source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    DOMBROWSKI et al. v. EASTLAND et al.
    No. 118.
    Argued February 20, 1967.
    Decided May 15, 1967.

      Arthur Kinoy argued the cause for petitioners. With him on the brief was William M. Kunstler.

      Roger Robb argued the cause for respondents. With him on the brief were Solicitor General Marshall, Assistant Attorney General Sanders and David L. Rose.

   Per Curiam.

The Court of Appeals for the District of Columbia Circuit sustained the order granting summary judgment to the respondents who are, respectively, the Chairman and counsel of the Internal Security Subcommittee of the Judiciary Committee of the United States Senate. Petitioners’ claim is essentially that respondents tortiously entered into and participated in a conspiracy and concert of action with Louisiana officials to seize property and records of petitioners by unlawful means in violation of petitioners’ Fourth Amendment rights. The circumstances of the searches and arrests involved are set forth in Dombrowski v. Pfister, 380 U. S. 479 (1965), and in Judge Wisdom’s dissenting opinion in the District Court in that case, 227 F. Supp. 556, 573 (D. C. E. D. La. 1964). Louisiana courts held the arrests and searches illegal because the warrants secured by the police had not been supported by a showing of probable cause. In a civil suit by these same petitioners against the Louisiana officials allegedly involved in the conspiracy, the Court of Appeals for the Fifth Circuit, reversing a summary judgment in favor of third-party defendants, held that plaintiffs had raised a genuine issue of material fact whether the Chairman “and the other members of the [State] Committee were 'acting in the sphere of legitimate legislative activity,’ which would entitle them to immunity.” Pfister v. Arceneaux, 376 F. 2d 821.

In the present case, the court below recognized “considerable difficulty” in reaching the conclusion that, on the basis of the affidavits of the parties, there were no disputed issues of fact with respect to petitioners’ claim. It nevertheless upheld summary dismissal of the action on the ground that “the record before the District Court contained unchallenged facts of a nature and scope sufficient to give [respondents] an immunity against answer-ability in damages . . . .” In support of this conclusion the court addressed itself to only that part of petitioners’ claims which related to the take-over of the records by respondents after the “raids.” As to this, it held that the subject matter of the seized records was within the jurisdiction of the Senate Subcommittee and that the issuance of subpoenas to the Louisiana committee to obtain the records held by it was validated by subsequent Subcommittee ratification. On this basis, the court held that the acts for which petitioners seek relief were privileged, citing Tenney v. Brandhove, 341 U. S. 367 (1951).

The court did not specifically comment upon petitioners’ contention that the record shows a material dispute of fact as to their claim that respondent Sour-wine actively collaborated with counsel to the Louisiana committee in making the plans for the allegedly illegal “raids” pursuant to the claimed authority of the Louisiana committee and on its behalf, in which petitioners claim that their property and records were seized in violation of their Fourth Amendment rights. In the absence of the factual refinement which can occur only as a result of trial, we need not and, indeed, could not express judgment as to the legal consequences of such collaboration, if it occurred.

There is controverted evidence in the record, such as the date appearing on certain documents which respondents’ evidence disputes as a typographical error, which affords more than merely colorable substance to petitioners’ assertions as to respondent Sourwine. We make no comment as to whether this evidence standing alone would be sufficient to support a verdict in petitioners’ favor against respondent Sourwine, or would require a verdict in his favor. But we believe that, as against an employee of the committee, this showing is sufficient to entitle petitioners to go to trial. In respect of respondent Eastland, we agree with the lower courts that petitioners’ complaint must be dismissed. The record does not contain evidence of his involvement in any activity that could result in liability. It is the purpose and office of the doctrine of legislative immunity, having its roots as it does in the Speech or Debate Clause of the Constitution, Kilbourn v. Thompson, 103 U. S. 168, 204 (1881), that legislators engaged “in the sphere of legitimate legislative activity,” Tenney v. Brandhove, supra, 341 U. S., at 376, should be protected not only from the consequences of litigation’s results but also from the burden of defending themselves. This Court has held, however, that this doctrine is less absolute, although applicable, when applied to officers or employees of a legislative body, rather than to legislators themselves. As the Court said in Tenney v. Brandhove, supra, the doctrine, in respect of a legislator, “deserves greater respect than where an official acting on behalf of the legislature is sued ....” (341 U. S., at 378.) Cf. Wheeldin v. Wheeler, 373 U. S. 647 (1963). In light of this principle, we are compelled to hold that there is a sufficient factual dispute with respect to respondent Sourwine to require reversal of the judgment below as to him.

Accordingly, we affirm the order of the Court of Appeals as to respondent Eastland and reverse and remand to the District Court as to respondent Sourwine for further proceedings in accordance with this opinion.

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

       As the Court pointed out in Tenney, supra (per Frankfurter, J.), in Kilbourn v. Thompson, supra, this Court “allowed a judgment against the Sergeant-at-Arms, but found that one could not be entered against the defendant members of the House.” 341 U. S., at 378.


author: Per Curiam. Mr. Justice Harlan,

text:
    IACURCI v. LUMMUS CO.
    No. 6,
    Misc.
    Decided May 15, 1967.

      Arnold B. Elkind for petitioner.

      Raymond L. Falls, Jr., for respondent.
   Per Curiam.

Petitioner, whose husband was killed while testing the operation of a “skip hoist,” brought this diversity action claiming that respondent had negligently designed the hoist. The Trial Judge submitted this question to the jury in the form of a special interrogatory which asked that the jury, if it found negligent design, “please indicate” which of five specified design aspects of the hoist had been found unsafe. The jury was to answer “Yes” or “No” with respect to each of the five enumerated factors. The jury returned a special verdict for petitioner, answering one of the five subsections of the interrogatory in petitioner’s favor and leaving the other four unanswered. The Trial Judge denied respondent’s motion for judgment notwithstanding the jury’s verdict, and respondent appealed.

The Court of Appeals in its principal opinion concluded that “we must take it that they [the jury] found that Lummus’ negligence was not established” as to the four aspects of design covered by the unanswered subsections of the interrogatory. The court then held that the evidence did not support the jury’s finding of negligence as to the fifth aspect of design and reversed the trial court’s judgment with instructions to enter judgment for respondent. Petitioner sought rehearing in the Court of Appeals, noting her timely objection to the trial court’s use of the special interrogatory and arguing that the Court of Appeals had improperly restricted its review of the evidence to the one aspect of design. Rehearing was denied, one judge again dissenting, and this petition for a writ of certiorari followed.

We do not share the Court of Appeals’ confidence as to the meaning, in light of the trial court’s instructions, of the jury’s failure to answer four subdivisions of the interrogatory. Perhaps the jury intended to resolve these questions in respondent’s favor; but the jury might have been unable to agree on these issues, or it simply might not have passed upon them because it concluded that respondent had negligently designed the hoist in another respect. In either of the latter two situations, petitioner would clearly deserve a new trial, at least as to these unresolved issues of negligence. See Union Pac. R. Co. v. Bridal Veil Lumber Co., 219 F. 2d 825; 5 Moore, Federal Practice ¶ 49.03[4], at 2208 (1964 ed.). Under these circumstances, we think the Court of Appeals erred in directing entry of judgment for respondent; the case should have been remanded to the Trial Judge, who was in the best position to pass upon the question of a new trial in light of the evidence, his charge to the jury, and the jury’s verdict and interrogatory answers. Fed. Rule Civ. Proc. 50 (d). See Neely v. Eby Construction Co., 386 U. S. 317; Weade v. Dichmann, Wright & Pugh, Inc., 337 U. S. 801. Accordingly, the motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted, the judgment of the Court of Appeals is vacated insofar as it directed entry of judgment for respondent, and the case is remanded with instructions to remand to the District Court to determine whether petitioner is entitled to a new trial.

It is so ordered.

Mr. Justice Black would reverse the judgment of the Court of Appeals and reinstate the judgment of the District Court in favor of petitioner.

