the Seventh Amendment and “the Federal Employers’ Liability Act itself” prohibit judicial review of a district judge’s order refusing to set aside a verdict as excessive. Yet by the very act of proceeding to review the district judge’s order in this case, the Court necessarily, and I think quite correctly, completely rejects that argument. I fully agree with the Court and with the 11 courts of appeals that “nothing in the Seventh Amendment [or in the FELA] precludes appellate review of the trial judge’s denial of a motion to set aside an award as excessive.”

In Dagnello v. Long Island R. Co., 289 F. 2d 797, the Court of Appeals for the Second Circuit, in a thorough and carefully considered opinion written by Judge Medina, articulated the standard to be followed by that court in reviewing a trial judge’s refusal to set aside a verdict as excessive:

“If we reverse, it must be because of an abuse of discretion. If the question of excessiveness is close or in balance, we must affirm. The very nature of the problem counsels restraint. Just as the trial judge is not called upon to say whether the amount is higher than he personally would have awarded, so are we appellate judges not to decide whether we would have set aside the verdict if we were presiding at the trial, but whether the amount is so high that it would be a denial of justice to permit it to stand. We must give the benefit of every doubt to the judgment of the trial judge; but surely there must be an upper limit, and whether that has been surpassed is not a question of fact with respect to which reasonable men may differ, but a question of law. . . .” Id., at 806.

I believe this standard of judicial review is the correct one and can think of no better way to verbalize it.

In the present case Judge Medina again wrote the prevailing opinion. This Court criticizes that opinion for not setting out “a detailed appraisal of the evidence bearing on damages.” But the Court of Appeals devoted several paragraphs to a review of all the relevant particulars of the petitioner’s financial loss and physical injuries, concluding its discussion of the evidence with the following passage:

“[G]iving Grunenthal the benefit of every doubt, and weighing the evidence precisely in the same manner as we did in Dagnello, where the large sum allowed was found not to be excessive, we cannot in any rational manner consistent with the evidence arrive at a sum in excess of $200,000.” 388 F. 2d 480, 484.

While it is arguable that a fuller written factual discussion might have been in order, I can find no reason to suppose that the Court of Appeals did not apply the standard of judicial review that it said it was applying— the standard of the Dagnello case. Since I believe that standard to be the correct one, and since I further believe that review^ of issues of this kind in individualized personal injury cases should be left primarily to the courts of appeals, I would affirm the judgment.

       Petitioner’s complaint sought damages of $250,000. This was amended with leave of the trial judge to $305,000 after the jury-returned its verdict in that amount.

       The Court of Appeals rejected the railroad’s grounds of appeal addressed to liability and to the dismissal of a third-party claim of the railroad against the contracting company which furnished a boom truck used by the track gang. None of those questions was brought here.

       All 11 courts of appeals have held that nothing in the Seventh Amendment precludes appellate review of the trial judge’s denial of a motion to set aside an award as excessive. Boyle v. Bond, 88 U. S. App. D. C. 178, 187 F. 2d 362 (1951); Compania Trasatlantica Espanola, S. A. v. Melendez Torres, 358 F. 2d 209 (C. A. 1st Cir. 1966); Dagnello v. Long Island R. Co., 289 F. 2d 797 (C. A. 2d Cir. 1961); Russell v. Monongahela R. Co., 262 F. 2d 349, 352 (C. A. 3d Cir. 1958); Virginian R. Co. v. Armentrout, 166 F. 2d 400 (C. A. 4th Cir. 1948); Glazer v. Glazer, 374 F. 2d 390 (C. A. 5th Cir. 1967); Gault v. Poor Sisters of St. Frances, 375 F. 2d 539, 547-548 (C. A. 6th Cir. 1967); Bucher v. Krause, 200 F. 2d 576, 586-587 (C. A. 7th Cir.1952); Bankers Life & Cas. Co. v. Kirtley, 307 F. 2d 418 (C. A. 8th Cir. 1962); Covey Gas & Oil Co. v. Checketts, 187 F. 2d 561 (C. A. 9th Cir. 1951); Barnes v. Smith, 305 F. 2d 226, 228 (C. A. 10th Cir. 1962).