Mr. Justice Harlan,

dissenting.

In Neely v. Eby Construction Co., 386 U. S. 317, we held that a court of appeals might, despite denial by the trial judge of motions for a new trial and for judgment notwithstanding the verdict, appropriately instruct the district court to enter judgment against the jury-verdict winner. We also recognized in Neely, however, that there might be situations in which the necessity for a new trial would be better determined by the trial court, and that in such situations the court of appeals should return the case to the district court for such an assessment.

In joining Neely, I did not understand the opinion to require this Court to interpose in each case its own judgment of the relative competence of the court of appeals and of the district court to pass on the new trial motion. Rather, I understood Neely to place upon the court of appeals the responsibility for determining “in its informed discretion,” supra, at 329, which, if any, of the issues urged in support of a new trial “should be reserved for the trial court.” Ibid. I think that sound judicial administration demands that this Court should overturn a considered judgment of a court of appeals on such issues only in situations of manifest abuse of discretion.

The Court in this instance states that it does “not share the Court of Appeals’ confidence as to the meaning, in light of the trial court’s instructions, of the jury’s failure to answer” subquestions included in the interrogatories. The ambiguities upon which the Court now relies were earnestly urged by petitioner in her petition for rehearing to the Court of Appeals. Petition for Rehearing 5-6, 7-8. They were, as the Court in Neely intended, before the Court of Appeals for its judgment whether the case should be returned to the District Court for determination of the necessity for a new trial. Had I been sitting on the Court of Appeals I might not have agreed with the view taken of this case by the majority there, but I cannot agree that their conclusion was a manifest abuse Of their “informed discretion.” I hope that this decision does not indicate that the Court is about to embark on a course comparable to that it set for itself in FELA cases.

I would affirm the judgment of the Court of Appeals.

      In addition, one member of the panel concurred and the other dissented. The concurring opinion, though based upon a completely different aspect of this complex case, appears to adopt the interpretation of the interrogatory answers which we find unwarranted.


text:
    AERO MAYFLOWER TRANSIT CO., INC. v. UNITED STATES et al.
    No. 1136.
    Decided May 15, 1967.

      Henry P. Sailer and James L. Beattey for appellant.

      Solicitor General Marshall, Assistant Attorney General Turner, Howard E. Shapiro, Robert W. Ginnane and Fritz R. Kahn for the United States et al., and Alan F. Wohlstetter for Alaska Orient Van Service et al., appellees.
   Per Curiam.

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


text:
    RUBIO v. UNITED STATES.
    No. 710,
    Misc.
    Decided May 15, 1967.
    Petitioner pro se.

      Solicitor General Marshall for the United States.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is reversed. Coppedge v. United States, 369 U. S. 438.


text:
    GERBERDING v. TAHASH, WARDEN.
    No. 1059,
    Misc.
    Decided May 15, 1967.
    Petitioner pro se.t

      Douglas M. Head, Attorney General of Minnesota, William J. Hempel, Deputy Attorney General, and Gerard W. Snell, Acting Solicitor General, for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is reversed. Jackson v. Denno, 378 U. S. 368.


text:
    SKOLNICK v. KERNER, GOVERNOR OF ILLINOIS, et al.
    No. 1401,
    Misc.
    Decided May 15, 1967.
    Appellant pro se.

      William G. Clark, Attorney General of Illinois, and Richard A. Michael, Assistant Attorney General, for appellees.
   Per Curiam.

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


text:
    BANKS v. CALIFORNIA.
    No. 889,
    Misc.
    Decided May 15, 1967.
    Petitioner pro se.

      Thomas C. Lynch, Attorney General of California, Albert W. Harris, Jr., Assistant Attorney General, and Charles W. Rumph, Deputy Attorney General, for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the District Court of Appeal of California, First Appellate District, for further consideration in light of Chapman v. California, 386 U. S. 18.


text:
    AMERICAN TRUCKING ASSOCIATIONS, INC. v. UNITED STATES et al.
    No. 1046.
    Decided May 15, 1967.

      Peter T. Beardsley and Harry J. Jordan for appellant.

      Solicitor General Marshall, Assistant Attorney General Turner, Howard E. Shapiro, Robert W. Ginnane and Leonard S. Goodman for the United States et al., Gerald E. Dwyer and Kenneth H. Landmark for New York Central Transport Co., and Martin L. Cassell, Theodore E. Desch and Walter J. Myskowski for Rock Island Motor Transit Co., appellees.
   Per Curiam.

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


text:
    HOLDING, dba GRAND NEWS v. BLANKENSHIP et al.
    No. 1088.
    Decided May 15, 1967.

      Samuel W. Block, Thomas P. Sullivan and Paul C. Duncan for appellant.
   Per Curiam.

Probable jurisdiction noted as to Question 1. The judgment of the District Court for the Western District of Oklahoma entered November 4,1966, is reversed insofar as it adjudged provisions of §§ 1040.1 to 1040.10 of Title 21 of the Oklahoma Statutes to be constitutional. Bantam Books, Inc. v. Sullivan, 372 U. S. 58. Treating the nonappealable issue presented by Question 2 as if contained in a petition for a writ of certiorari, the petition is denied. See Mishkin v. New York, 383 U. S. 502, 512.

Mr. Justice Harlan concurs in the denial of certiorari as to Question 2, but would affirm the judgment of the District Court as to Question 1.

Mr. Justice White would note probable jurisdiction and set the case for oral argument.


text:
    BLANKENSHIP et al. v. HOLDING, dba GRAND NEWS.
    No. 1089.
    Decided May 15, 1967.

      Charles Nesbitt, Attorney General of Oklahoma, and Jeff Hartmann, Assistant Attorney General, for appellants.

      Samuel W. Block, Thomas P. Sullivan and Paul C. Duncan for appellee.
   Per Curiam.

Probable jurisdiction noted. The judgment of the District Court for the Western District of Oklahoma entered November 4, 1966, is affirmed insofar as it adjudged provisions of §§ 1040.1 to 1040.10 of Title 21 of the Oklahoma Statutes to be unconstitutional.


text:
    WIRTZ, SECRETARY OF LABOR v. LOCAL UNIONS NOS. 9, 9-A, & 9-B, INTERNATIONAL UNION OF OPERATING ENGINEERS.
    No. 1116.
    Decided May 15, 1967.

      Solicitor General Marshall, Assistant Attorney General Sanders, Nathan Lewin, Alan S. Rosenthal, Robert C. McDiarmid, Charles Donahue, Edward D. Friedman and James 'R. Beaird for petitioner.

      J. Albert Woll for respondents.
   Per Curiam.

Upon the joint suggestion of the parties and an independent examination of the case, the petition for a writ of certiorari is granted, the judgments are vacated and the case is remanded with directions to dismiss the complaint as moot.


author: Mr. Justice Douglas

text:
    MOODY et al v. FLOWERS et al.
    No. 624.
    Argued April 17-18, 1967.
    Decided May 22, 1967.

      Charles S. Rhyne argued the cause for appellants in No. 624. With him on the briefs were Brice W. Rhyne and C. R. Lewis.

      Stanley S. Corwin argued the cause for appellants in No. 491. With him on the briefs were Reginald C. Smith, Howard M. Finkelstein and Pierre G. Lundberg.

      Truman Hobbs argued the cause for appellees in No. 624. With him on the brief were MacDonald Gallion, Attorney General of Alabama, and Gordon Madison, Assistant Attorney General.

      Frederic Block and Richard C. Cahn argued the cause and filed a brief for appellees in No. 491.

      Francis X. Beytagh, Jr., argued the cause pro hoc vice for the United States, as amicus curiae, urging reversal in No. 624 and affirmance in No. 491. With him on the brief were Solicitor General Marshall, Assistant Attorney General Doar and Bruce J. Terris.

    Briefs of amici curiae were filed in both cases by Louis J. Lefkowitz, Attorney General, pro se, and Daniel M.