       The standard has been variously phrased: “Common phrases are such as: ‘grossly excessive,’ ‘inordinate,’ ‘shocking to the judicial conscience,’ ‘outrageously excessive,’ ‘so large as to shock the conscience of the court,’ ‘monstrous,’ and many others.” Dagnello v. Long Island R. Co., supra, at 802.

      1 feel entitled to state, by way of partial confession and avoidance of my action in Neese, that the writ in Neese was granted before I took my seat on the Court. See 348 U. S. ix, and 950 (1955).

      See ante, at 157, n. 3.


author: Per Curiam. Mr. Justice Black,

text:
    RECZNIK v. CITY OF LORAIN.
    No. 323.
    Decided November 18, 1968.

      Meyer Gordon for petitioner.

      Henry T. Webber for respondent.
   Per Curiam.

On the night of June 10, 1965, two police officers of the City of Lorain, Ohio, left their assigned cruising district and drove to the premises at 1420-1422 Broadway because they “suspected a crime was being committed” there. This suspicion was founded upon tips from persons who had stopped the officers on the street. Petitioner is the owner of the building at 1420-1422 Broadway, which contains two unconnected units. No. 1420 consists of the ground floor and basement and houses a cigar shop and storeroom. No. 1422 is a second story suite of rooms. When the officers arrived at the premises at approximately 1 a. m., they noticed an unusually large number of cars parked in the vicinity. According to their testimony they met the petitioner outside the rear entrance to the upstairs suite, warned him that there had better be nothing illegal going on inside, and said they would return in half an hour.

When they did return 20 minutes later, a large number of cars were still parked near the building, and the officers observed several men entering the upstairs apartment. The officers then climbed the stairs, listened to the sound of voices within, and tried to look through the window and door. Unable to see inside, they walked through the back doorway unannounced. As they headed for the front of the apartment, the petitioner emerged from a front room and told the officers they could not enter. Through the door opened by the petitioner, one of the officers saw a dice game in progress. The officers entered the room, placed everyone present under arrest, and seized the table, chips, dice, and money which were being used in the game. Those arrested, including the petitioner, were taken to the police station. The police continued to search the apartment, and came across some keys which they thought might open the store and basement downstairs. Apparently because the officers “had information that there were all sorts of gaming devices downstairs,” the store and basement were also searched thoroughly, and various numbers game paraphernalia were discovered and seized.

Petitioner was convicted in the Municipal Court of Lorain of violating three ordinances which prohibit keeping a gambling place, exhibiting a gambling device, and possessing a numbers game. His motion to suppress all the evidence which had been seized at 1420-1422 Broadway was denied, the court ruling, upon the evidence above summarized, that the officers had “entered this public establishment and observed gambling being conducted openly and in full view.” On appeal to the Court of Common Pleas, the conviction for possession of the numbers game paraphernalia found in the lower unit of the building was reversed. The court held that since the petitioner had already been taken to the police station and booked, “the search of the storeroom in this case was too remote in time to have been incidental to the arrest.” The Court of Appeals affirmed the convictions on the two remaining counts, and the Supreme Court of Ohio dismissed an appeal. Since we have concluded that the petitioner’s rights under the Fourth and Fourteenth Amendments to the Constitution were infringed by the entry of the police onto his premises, we grant certiorari and reverse. Mapp v. Ohio, 367 U. S. 643.

The finding of the Municipal Court that the petitioner’s apartment was a “public establishment” has no support in the record. While the cigar store was usually open, to the public during business hours, it was closed and dark at the time of the arrest. The upstairs suite was an entirely separate unit, with a different address and different entrances. The respondent’s suggestion that the officers were privileged to enter because the apartment “at that point had taken on, from the amount of people, a public appearance,” is untenable. The congregation of a large number of persons in a private home does not transform it into a public place open to the police.