      Cohen, Robert W. Imrie and George D. Zuckerman, Assistant Attorneys General, for the Attorney General of the State of New York, and by Morris H. Schneider and Seymour S. Ross for the County of Nassau. Richard C. Cahn, Walter Maclyn Conlon and Robert G. Dixon, Jr., filed a brief for the Towns of Babylon et al., as amici curiae, urging affirmance in No. 491. Members of the Board of Supervisors of the County of Nassau filed a brief, as amici curiae, in No. 491.

      Together with No. 491, Board of Supervisors of Suffolk County et al. v. Bianchi et al., on appeal from the United States District Court for the Eastern District of New York.

   Mr. Justice Douglas

delivered the opinion of the Court.

The threshold question in these cases is whether this Court has jurisdiction under 28 U. S. C. § 1253 on direct appeals from the decisions of the respective District Courts purportedly convened pursuant to 28 U. S. C. § 2281. The answer to that question in turn depends upon whether the three-judge courts in these cases were properly convened.

In No. 624, appellants attack the validity of an Alabama statute (Ala. Laws 1957, Act No. 9, p. 30) prescribing the apportionment and districting scheme for electing members of the Houston County Board of Revenue and Control. Under the statute, the Board consists of five members, each elected by the qualified electors of the district of which he is a resident. The challenged statute prescribes the areas constituting the various districts. The action is brought against the appellees, including some state officials, seeking a declaration that the statute is invalid and an injunction prohibiting its enforcement, and requesting that the court order at-large elections until the State Legislature redistricts and reapportions the Board on a population basis. The theory is that the apportionment and districting scheme results in the overrepresentation of certain areas and the under-representation of others. The complaint also requested the convening of a three-judge court. A three-judge court was convened and the complaint was dismissed. 256 F. Supp. 195. We noted probable jurisdiction, 385 U. S. 966.

In No. 491, appellees brought an action against appellants, members of the Suffolk County Board of Supervisors, seeking a declaration that so much of § 203 of the Suffolk County Charter (N. Y. Laws 1958, c. 278) as provides that each supervisor shall have one vote as a member of the Suffolk County Board of Supervisors violates the Fourteenth Amendment and an injunction prohibiting the appellants from acting as a Board of Supervisors unless and until a change in their voting strength is made, and requesting the convening of a three-judge court. The 10 towns of Suffolk County, New York, elect, by popular vote, a supervisor every two years. The supervisor is the town’s representative on the Suffolk County Board of Supervisors. Suffolk County Charter § 201. And, each supervisor is entitled to one vote on the County Board of Supervisors. Suffolk County Charter § 203. Pursuant to Art. 9, §§ 1 and 2, of the New York Constitution, the State Legislature approved a charter for the county containing, inter alia, the above provisions. N. Y. Laws 1958, c. 278.

Appellees claim that granting each supervisor one vote regardless of the population of the town which elected him results in an overrepresentation of the towns with small populations and underrepresentation of towns with large populations.

A three-judge court was convened and it declared § 203 of the Suffolk County Charter invalid because in conflict with the Equal Protection Clause of the Fourteenth Amendment, and ordered the Board to submit to the county electorate a plan for reconstruction of the Board so as to insure voter equality. 256 F. Supp. 617. We noted probable jurisdiction. 385 U. S. 966.

This Court has jurisdiction of these direct appeals under 28 U. S. C. § 1253 only if the respective actions were “required ... to be heard and determined by a district court of three judges.” Section 2281 of 28 U. S. C. requires that a three-judge court be convened in any case in which a preliminary or permanent injunction is sought to restrain “the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute . . . .” The purpose of § 2281 is “to prevent a single federal judge from being able to paralyze totally the operation of an entire regulatory scheme . . . by issuance of a broad injunctive order” (Kennedy v. Mendoza-Martinez, 372 U. S. 144, 154) and to provide “procedural protection against an improvident state-wide doom by a federal court of a state’s legislative policy.” Phillips v. United States, 312 U. S. 246, 251. In order for § 2281 to come into play the plaintiffs must seek to enjoin state statutes “by whatever method they may be adopted, to which a State gives her sanction . . . .” American Federation of Labor v. Watson, 327 U. S. 582, 592-593.

The Court has consistently construed the section as authorizing a three-judge court not merely because a state statute is involved but only when a state statute of general and statewide application is sought to be enjoined. See, e. g., Ex parte Collins, 277 U. S. 565; Ex parte Public National Bank, 278 U. S. 101; Rorick v. Board of Commissioners, 307 U. S. 208; Cleveland v. United States, 323 U. S. 329, 332; Griffin v. School Board, 377 U. S. 218, 227-228. The term “statute” in § 2281 does not encompass local ordinances or resolutions. The officer sought to be enjoined must be a state officer; a three-judge court need not be convened where the action seeks to enjoin a local officer (Ex parte Collins, supra; Rorick v. Board of Commissioners, supra) unless he is functioning pursuant to a statewide policy and performing a state function. Spielman Motor Sales Co. v. Dodge, 295 U. S. 89. Nor does the section come into operation where an action is brought against state officers performing matters of purely local concern. Rorick v. Board of Commissioners, supra. And, the requirement that the action seek to enjoin a state officer cannot be circumvented “by joining, as nominal parties defendant, state officers whose action is not the effective means of the enforcement or execution of the challenged statute.” Wilentz v. Sovereign Camp, 306 U. S. 573, 579-580.

In No. 624, the constitutional attack was directed to a state statute dealing with matters of local concern— the apportionment and districting for one county’s governing board. The statute is not a statute of statewide application, but relates solely to the affairs of one county in the State. The fact that state officers were named as defendants cannot change the result.

It is said that, there is enough similarity between this law and the laws governing other Alabama counties as to give this case a statewide interest. It is said that 29 counties having a city of consequence located within their borders have the same “crazy quilt” of malappor-tionment to insure rural voters’ control. It is said that 32 other counties provide for election of county board members at large but with a local residence requirement which insures rural control. It is said that six rural counties elect their governing bodies on an at-large basis with no local residence requirement. We indicate no views on the merits. But we do suggest that even a variety of different devices, working perhaps to the same end, still leaves any one device local rather than statewide for purposes of the statutory three-judge court.

In No. 491, the constitutional attack is directed at provisions of a county charter providing that the county governing board shall be composed of the supervisors of the several towns and that each supervisor shall have one vote. The county charter is similar to a local ordinance, a challenge to which cannot support a three-judge court. The fact that the charter was enacted into state law does not change the result. The charter provisions plainly relate only to one county and the statute enacting the charter is similarly limited. It does not remotely resemble a state statute of general, statewide application. It is a statute dealing solely with matters of local concern. Nor was the action brought against “state officers” within the meaning of the statute; it was brought to enjoin local officers acting solely with reference to local matters.

It is argued, however, that the alleged malapportionment reflected in the charter is also reflected in § 150 and § 153 of the New York County Law, which does have a statewide application, and that the provisions of the charter here challenged are actually interchangeable with § 150 and § 153 of the County Law. It is also argued that to get rid of this alleged malapportionment the Court would have to declare unconstitutional not only the provisions of the charter but also § 150 and §153 of the County Law. The complaint, however, challenges only the charter. It makes no challenge of any statewide law. And the three-judge court considered it as an attack only on the charter. 256 F. Supp. 617.

We therefore do not accept the invitation to get into the niceties of the relationship between the provisions of the charter and the New York County Law, but take the complaint as we find it for purposes of the jurisdictional question, and conclude on the face of the complaint that we have only an alleged malapportionment under a county charter.

Since the “statute” in each of these cases is one of limited application, concerning only a particular county involved in the litigation, a three-judge court was improperly convened. Appeals should, therefore, have been taken to the respective Courts of Appeals, not to this Court. Since the time for perfecting those appeals may have passedj we vacate the judgments and remand the causes to the court which heard each case so that they may enter a fresh decree from which appellants may, if they wish, perfect timely appeals to the respective Courts of Appeals. Phillips v. United States, supra, at 254.

Decrees vacated.