Respondent argues that the entry into the apartment was justified as incidental to the arrest of the petitioner, who the officers had probable cause to believe was conducting an illegal game. The senior arresting officer, however, did not so view the matter, for he conceded that when he entered the apartment, he “had no evidence to make an arrest.” Nevertheless, it is argued, the officers could have entered to arrest the petitioner in view of the tips received from informers that evening and their own corroborating observations of the activities at the apartment. We cannot agree that the knowledge of the officers revealed by this record amounted to probable cause to believe that a crime was being committed. The testimony of one officer that the building was a “noted gambling joint” was stricken by the trial judge, and no further effort was made to show that either the petitioner or the apartment was at that time connected with illicit gambling operations. Nor did the respondent even attempt to establish that the informers were reliable. The officers identified these informers only as “people on the street” who were previously unknown to the officers and whose names they did not bother to ask because “there was no reason for it.” They did not relate what information they received from these nameless individuals other than that there were “all sorts of gaming devices downstairs.” (Emphasis supplied.)

We have held that the prosecution has not met its burden when an arresting officer “said no more than that someone (he did not say who) had told him something (he did not say what) about the petitioner.” Beck v. Ohio, 379 U. S. 89, 97. Even where a search warrant is obtained, the police must show a basis for the search beyond the mere fact of an assertion by an informer. Aguilar v. Texas, 378 U. S. 108. At least as much is required to support a search without a warrant. Beck v. Ohio, supra, at 96. Since the respondent did not meet the burden of showing probable cause in this case, the motion to suppress should have been granted.

The conviction is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Mr. Justice Stewart and Mr. Justice White would deny the petition for certiorari.

Mr. Justice Black,

whom Mr. Justice Harlan joins, dissenting.

The Court here summarily reverses the jury’s conviction of petitioner, Pete Recznik, for violating the city’s laws against keeping a gambling house and having possession of gambling tables and other gambling devices. The Court simply grants certiorari and reverses, giving the City of Lorain no opportunity at all to argue its case before us. I dissent from such a hasty, ill-considered reversal. To reverse the conviction, this Court holds that it was error for the trial court to deny Recznik’s motion to suppress evidence obtained in part by a search without a warrant of the gambling establishment. Having read the entire 388 pages of testimony, I think that they show beyond doubt that there was no unlawful search and seizure and I think that an argument would reveal that fact to this Court. This is made clear by the per curiam opinion’s reliance on an order of July 7, 1965, refusing, prior to trial, to suppress the evidence. This Court bases its reversal on its disagreement with the pretrial finding that petitioner’s gambling house was a “public establishment.” The Court states that this finding “has no support in the record.” While I think that the testimony contains far more than enough evidence to support a finding that the so-called “apartment” was maintained as a public gambling house, and not as a private residence, it happens that this was only an alternative ground for the trial court’s refusal to suppress at this pretrial hearing. The other ground was this:

“The Court upon consideration overrules defendant’s motion for the following reasons, to wit: That no evidence of any illegal search or seizure was presented. Defendant merely presented oral and written arguments in support of his motion.”

The fact that no sworn evidence was presented to support the motion to suppress was, of course, sufficient to dispose of the pretrial motion as the court did. That this first pretrial motion is not now relied on by petitioner is shown by his statement to the court at the beginning of the trial to this effect:

“Mr. Gordon: On the motion to suppress the evidence in this case, the Court is to consider the evidence in the main case that will be presented to the Jury at this time and make its decision later.”

At the end of the city’s evidence the motion to suppress was made again and denied; it was again made and denied at the conclusion of all the evidence. So it is not to the first pretrial motion to suppress of July 7, 1965, that we must look but to the whole record. That record, in my judgment, shows that the petitioner, who owned the premises which he permitted to be used as a gambling establishment, not only did not object to the officers going into the building but also actually invited them.