       Section 150 of the N. Y. County Law (1950) provides that “[t]he supervisors of the several cities and towns in each county . . . shall constitute the board of supervisors of the county” and § 153 subd. 4 provides for a majority vote of the supervisors with respect to actions of the Board of Supervisors where “no proportion of the voting strength for such action is otherwise prescribed.” But § 2 of the N. Y. County Law provides that the provisions of the law shall not apply “in so far as they are in conflict with or in limitation of a provision of any alternative form of county government . . . adopted by a county pursuant to section two of article nine of the constitution, or any . . . county government law or civil divisions act enacted by the legislature and applicable to such county . . . , or in conflict with any local law . . . adopted by a county under an optional or alternative form of county government . . . unless a contrary intent is expressly stated in [the law].”

       And see Bianchi v. Griffing, 238 F. Supp. 997, where the three-judge court in this ease denied the motion to dismiss and denied the motion for an injunction against the continued operation of the Board, pending legislative or other political action to correct the alleged malapportionment.


text:
    SAILORS et al. v. BOARD OF EDUCATION OF THE COUNTY OF KENT et al.
    No. 430.
    Argued April 17-18, 1967.
    Decided May 22, 1967.

      Wendell A. Miles argued the cause for appellants. With him on the brief was Roger D. Anderson.

      Paul 0. Strawhecker argued the cause for appellees and filed a brief for Kentwood Public Schools. With him on the brief for the Board of Education of the County of Kent was George R. Cook. On the brief for appellee the Attorney General of Michigan, were Robert A. Derengoski, Solicitor General, and Eugene Krasicky, Assistant Attorney General.

      Francis X. Beytagh, Jr., argued the cause pro hac vice for the United States, as amicus curiae, urging reversal. With him on the brief were Solicitor General Marshall, Assistant Attorney General Doar and Bruce J. Terris.

    Briefs of amici curiae were filed by Louis J. Lejkowitz, Attorney General, pro se, and Daniel M. Cohen, Robert W. Imrie and George D. Zuckerman, Assistant Attorneys General, for the Attorney General of the State of New York, and by Morris H. Schneider and Seymour S. Ross for the County of Nassau.
   Mr. Justice Douglas

delivered the opinion of the Court.

Appellants, qualified and registered electors of Kent County, Michigan, brought this suit in the Federal District Court to enjoin the Board of Education of Kent County from detaching certain schools from the city of Grand Rapids and attaching them to Kent County, to declare the county board to be unconstitutionally constituted, and to enjoin further elections until the electoral system is redesigned. Attack is also made on the adequacy of the statutory standards governing decisions of the county board in light of the requirements of due process. We need not bother with the intricate problems of state law involved in the dispute. For the federal posture of the case is a very limited one. The people of Michigan (qualified school electors) elect the local school boards. No constitutional question is presented as respects those elections. The alleged constitutional questions arise when it comes to the county school board. It is chosen, not by the electors of the county, but by delegates from the local boards. Each board sends a delegate to a biennial meeting and those delegates elect a county board of five members, who need not be members of the local boards, from candidates nominated by school electors. It is argued that this system of choosing county board members parallels the county-unit system which we invalidated under the Equal Protection Clause of the Fourteenth Amendment in Gray v. Sanders, 372 U. S. 368, and violates the principle of “one man, one vote” which we held in that case and in Reynolds v. Sims, 377 U. S. 533, was constitutionally required in state elections. A vast array of facts is assembled showing alleged inequities in a system which gives one vote to every local school board (irrespective of population, wealth, etc.) in the selection of the county board. A three-judge court was convened, and it held by a divided vote that the method of constitution of the county board did not violate the Fourteenth Amendment. 254 F. Supp. 17. We noted probable jurisdiction, 385 U. S. 966.

We conclude that a three-judge court was properly convened, for unlike the situation in Moody v. Flowers, ante, p. 97, this is a case where the state statute that is challenged applies generally to all Michigan county school boards of the type described.

We start with what we said in Reynolds v. Sims, supra, at 575:

“Political subdivisions of States — counties, cities, or whatever — never were and never have been considered as sovereign entities. Rather, they have been traditionally regarded as subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions. As stated by the Court in Hunter v. City of Pittsburgh, 207 U. S. 161, 178, these governmental units are ‘created as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them/ and the ‘number, nature and duration of the powers conferred upon [them] . . . and the territory over which they shall be exercised rests in the absolute discretion of the State/ ”

We find no constitutional reason why state or local officers of the nonlegislative character involved here may not be chosen by the governor, by the legislature, or by some other appointive means rather than by an election. Our cases have, in the main, dealt with elections for United States Senator or Congressman (Gray v. Sanders, supra; Wesberry v. Sanders, 376 U. S. 1) or for state officers (Gray v. Sanders, supra) or for state legislators. Reynolds v. Sims, supra; WMCA, Inc. v. Lomenzo, 377 U. S. 633; Davis v. Mann, 377 U. S. 678; Roman v. Sincock, 377 U. S. 695; Lucas v. Colorado Gen. Assembly, 377 U. S. 713; Marshall v. Hare, 378 U. S. 561.

They were all cases where elections had been provided and cast no light on when a State must provide for the election of local officials.

A State cannot of course manipulate its political subdivisions so as to defeat a federally protected right, as for example, by realigning political subdivisions so as to deny a person his vote because of race. Gomillion v. Light- foot, 364 U. S. 339, 345. Yet as stated in Anderson v. Dunn, 6 Wheat. 204, 226 :

“The science of government is the most abstruse of all sciences; if, indeed, that can be called a science which has but few fixed principles, and practically consists in little more than the exercise of a sound discretion, applied to the exigencies of the state as they arise. It is the science of experiment.”

If we assume arguendo that where a State provides for an election of a local official or agency, the requirements of Gray v. Sanders and Reynolds v. Sims must be met, we are still short of an answer to the present problem and that is whether Michigan may allow its county school boards to be appointed.

When we stated “. . . the state legislatures have constitutional authority to experiment with new techniques” (Day-Brite Lighting, Inc. v. Missouri, 342 U. S. 421, 423), we were talking about the Due Process Clause of the Fourteenth Amendment, as was Mr. Justice Holmes, dissenting in Lochner v. New York, 198 U. S. 45, 75, when he said “. . . a constitution is not intended to embody . . . the organic relation of the citizen to the State . . . .” But as we indicated in Gomillion v. Lightfoot, supra, it is precisely that same approach that we have taken when it comes to municipal and county arrangements within the framework of a State. Save and unless the state, county, or municipal government runs afoul of a federally protected right, it has vast leeway in the management of its internal affairs.

The Michigan system for selecting members of the county school board is basically appointive rather than elective. We need not decide at the present time whether a State may constitute a local legislative body through the appointive rather than the elective process. We reserve that question for other cases such as Board of Supervisors v. Bianchi, ante, p. 97, which we have disposed of on jurisdictional grounds. We do not have that question here, as the County Board of Education performs essentially administrative functions; and while they are important, they are not legislative in the classical sense.

Viable local governments may need many innovations, numerous combinations of old and new devices, great flexibility in municipal arrangements to meet changing urban conditions. We see nothing in the Constitution to prevent experimentation. At least as respects non-legislative officers, a State can appoint local officials or elect them or combine the elective and appointive systems as was done here. If we assume arguendo that where a State provides for an election of a local official or agency — whether administrative, legislative, or judicial — the requirements of Gray v. Sanders and Reynolds v. Sims must be met, no question of that character is presented. For while there was an election here for the local school board, no constitutional complaint is raised respecting that election. Since the choice of members of the county school board did not involve an election and since none was required for these nonlegislative offices, the principle of “one man, one vote” has no relevancy.

Affirmed.

Me. Justice Hablan and Me. Justice Stewaet concur in the result.

       In Michigan the members of the local school district’s board are elected by popular vote of the residents of the district. See Mich. Stat. Ann. § 15.3023 (1959); Mich. Stat. Ann. §§15.3027, 15.3055, 15.3056, 15.3107, 15.3148, 15.3188, 15.3511 (Supp. 1965).