As the Court says, the building into which the officers entered belongs to the petitioner, Pete Recznik. He is evidently a well-known gambler around town since he testified that he had been in and out of jail for around a quarter of a century, as had John Micjan whom the petitioner asserted was his upstairs “tenant” in the private “apartment” which was filled with dice, game tables, and other gambling devices. In fact, Micjan had come to the “apartment” straight from the jail only a month or two before.

The arrest took place in the following factual context. While Police Officer Kochan was cruising around the streets someone told him that gambling was going on at Recznik’s building. He and his partner decided to go up and look around in the area of the building. Now, of course, this street information they had received would not alone have been enough to give probable cause either for a search warrant or an arrest. Nor did the officers treat it as enough. It was enough, however, for the officers to investigate, which they did. They went to the building about midnight and saw signs of extraordinary activities around it. While the bottom floor was dark, the upstairs, where the gambling paraphernalia were located, was well lighted. They saw about 40 to 50 automobiles parked in the front and rear of the building. They observed men coming in cars, getting out, going up the back stairs, and entering the upstairs rooms without any difficulty whatever. They observed someone upstairs peeping at them through Venetian blinds and shortly thereafter petitioner Recznik came out and talked with them. Recznik did not then or at any time order the officers not to come up. Instead, according to petitioner Recznik’s own testimony, he told Officer Kochan that they were having a party upstairs and, addressing the officer directly, said: “If you want to come up you can come up.” Again, Recznik testified: “I told him the first time, we had a party, that he was invited up. He says, 'I will be back later.’ ”

After these invitations the officers went away and came back about 1 a. m., finding the place still lighted and filled with people. The officers walked up the back steps, where they had seen the others walking in and out. They opened the door which they testified was unlocked. They saw many people there. Recznik testified that they pulled the screen door off its hinges. The officers denied it and obviously neither the jury that convicted nor the judge that refused to suppress the evidence believed Recznik. Once inside, the officers met Recznik. Recznik testified as follows in response to questions from the prosecuting attorney:

“Q. There has been a lot of talk about a warrant. Did you ask him to see a warrant?
“A. No, I didn’t say nothing.
“Q. Did you tell him to stay out?
“A. No. Absolutely not.
“Q. Did you say, ‘You can’t come in here?’
“A. No.
“Q. You just said, ‘What do you want?’
“A. I said, ‘What do you want.’
“Q. Did you tell him ‘You can’t search this place?’
“A. Absolutely not. Why would I tell him that?”

Officer Kochan testified that he saw dice and other gambling devices and that when Recznik opened the door to another room he, Kochan, looked over Recznik’s shoulder and saw many people gambling on a large dice table upon which was money and a green table covering. Micjan explained the presence of the money and dice table in this illuminating way: The money, $213, he had found on the street in a purse; the large dice table had been brought to him by strangers and left in his “apartment.” The moment Kochan (who had been invited by Recznik to come to the “party”) saw all these gambling paraphernalia, saw the people with money in their hands crying out in gambler’s language “I fade you,” he stated that all there were under arrest. That was his duty. Ohio law provides that an officer seeing a person committing a misdemeanor has a duty to arrest. Since the arrest was legal, the officer then had the authority to search the remainder of the building without a warrant. This he did. And when the case got to the jury it promptly convicted.

There is no case decided by this Court that calls for a reversal here on the ground that the officer lacked probable cause to arrest for the misdemeanors he actually saw committed. One who will take the time to read this entire record as I have will find, I think, that this gambling establishment was so notorious in Lorain that it is not at all surprising that strangers to the police were urging them to do something about it. I wonder if in addition to having its just conviction reversed the City of Lorain will be compelled to return to their guilty owners the dice, dice tables, and other gambling devices that the officers took away as contraband. I regret very much that this Court, by its hasty, summary reversal, is providing its critics with such choice ammunition for their attacks.