       Mich. Stat. Ann. §§ 15.3294 (1), 15.3295 (1) (Supp. 1965). By Mich. Stat. Ann. §§15.3294 (2)-15.3294 (6) (Supp. 1965), members of the county board may be chosen at popular elections provided the board submits the matter to a referendum and the people approve. So far as we are advised, no such referendum has been held; and the membership of the county board, here challenged, was constituted by electors chosen by the local boards.

       Mich. Stat. Ann. § 15.3294 (1) (Supp. 1965).

       The officers in Gray v. Sanders were: U. S. Senator, Governor, Lieutenant Governor, Justice of the Supreme Court, Judge of the Court of Appeals, Secretary of State, Attorney General, Comptroller General, Commissioner of Labor, and Treasurer.

       Nor can the restraints imposed by the Constitution on the States be circumvented by local bodies to whom the State delegates authority. Standard Computing Scale Co. v. Farrell, 249 U. S. 571, 577; Cooper v. Aaron, 358 U. S. 1, 17.

       The delegates from the local school boards, not the school electors, select the members of the county school board. While the school electors elect the members of the local school boards and the local school boards, in turn, select delegates to attend the meeting at which the county board is selected, the delegates need not cast their votes in accord with the expressed preferences of the school electors. There is not even a formal method by which a delegate can determine the preferences of the people in his district. It is evident, therefore, that the membership of the county board is not determined, directly or indirectly, through an election in which the residents of the county participate. The “electorate” under the Michigan system is composed not of the people of the county, but the delegates from the local school boards.

       The authority of the county board includes the appointment of a county school superintendent (Mich. Stat. Ann. § 15.3298 (1) (b) (Supp. 1965)), preparation of an annual budget and levy of taxes (Mich. Stat. Ann. § 15.3298 (1) (c) (Supp. 1965)), distribution of delinquent taxes (Mich. Stat. Ann. §15.3298 (l)(d) (Supp. 1965)), furnishing consulting or supervisory services to a constituent school district upon request (Mich. Stat. Ann. § 15.3298 (1) (g) (Supp. 1965)), conducting cooperative educational programs on behalf of constituent school districts which request such services (Mich. Stat. Ann. § 15.3298 (1) (i) (Supp. 1965)), and with other intermediate school districts (Mich. Stat. Ann. § 15.3298 (1) (j) (Supp. 1965)), employment of teachers for special educational programs (Mich. Stat. Ann. § 15.3298 (l)(h) (Supp. 1965)), and establishing, at the direction of the Board of Supervisors, a school for children in the juvenile homes (Mich. Stat. Ann. § 15.3298 (1) (k) (Supp. 1965)). One of the board’s most sensitive functions, and the one giving rise to this litigation, is the power to transfer areas from one school district to another. Mich. Stat. Ann. §15.3461 (1959).


text:
    DUSCH et al. v. DAVIS et al.
    No. 724.
    Argued April 17-18, 1967.
    Decided May 22, 1967.

      Harry Frazier III argued the cause for appellants. With him on the briefs was Archibald G. Robertson.

      Henry E. Howell, Jr., argued the cause and filed a brief for appellees.

      Francis X. Beytagh, Jr., argued the cause pro hac vice for the United States, as amicus curiae, urging affirmance. With him on the brief were Solicitor General

      Marshall, Assistant Attorney General Doar and Bruce J. Terris.

    Briefs of amici curiae were filed by Louis J. Lejkowitz, Attorney General, pro se, and Daniel M. Cohen, Robert W. Imrie and George D. Zuckerman, Assistant Attorneys General, for the Attorney General of the State of New York, and by Morris H. Schneider and Seymour S. Ross for the County of Nassau.
   Mr. Justice Douglas

delivered the opinion of the Court.

In 1963 the City of Virginia Beach, Virginia, consolidated with adjoining Princess Anne County, which was both rural and urban; and a borough form of government was adopted. There are seven boroughs, one corresponding to the boundaries of the former city and six corresponding to the boundaries of the six magisterial districts. The consolidation plan was effected pursuant to Virginia law and the charter embodied in the plan was approved by the legislature.

Three boroughs — Bayside, Kempsville, and Lynn-haven — are primarily urban. Three — Blackwater, Princess Anne, and Pungo — are primarily rural. The borough of Virginia Beach, centering around its famous ocean beach and bay, is primarily tourist.

Electors of five boroughs, having exhausted attempts to obtain relief in the state courts, instituted this suit against local and state officials claiming that the consolidation plan in its distribution of voting rights violated the principle of Reynolds v. Sims, 377 U. S. 533, and asking for the convening of a three-judge court. The three-judge court held that its jurisdiction had not been established because the issue was local in character and transferred the cause to the District Court.

The District Court held the original allocation invalid as denying voter equality and stayed further proceedings to allow the city an opportunity to seek a charter amendment at the 1966 session of the State Legislature. The charter was amended to provide for the Seven-Four Plan now being challenged. Under the amended charter, the council is composed of 11 members. Four members are elected at large without regard to residence. Seven are elected by the voters of the entire city, one being required to reside in each of the seven boroughs. Pursuant to leave of the District Court, appellees filed an amended complaint challenging the validity of the Seven-Four Plan. The District Court approved this plan. The Court of Appeals reversed, 361 F. 2d 495. The case is here on appeal (28 U. S. C. § 1254 (2)) and we postponed the question of jurisdiction to the merits. 385 U. S. 999.

For the reasons stated in Moody v. Flowers, ante, p. 97, the case is not one for a three-judge court, the charter being local only and not of statewide application.

In Sailors v. Board of Education, ante, p. 105, we reserved the question whether the apportionment of municipal or county legislative agencies is governed by Reynolds v. Sims. But though we assume arguendo that it is, we reverse the Court of Appeals. It felt that Reynolds v. Sims required “that each legislator, State or municipal, represent a reasonably like number in population,” 361 F. 2d, at 497, pointing out that Blackwater, where 733 people live, will have the same representation as Lynnhaven with 23,731 and Bayside with 29,048 and Kempsville with 13,900. The Court of Appeals reaffirmed what it had decided in Ellis v. Mayor and City Council of Baltimore, 352 F. 2d 123, 128, that “the fundamental principle of representative government in this country is one of equal representation for equal numbers of people, without regard to race, sex, economic status, or place of residence within a State.” And the court held that the provision for four city-wide members “does not remedy or in any way affect the disproportion of representation of the 7 borough members.” 361 F. 2d, at 497.

The Seven-Four Plan makes no distinction on the basis of race, creed, or economic status or location. Each of the 11 councilmen is elected by a vote of all the electors in the city. The fact that each of the seven councilmen must be a resident of the borough from which he is elected, is not fatal. In upholding a residence requirement for the election of state senators from a multi-district county we said in Fortson v. Dorsey, 379 U. S. 433, 438:

“It is not accurate to treat a senator from a multi-district county as the representative of only that district within the county wherein he resides. The statute uses districts in multi-district counties merely as the basis of residence for candidates, not for voting or representation. Each district’s senator must be a resident of that district, but since his tenure depends upon the county-wide electorate he must be vigilant to serve the interests of all the people in the county, and not merely those of people in his home district; thus in fact he is the county’s and not merely the district’s senator.”