I would deny certiorari. If, however, four members of the Court are determined to grant certiorari, I would set the case down for argument in the conventional fashion and the normal way.


author: Mr. Justice Fortas Mu. Justice Douglas,

text:
    CARROLL et al. v. PRESIDENT AND COMMISSIONERS OF PRINCESS ANNE et al.
    No. 6.
    Argued October 21, 1968.
    Decided November 19, 1968.

      Eleanor Holmes Norton and William H. Zinman argued the cause for petitioners. With them on the brief were Melvin L. Wulf and Leon Friedman.

      8. Leonard Rottman and Alexander G. Jones argued the cause for respondents. With them on the brief was Francis B. Burch, Attorney General of Maryland.
   Mr. Justice Fortas

delivered the opinion of the Court.

Petitioners are identified with a “white supremacist” organization called the National States Rights Party. They held a public assembly or rally near the courthouse steps in the town of Princess Anne, the county seat of Somerset County, Maryland, in the evening of August 6, 1966. The authorities did not attempt to interfere with the rally. Because of the tense atmosphere which developed as the meeting progressed, about 60 state policemen were brought in, including some from a nearby county. They were held in readiness, but for tactical reasons only a few were in evidence at the scene of the rally.

Petitioners’ speeches, amplified by a public address system so that they could be heard for several blocks, were aggressively and militantly racist. Their target was primarily Negroes and, secondarily, Jews. It is sufficient to observe with the court below, that the speakers engaged in deliberately derogatory, insulting, and threatening language, scarcely disguised by protestations of peaceful purposes; and that listeners might well have construed their words as both a provocation to the Negroes in the crowd and an incitement to the whites. The rally continued for something more than an hour, concluding at about 8:25 p. m. The crowd listening to the speeches increased from about 50 at the beginning to about 150, of whom 25% were Negroes.

In the course of the proceedings it was announced that the rally would be resumed the following night, August 7.

On that day, the respondents, officials of Princess Anne and of Somerset County, applied for and obtained a restraining order from the Circuit Court for Somerset County. The proceedings were ex parte, no notice being given to petitioners and, so far as appears, no effort being made informally to communicate with them, although this is expressly contemplated under Maryland procedure. The order restrained petitioners for 10 days from holding rallies or meetings in the county “which will tend to disturb and endanger the citizens of the County.” As a result, the rally scheduled for August 7 was not held. After the trial which took place 10 days later, an injunction was issued by the Circuit Court on August 30, in effect extending the restraint for 10 additional months. The court had before it, in addition to the testimony of witnesses, tape recordings made by the police of the August 6 rally.

On appeal, the Maryland Court of Appeals affirmed the 10-day order, but reversed the 10-month order on the ground that “the period of time was unreasonable and that it was arbitrary to assume that a clear and present danger of civil disturbance and riot would persist for ten months.”

Petitioners sought review by this Court, under 28 U. S. C. § 1257 (3), asserting that the case is not moot and that the decision of the Maryland Court of Appeals continues to have an adverse effect upon petitioners’ rights. We granted certiorari.

We agree with petitioners that the case is not moot. Since 1966, petitioners have sought to continue their activities, including the holding of rallies in Princess Anne and Somerset County, and it appears that the decision of the Maryland Court of Appeals continues to play a substantial role in the response of officials to their activities. In these circumstances, our jurisdiction is not at an end.

This is the teaching of Bus Employees v. Missouri, 374 U. S. 74 (1963), which concerned a labor dispute which had led to state seizure of the business. This Court held that, although the seizure had been terminated, the case was not moot because “the labor dispute [which gave rise to the seizure] remains unresolved. There thus exists . . . not merely the speculative possibility of invocation of the [seizure law] in some future labor dispute, but the presence of an existing unresolved dispute which continues . . . .” Id., at 78.