By analogy the present consolidation plan uses boroughs in the city “merely as the basis of residence for candidates, not for voting or representation.” He is nonetheless the city’s, not the borough’s, councilman. In Fortson there was substantial equality of population in the senatorial districts, while here the population of the boroughs varies widely. If a borough’s resident on the council represented in fact only the borough, residence being only a front, different conclusions might follow. But on the assumption that Reynolds v. Sims controls, the constitutional test under the Equal Protection Clause is whether there is an “invidious” discrimination. 377 U. S., at 561. As stated by the District Court:

“The principal and adequate reason for providing for the election of one councilman from each borough is to assure that there will be members of the City Council with some general knowledge of rural problems to the end that this heterogeneous city will be able to give due consideration to questions presented throughout the entire area.
“ [T]he history — past and present — of the area and population now comprising the City of Virginia Beach demonstrates the compelling need, at least during an appreciable transition period, for knowledge of rural problems in handling the affairs of one of the largest area-wide cities in the United States. Bluntly speaking, there is a vast area of the present City of Virginia Beach which should never be referred to as a city. District representation from the old County of Princess Anne with elected members of the Board of Supervisors selected only by the voters of the particular district has now been changed to permit city-wide voting. The ‘Seven-Four Plan’ is not an evasive scheme to avoid the consequences of reapportionment or to perpetuate certain persons in office. The plan does not preserve any controlling influence of the smaller boroughs, but does indicate a desire for intelligent expression of views on subjects relating to agriculture which remains a great economic factor in the welfare of the entire population. As the plan becomes effective, if it then operates to minimize or cancel out the voting strength of racial or political elements of the voting population, it will be time enough to consider whether the system still passes constitutional muster.”

The Seven-Four Plan seems to reflect a detente between urban and rural communities that may be important in resolving the complex problems of the modern megalopolis in relation to the city, the suburbia, and the rural countryside. Finding no invidious discrimination we conclude that the judgment of the Court of Appeals must be and is

Reversed.

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

       Va. Code 1950, Tit. 15, Art. 4, c. 9 (1956 Repl. Vol.).

       Va. Acts 1962, c. 147. The consolidation plan was an interim one, the idea being that another system would be initiated not sooner than 1968 and not later than 1971.

        Davis v. Dusch, 205 Va. 676, 139 S. E. 2d 25.

       Va. Acts 1966, c. 39.

       The populations of the seven boroughs are:
      Blaekwater . 733
      Pungo . 2,504
      Princess Anne. 7,211
      Kempsville . 13,900
      Lynnhaven . 23,731
      Bayside . 29,048
      Virginia Beach. 8,091
      It is obvious that, if the percentage of qualified voters is in accord with the population, Lynnhaven and Bayside, if united in their efforts, could elect all 11 councilmen even though the election were at large.


author: Mr. Justice Clark Mb. Justice Brennan Me. Justice Douglas,

text:
    BOUTILIER v. IMMIGRATION AND NATURALIZATION SERVICE.
    No. 440.
    Argued March 14, 1967.
    Decided May 22, 1967.

      Blanch Freedman argued the cause for petitioner. With her on the briefs was Robert Brown.

      Nathan Lewin argued the cause for respondent. On the brief were Solicitor General Marshall, Assistant Attorney General Vinson and Philip R. Monahan.

    Briefs of amici curiae, urging reversal, were filed by David Carliner, Nanette Dembitz and Alan H. Levine for the American Civil Liberties Union et al., and by the Homosexual Law Reform Society of America.
   Mr. Justice Clark

delivered the opinion of the Court.

The petitioner, an alien, has been ordered deported to Canada as one who upon entry into this country was a homosexual and therefore “afflicted with psychopathic personality” and excludable under § 212 (a) (4) of the Immigration and Nationality Act of 1952, 66 Stat. 182, 8 U. S. C. § 1182 (a)(4). Petitioner's appeal from the finding of the Special Inquiry Officer was dismissed by the Board of Immigration Appeals, without opinion, and his petition for review in the Court of Appeals was dismissed, with one judge dissenting. 363 F. 2d 488. It held that the term “psychopathic personality,” as used by the Congress in §212 (a)(4), was a term of art intended to exclude homosexuals from entry into the United States. It further found that the term was not void for vagueness and was, therefore, not repugnant to the Fifth Amendment’s Due Process Clause. We granted certiorari, 385 U. S. 927, and now affirm.

I.

Petitioner, a Canadian national, was first admitted to this country on June 22, 1955, at the age of 21. His last entry was in 1959, at which time he was returning from a short trip to Canada. His mother and stepfather and three of his brothers and sisters live in the United States. In 1963 he applied for citizenship and submitted to the Naturalization Examiner an affidavit in which he admitted that he was arrested in New York in October 1959, on a charge of sodomy, which was later reduced to simple assault and thereafter dismissed on default of the complainant. In 1964, petitioner, at the request of the Government, submitted another affidavit which revealed the full history of his sexual deviate behavior. It stated that his first homosexual experience occurred when he was 14 years of age, some seven years before his entry into the United States. Petitioner was evidently a passive participant in this encounter. His next episode was at age 16 and occurred in a public park in Halifax, Nova Scotia. Petitioner was the active participant in this affair. During the next five years immediately preceding his first entry into the United States petitioner had homosexual relations on an average of three or four times a year. He also stated that prior to his entry he had engaged in heterosexual relations on three or four occasions. During the eight and one-half years immediately subsequent to his entry, and up to the time of his second statement, petitioner continued to have homosexual relations on an average of three or four times a year. Since 1959 petitioner had shared an apartment with a man with whom he had had homosexual relations.

The 1964 affidavit was submitted to the Public Health Service for its opinion as to whether petitioner was ex-cludable for any reason at the time of his entry. The Public Health Service issued a certificate in 1964 stating that in the opinion of the subscribing physicians petitioner “was afflicted with a class A condition, namely, psychopathic personality, sexual deviate” at the time of his admission. Deportation proceedings were then instituted. ‘‘No serious question,” the Special Inquiry Officer found, “has been raised either by the respondent [petitioner here], his counsel or the psychiatrists [employed by petitioner] who have submitted reports on the respondent as to his sexual deviation.” Indeed, the officer found that both of petitioner’s psychiatrists “concede that the respondent has been a homosexual for a number of years but conclude that by reason of such sexual deviation, the respondent is not a psychopathic personality.” Finding against petitioner on the facts, the issue before the officer was reduced to the purely legal question of whether the term “psychopathic personality” included homosexuals and if it suffered illegality because of vagueness.

II.

The legislative history of the Act indicates beyond a shadow of a doubt that the Congress intended the phrase “psychopathic personality” to include homosexuals such as petitioner.

Prior to the 1952 Act the immigration law excluded “persons of constitutional psychopathic inferiority.” 39 Stat. 875, as amended, 8 U. S. C. § 136 (a) (1946 ed.). Beginning in 1950, a subcommittee of the Senate Committee on the Judiciary conducted a comprehensive study of the immigration laws and in its report found “that the purpose of the provision against ‘persons with constitutional psychopathic inferiority’ will be more adequately served by changing that term to ‘persons afflicted with psychopathic personality,’ and that the classes of mentally defectives should be enlarged to include homosexuals and other sex perverts.” S. Rep. No. 1515, 81st Cong., 2d Sess., p. 345. The resulting legislation was first introduced as S. 3455 and used the new phrase “psychopathic personality.” The bill, however, contained an additional clause providing for the exclusion of aliens “who are homosexuals or sex perverts.” As the legislation progressed (now S. 2550 in the 82d Congress), however, it omitted the latter clause “who are homosexuals or sex perverts” and used only the phrase “psychopathic personality.” The omission is explained by the Judiciary Committee Report on the bill:

“The provisio[n] of S. 716 [one of the earlier bills not enacted] which specifically excluded homosexuals and sex perverts as a separate excludable class does not appear in the instant bill. The Public Health Service has advised that the provision for the exclusion of aliens afflicted with psychopathic personality or a mental defect which appears in the instant bill is sufficiently broad to provide for the exclusion of homosexuals and sex perverts. This change of nomenclature is not to he construed in any way as modifying the intent to exclude all aliens who are sexual deviates.” (Emphasis supplied.) S. Rep. No. 1137, 82d Cong., 2d Sess., p. 9.