In Southern Pacific Terminal Co. v. ICC, 219 U. S. 498 (1911), this Court declined to hold that the case was moot although the two-year cease-and-desist order at issue had expired. It said: “The questions involved in the orders of the Interstate Commerce Commission are usually continuing . . . and their consideration ought not to be, as they might be, defeated, by short term orders, capable of repetition, yet evading review . . . Id., at 515.

These principles are applicable to the present case. The underlying question persists and is agitated by the continuing activities and program of petitioners: whether, by what processes, and to what extent the authorities of the local governments may restrict petitioners in their rallies and public meetings.

This conclusion — that the question is not moot and ought to be adjudicated by this Court — is particularly appropriate in view of this Court’s decision in Walker v. Birmingham, 388 U. S. 307 (1967). In that case, the Court held that demonstrators who had proceeded with their protest march in face of the prohibition of an in-junctive order against such a march, could not defend contempt charges by asserting the unconstitutionality of the injunction. The proper procedure, it was held, was to seek judicial review of the injunction and not to disobey it, no matter how well-founded their doubts might be as to its validity. Petitioners have here pursued the course indicated by Walker; and in view of the continuing vitality of petitioners’ grievance, we cannot say that their case is moot.

Since the Maryland Court of Appeals reversed the 10-month injunction of August 30, 1966, we do not consider that order. We turn to the constitutional problems raised by the 10-day injunctive order.

The petitioners urge that the injunction constituted a prior restraint on speech and that it therefore violated the principles of the First Amendment which are applicable to the States by virtue of the Fourteenth Amendment. In any event, they assert, it was not constitutionally permissible to restrain petitioners’ meetings because no “clear and present danger” existed.

Respondents, however, argue that the injunctive order in this case should not be considered as a “prior restraint” because it was based upon the events of the preceding evening and was directed at preventing a continuation of those events, and that, even if considered a “prior restraint,” issuance of the order was justified by the clear and present danger of riot and disorder deliberately generated by petitioners.

We need not decide the thorny problem of whether, on the facts of this case, an injunction against the announced rally could be justified. The 10-day order here must be set aside because of a basic infirmity in the procedure by which it was obtained. It was issued ex parte, without notice to petitioners and without any effort, however informal, to invite or permit their participation in the proceedings. There is a place in our jurisprudence for ex parte issuance, without notice, of temporary restraining orders of short duration; but there is no place within the area of basic freedoms guaranteed by the First Amendment for such orders where no showing is made that it is impossible to serve or to notify the opposing parties and to give them an opportunity to participate.

We do not here challenge the principle that there are special, limited circumstances in which speech is so interlaced with burgeoniiig violence that it is not protected by the broad guarantee of the First Amendment. In Cantwell v. Connecticut, 310 U. S. 296, at 308 (1940), this Court said that “[n]o one would have the hardihood to suggest that the principle of freedom of speech sanctions incitement to riot.” See also Chaplinsky v. New Hampshire, 315 U. S. 668, 572 (1942); Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U. S. 287, 294 (1941). . Ordinarily, the State’s constitutionally permissible interests are adequately served by criminal penalties imposed after freedom to speak has been so grossly abused that its immunity is breached. The impact and consequences of subsequent punishment for such abuse are materially different from those of prior restraint. Prior restraint upon speech suppresses the precise freedom which the First Amendment sought to protect against abridgment.

The Court has emphasized that “[a] system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” Bantam Books v. Sullivan, 372 U. S. 58, 70 (1963); Freedman v. Maryland, 380 U. S. 51, 57 (1965). And even where this presumption might otherwise be overcome, the Court has insisted upon careful procedural provisions, designed to assure the fullest presentation and consideration of the matter which the circumstances permit. As the Court said in Freedman v. Maryland, supra, at 58, a noncriminal process of prior restraints upon expression “avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system.”

Measured against these standards, it is clear that the 10-day restraining order in the present case, issued ex parte, without formal or informal notice to the petitioners or any effort to advise them of the proceeding, cannot be sustained. Cf. Marcus v. Search Warrant, 367 U. S. 717, 731 (1961); A Quantity of Books v. Kansas, 378 U. S. 205 (1964). In the latter case, this Court disapproved a seizure of books under a Kansas statute on the basis of ex parte scrutiny by a judge. The Court held that the statute was unconstitutional. Mr. Justice Brennan, speaking for a plurality of the Court, condemned the statute for “not first affording [the seller of the books] an adversary hearing.” Id., at 211. In the present case, the reasons for insisting upon an opportunity for hearing and notice, at least in the absence of a showing that reasonable efforts to notify the adverse parties were unsuccessful, are even more compelling than in cases involving allegedly obscene books. The present case involves a rally and “political” speech in which the element of timeliness may be important. As Mr. Justice Harlan, dissenting in A Quantity of Books v. Kansas, pointed out, speaking of “political and social expression”:

“It is vital to the operation of democratic government that the citizens have facts and ideas on important issues before them. A delay of even a day or two may be of crucial importance in some instances. On the other hand, the subject of sex is of constant but rarely particularly topical interest.” 378 U. S., at 224.

In the present case, the record discloses no reason why petitioners were not notified of the application for injunction. They were apparently present in Princess Anne. They had held a rally there on the night preceding the application for and issuance of the injunction. They were scheduled to have another rally on the very evening of the day when the injunction was issued. And some of them were actually served with the writ of injunction at 6:10 that evening. In these circumstances, there is no justification for the ex parte character of the proceedings in the sensitive area of First Amendment rights.

The value of a judicial proceeding, as against self-help by the police, is substantially diluted where the process is ex parte, because the Court does not have available the fundamental instrument for judicial judgment: an adversary proceeding in which both parties may participate. The facts in any case involving a public demonstration are difficult to ascertain and even more difficult to evaluate. Judgment as to whether the facts justify the use of the drastic power of injunction necessarily turns on subtle and controversial considerations and upon a delicate assessment of the particular situation in light of legal standards which are inescapably imprecise. In the absence of evidence and argument offered by both sides and of their participation in the formulation of value judgments, there is insufficient assurance of the balanced analysis and careful conclusions which are essential in the area of First Amendment adjudication.

The same is true of the fashioning of the order. An order issued in the area of First Amendment rights must be couched in the narrowest terms that will accomplish the pin-pointed objective permitted by constitutional mandate and the essential needs of the public order. In this sensitive field, the State may not employ “means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.” Shelton v. Tucker, 364 U. S. 479, 488 (1960). In other words, the order must be tailored as precisely as possible to the exact needs of the case. The participation of both sides is necessary for this purpose. Certainly, the failure to invite participation of the party seeking to exercise First Amendment rights reduces the possibility of a narrowly drawn order, and substantially imperils the protection which the Amendment seeks to assure.

Finally, respondents urge that the failure to give notice and an opportunity for hearing should not be considered to invalidate the order because, under Maryland procedure, petitioners might have obtained a hearing on not more than two days’ notice. Maryland Rule of Procedure BB72. But this procedural right does not overcome the infirmity in the absence of a showing of justification for the ex parte nature of the proceedings. The issuance of an injunction which aborts a scheduled rally or public meeting, even if the restraint is of short duration, is a matter of importance and consequence in view of the First Amendment’s imperative. The denial of a basic procedural right in these circumstances is not excused by the availability of post-issuance procedure which could not possibly serve to rescue the August 7 meeting, but, at best, could have shortened the period in which petitioners were prevented from holding a rally.