Likewise, a House bill, H. R. 5678, adopted the position of the Public Health Service that the phrase “psychopathic personality” excluded from entry homosexuals and sex perverts. The report that accompanied the bill shows cléarly that the House Judiciary Committee adopted the recommendation of the Public Health Service that “psychopathic personality” should be used in the Act as a phrase that would exclude from admission homosexuals and sex perverts. H. R. Rep. No. 1365, 82d Cong., 2d Sess. It quoted at length, and specifically adopted, the Public Health Service report which recommended that the term “psychopathic personality” be used to “specify such types of pathologic behavior as homosexuality or sexual perversion.” We, therefore, conclude that the Congress used the phrase “psychopathic personality” not in the clinical sense, but to effectuate its purpose to exclude from entry all homosexuals and other sex perverts.

Petitioner stresses that only persons afflicted with psychopathic personality are excludable. This, he says, is “a condition, physical or psychiatric, which may be manifested in different ways, including sexual behavior.” Petitioner’s contention must fall by his own admissions. For over six years prior to his entry petitioner admittedly followed a continued course of homosexual conduct. The Public Health Service doctors found and certified that at the time of his entry petitioner “was afflicted with a class A condition, namely, psychopathic personality, sexual deviate . . . .” It was stipulated that if these doctors were to appear in the case they would testify to this effect and that “no useful purpose would be served by submitting this additional psychiatric material [furnished by petitioner’s doctors] to the United States Public Health Service . . . .” The Government clearly established that petitioner was a homosexual at entry. Having substantial support in the record, we do not now disturb that finding, especially since petitioner admitted being a homosexual at the time of his entry. The existence of this condition over a continuous and uninterrupted period prior to and at the time of petitioner’s entry clearly supports the ultimate finding upon which the order of deportation was based.

III.

Petitioner says, even so, the section as construed is constitutionally defective because it did not adequately warn him that his sexual affliction at the time of entry could lead to his deportation. It is true that this Court has held the “void for vagueness” doctrine applicable to civil as well as criminal actions. See Small Co. v. Am. Sugar Ref. Co., 267 U. S. 233, 239 (1925). However, this is where “the exaction of obedience to a rule or standard . . . was so vague and indefinite as really to be no rule or standard at all. . . .” In short, the exaction must strip a participant of his rights to come within the principle of the cases. But the “exaction” of § 212 (a) (4) never applied to petitioner’s conduct after entry. The section imposes neither regulation of nor sanction for conduct. In this situation, therefore, no necessity exists for guidance so that one may avoid the applicability of the law. The petitioner is not being deported for conduct engaged in after his entry into the United States, but rather for characteristics he possessed at the time of his entry. Here, when petitioner first presented himself at our border for entrance, he was already afflicted with homosexuality. The pattern was cut, and under it he was not admissible.

The constitutional requirement of fair warning has no applicability to standards such as are laid down in § 212 (a) (4) for admission of aliens to the United States. It has long been held that the Congress has plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden. See The Chinese Exclusion Case, 130 U. S. 581 (1889). Here Congress commanded that homosexuals not be allowed to enter. The petitioner was found to have that characteristic and was ordered deported. The basis of the deportation order was his affliction for a long period of time prior to entry, i. e., six and one-half years before his entry. It may be, as some claim, that “psychopathic personality” is a medically ambiguous term, including several separate and distinct afflictions. Noyes, Modern Clinical Psychiatry 410 (3d ed. 1948). But the test here is what the Congress intended, not what differing psychiatrists may think. It was not laying down a clinical test, but an exclusionary standard which it declared to be inclusive of those having homosexual and perverted characteristics. It can hardly be disputed that the legislative history of § 212 (a)(4) clearly shows that Congress so intended.

But petitioner says that he had no warning and that no interpretation of the section had come down at the time of his 1955 entry. Therefore, he argues, he was unaware of the fact that homosexual conduct engaged in after entry could lead to his deportation. We do not believe that petitioner’s post-entry conduct is the basis for his deportation order. At the time of his first entry he had continuously been afflicted with homosexuality for over six years. To us the statute is clear. It fixes “the time of entry” as the crucial date and the record shows that the findings of the Public Health Service doctors and the Special Inquiry Officer all were based on that date. We find no indication that the post-entry evidence was of any consequence in the ultimate decision of the doctors, the hearing officer or the court. Indeed, the proof was uncontradicted as to petitioner’s characteristic at the time of entry and this brought him within the excludable class. A standard applicable solely to time of entry could hardly be vague as to post-entry conduct.

The petitioner raises other points, including the claim that an “arriving alien” under the Act is entitled to medical examination. Since he is not. an “arriving alien” subject to exclusion, but a deportable alien within an ex-cludable class — who through error was permitted entry— it is doubtful if the requirement would apply. But we need not go into the question since petitioner was twice offered examination and refused to submit himself. He can hardly be heard to complain now. The remaining contentions are likewise without merit.

Affirmed.

Mb. Justice Brennan

dissents for the reasons stated by Judge Moore of the Court of Appeals, 363 F. 2d 488, 496-499.

Me. Justice Douglas,

with whom Me. Justice Foetas concurs, dissenting.

The term “psychopathic personality” is a treacherous one like “communist” or in an earlier day “Bolshevik.” A label of this kind when freely used may mean only an unpopular person. It is much too vague by constitutional standards for the imposition of penalties or punishment.

Cleckley defines “psychopathic personality” as one who has the following characteristics:

(1) Superficial charm and good “intelligence.” (2) Absence of delusions and other signs of irrational “thinking.” (3) Absence of “nervousness” or psycho-neurotic manifestations. (4) Unreliability. (5) Untruthfulness and insincerity. (6) Lack of remorse or shame. (7) Inadequately motivated antisocial behavior. (8) Poor judgment and failure to learn by experience. (9) Pathologic egocentricity and incapacity for love. (10) General poverty in major affective reactions. (11) Specific loss of insight. (12) Unresponsiveness in general interpersonal relations. (13) Fantastic and uninviting behavior with drink and sometimes without. (14) Suicide rarely carried out. (15) Sex life impersonal, trivial and poorly integrated. (16) Failure to follow any life plan. Cleckley, The Mask of Sanity 238-255 (1941).

The word “psychopath” according to some means “a sick mind.” Guttmacher & Weihofen, Psychiatry and the Law 86 (1952):

“In the light of present knowledge, most of the individuals called psychopathic personalities should probably be considered as suffering from neurotic character disorders. They are, for the most part, unhappy persons, harassed by tension and anxiety, who are struggling against unconscious conflicts which were created during the very early years of childhood. The nature and even the existence of these conflicts which drive them restlessly on are unknown to them. When the anxiety rises to a certain pitch, they seek relief through some antisocial act. The frequency with which this pattern recurs in the individual is dependent in part upon the intensity of the unconscious conflict, upon the tolerance for anxiety, and upon chance environmental situations which may heighten or decrease it. One of the chief diagnostic criteria of this type of neurotically determined delinquency is the repetitiveness of the pattern. The usual explanation, as for example, that the recidivistic check-writer has just ‘got in the habit of writing bad checks’ is meaningless.” Id., at 88-89.

Many experts think that it is a meaningless designation. “Not yet is there any common agreement ... as to classification or . . . etiology.” Noyes, Modern Clinical Psychiatry 410 (3d ed. 1948). “The only conclusion that seems warrantable is that, at some time or other and by some reputable authority, the term psychopathic personality has been used to designate every conceivable type of abnormal character.” Curran & Mallinson, Psychopathic Personality, 90 J. Mental Sci. 266, 278. See also Guttmacher, Diagnosis and Etiology of Psychopathic Personalities as Perceived in Our Time, in Current Problems in Psychiatric Diagnosis 139, 154 (Hoch & Zubin ed. 1953); Tappan, Sexual Offences and the Treatment of Sexual Offenders in the United States, in Sexual Offences 500, 507 (Radzinowicz ed. 1957). It is much too treacherously vague a term to allow the high penalty of deportation to turn on it.

When it comes to sex, the problem is complex. Those “who fail to reach sexual maturity (hetero-sexuality), and who remain at a narcissistic or homosexual stage” are the products “of heredity, of glandular dysfunction, [or] of environmental circumstances.” Henderson, Psychopathic Constitution and Criminal Behaviour, in Mental Abnormality and Crime 105, 114 (Radzinowicz & Turner ed. 1949).