We need not here decide that it is impossible for circumstances to arise in which the issuance of an ex parte restraining order for a minimum period could be justified because of the unavailability of the adverse parties or their counsel, or perhaps for other reasons. In the present case, it is clear that the failure to give notice, formal or informal, and to provide an opportunity for an adversary proceeding before the holding of the rally was restrained, is incompatible with the First Amendment. Because we reverse the judgment below on this basis, we need not and do not decide whether the facts in this case provided a constitutionally permissible basis for temporarily enjoining the holding of the August 7 rally.

Reversed.

Mr. Justice Black concurs in the result.

Mu. Justice Douglas,

while joining the opinion of the Court, adheres to his dissent in Kingsley Books, Inc. v. Brown, 354 U. S. 436, 446-447, and to his concurring opinion in Freedman v. Maryland, 380 U. S. 51, 61-62.

       Petitioner Norton said, “I want you to ... be back here at the same place tomorrow night, bring every friend you have . . . . We’re going to take it easy tonight ...” and "You white folks bring your friends, come back tomorrow night. . . . Come on back tomorrow night, let’s raise a little bit of hell for the white race.”

       Maryland Rule of Procedure BB72.

       The text of the Writ of Injunction is as follows:

        “We command and strictly enjoin and prohibit you the said Joseph Carroll, Richard Norton, J. B. Stoner, Connie Lynch, Robert Lyons, William Brailsford and National States Rights Party from holding rallies or meetings in Somerset County which will tend to disturb and endanger the citizens of the County and to enjoin you, the said defendants, from using and operating or causing to be operated within the County any devices or apparatus for the application [sic] of the human voice or records from any radio, phonograph or other sound making or producing device thereby disturbing the tranquility of the populace of the County, until the matter can be heard and determined in equity, or for a period of ten days from the date hereof.
      “Hereof, fail not, as you will act to the contrary at your peril.”

       Petitioners recite that they were denied the right to hold a rally in Princess Anne on July 17, 1967, and that the letter of rejection relied upon the Court of Appeals’ decision. They acknowledge that on July 25, they were authorized to hold rallies in Princess Anne on July 28, 29, and 30, 1967; but they appear to complain that the permit stipulated that the sound should not be amplified for more than 250 feet, and that “you will not be permitted to use racial epithets or to make slanderous remarks about the members of any race or ethnic group.”

      .The elimination of prior restraints was a “leading purpose” in the adoption of the First Amendment. See Lovell v. Griffin, 303 U. S. 444, at 451-452 (1938).

        Marcus rejected the contention that Kingsley Books, Inc. v. Brown, 354 U. S. 436 (1957), supported “the proposition that the State may impose the extensive restraints imposed here on the distribution of these publications prior to an adversary proceeding on the issue of obscenity.” 367 U. S., at 736. In Kingsley, a New York statute authorizing an injunction pendente lite against the distribution of obscene books was upheld. By statute, the person enjoined could get a hearing “within one day after joinder of issue.” The New York courts have subsequently held that no ex parte injunction may be issued under the statute. Tenney v. Liberty News Distribs., Inc., 13 App. Div. 2d 770, 215 N. Y. S. 2d 663 (1961).

       Compare the considerations leading to the Norris-LaGuardia Act, 47 Stat. 70, 29 U. S. C. §§101-115. See F. Frankfurter & N. Greene, The Labor Injunction 200-205 (1930).

       The petition for the temporary injunction recited that Carroll and the others against whom the injunction was sought “are presently in Somerset or Wicomico Counties of the State of Maryland.”

       Cf. Frankfurter & Greene, The Labor Injunction, supra.

         There is a danger in relying exclusively on the version of events and dangers presented by prosecuting officials, because of their special interest. Freedman v. Maryland, supra, at 57-58.

       Cf. Williams v. Wallace, 240 F. Supp. 100 (D. C. M. D. Ala. 1965). There District Judge Johnson initially refused to issue an injunction ex parte against the absent state officials. Then, after a hearing at which the plaintiffs submitted a detailed plan for their proposed Selma-Montgomery march, he enjoined the State from interfering with the march as proposed in the plan.