The homosexual is one, who by some freak, is the product of an arrested development:

“All people have originally bisexual tendencies which are more or less developed and which in the course of time normally deviate either in the direction of male or female. This may indicate that a trace of homosexuality, no matter how weak it may be, exists in every human being. It is present in the adolescent stage, where there is a considerable amount of undifferentiated sexuality.” Abrahamsen, Crime and the Human Mind 117 (1944).

Many homosexuals become involved in violations of laws; many do not. Kinsey reported:

“It is not possible to insist that any departure from the sexual mores, or any participation in socially taboo activities, always, or even usually, involves a neurosis or psychosis, for the case histories abundantly demonstrate that most individuals who engage in taboo activities make satisfactory social adjustments. There are, in actuality, few adult males who are particularly disturbed over their sexual histories. Psychiatrists, clinical psychologists, and others who deal with cases of maladjustment, sometimes come to feel that most people find difficulty in adjusting their sexual lives; but a clinic is no place to secure incidence figures. The incidence of tuberculosis in a tuberculosis sanitarium is no measure of the incidence of tuberculosis in the population as a whole; and the incidence of disturbance over sexual activities, among the persons who come to a clinic, is no measure of the frequency of similar disturbances outside of clinics. The impression that such ‘sexual irregularities’ as ‘excessive’ masturbation, pre-marital intercourse, responsibility for a premarital pregnancy, extra-marital intercourse, mouth-genital contacts, homosexual activity, or animal intercourse, always produce psychoses and abnormal personalities is based upon the fact that the persons who do go to professional sources for advice are upset by these things.
“It is unwarranted to believe that particular types of sexual behavior are always expressions of psychoses or neuroses. In actuality, they are more often expressions of what is biologically basic in mammalian and anthropoid behavior, and of a deliberate disregard for social convention. Many of the socially and intellectually most significant persons in our histories, successful scientists, educators, physicians, clergymen, business men, and persons of high position in governmental affairs, have socially taboo items in their sexual histories, and among them they have accepted nearly the whole range of so-called sexual abnormalities. Among the socially most successful and personally best adjusted persons who have contributed to the present study, there are some whose rates of outlet are as high as those in any case labelled nymphomania or satyriasis in the literature, or recognized as such in the clinic.” Kinsey, Sexual Behavior in the Human Male 201-202 (1948).

It is common knowledge that in this century homosexuals have risen high in our own public service — both in Congress and in the Executive Branch — and have served with distinction. It is therefore not credible that Congress wanted to deport everyone and anyone who was a sexual deviate, no matter how blameless his social conduct had been nor how creative his work nor how valuable his contribution to society. I agree with Judge Moore, dissenting below, that the legislative history should not be read as imputing to Congress a purpose to classify under the heading “psychopathic personality” every person who had ever had a homosexual experience:

“Professor Kinsey estimated that ‘at least 37 per cent’ of the American male population has at least one homosexual experience, defined in terms of physical contact to the point of orgasm, between the beginning of adolescence and old age. Kinsey, Pom-eroy & Martin, Sexual Behavior in the Human Male 623 (1948). Earlier estimates had ranged from one per cent to 100 per cent. Id. at 616-622. The sponsors of Britain’s current reform bill on homosexuality have indicated that one male in 25 is a homosexual in Britain. To label a group so large ‘excludable aliens’ would be tantamount to saying that Sappho, Leonardo da Yinci, Michelangelo, Andre Gide, and perhaps even Shakespeare, were they to come to life again, would be deemed unfit to visit our shores. Indeed, so broad a definition might well comprise more than a few members of legislative bodies.” 363 F. 2d 488, 497-498.

The Public Health Service, from whom Congress borrowed the term “psychopathic personality” (H. R. Rep. No. 1365, 82d Cong., 2d Sess., 46-47) admits that the term is “vague and indefinite.” Id., at 46.

If we are to hold, as the Court apparently does, that any acts of homosexuality suffice to deport the alien, whether or not they are part of a fabric of antisocial behavior, then we face a serious question of due process. By that construction a person is judged by a standard that is almost incapable of definition. I have already quoted from clinical experts to .show what a wide range the term “psychopathic personality” has. Another expert classifies such a person under three headings:

Acting: (1) inability to withstand tedium, (2) lack of a sense of responsibility, (3) a tendency to “blow up” under pressure, (4) maladjustment to law and order, and (5) recidivism.

Feeling: they tend to (1) be emotionally deficient, narcissistic, callous, inconsiderate, and unremorseful, generally projecting blame on others, (2) have hair-trigger emotions, exaggerated display of emotion, and be irritable and impulsive, (3) be amoral (socially and sexually) and (4) worry, but do nothing about it.

Thinking: they display (1) defective judgment, living for the present rather than for the future, and (2) inability to profit from experience, i. e., they are able to realize the consequences intelligently, but not to evaluate them.

We held in Jordan v. De George, 341 U. S. 223, that the crime of a conspiracy to defraud the United States of taxes involved “moral turpitude” and made the person subject to deportation. That, however, was a term that has “deep roots in the law.” Id., at 227. But the grab-bag — “psychopathic personality” — has no “deep roots” whatsoever. Caprice of judgment is almost certain under this broad definition. Anyone can be caught who is unpopular, who is off-beat, who is nonconformist.

Deportation is the equivalent to banishment or exile. Fong Haw Tan v. Phelan, 333 U. S. 6, 10. Though technically not criminal, it practically may be. The penalty is so severe that we have extended to the resident alien the protection of due process. Wong Yang Sung v. McGrath, 339 U. S. 33. Even apart from deportation cases, we look with suspicion at those delegations of power so broad as to allow the administrative staff the power to formulate the fundamental policy. See Watkins v. United States, 354 U. S. 178, 203-205; Kent v. Dulles, 357 U. S. 116. In the Watkins case we were protecting important First Amendment rights. In the Kent case we were protecting the right to travel, an important ingredient of a person’s “liberty” within the meaning of the Fifth Amendment. We deal here also with an aspect of “liberty” and the requirements of due process. They demand that the standard be sufficiently clear as to forewarn those who may otherwise be entrapped and to provide full opportunity to conform. “Psychopathic personality” is so broad and vague as to be hardly more than an epithet. The Court seeks to avoid this question by saying that the standard being applied relates only to what petitioner had done prior to his entry, not to his postentry conduct. But at least half of the questioning of this petitioner related to his postentry conduct.

Moreover, the issue of deportability under § 212 (a) of the Immigration and Nationality Act of 1952 turns on whether petitioner is “afflicted with psychopathic personality.” On this 1 think he is entitled to a hearing to satisfy both the statute and the requirement of due process.

One psychiatrist reported:

“On psychiatric examination of Mr. Boutilier, there was no indication of delusional trend or hallucinatory phenomena. He is not psychotic. From his own account, he has a psychosexual problem but is beginning treatment for this disorder. Diagnostically, I would consider him as having a Character Neurosis, believe that the prognosis in therapy is reasonably good and do not think he represents any risk of decompensation into a dependent psychotic reaction nor any potential for frank criminal activity.”

Another submitted a long report ending as follows:

“The patient’s present difficulties obviously weigh very heavily upon him. He feels as if he has made his life in this country and is deeply disturbed at the prospect of being cut off from the life he has created for himself. He talks frankly about himself. What emerged out of the interview was not a picture of a psychopath but that of a dependent, immature young man with a conscience, an awareness of the feelings of others and a sense of personal honesty. His sexual structure still appears fluid and immature so that he moves from homosexual to heterosexual interests as well as abstinence with almost equal facility. His homosexual orientation seems secondary to a very constricted, dependent personality pattern rather than occurring in the context of a psychopathic personality. My own feeling is that his own need to fit in and be accepted is so great that it far surpasses his need for sex in any form.
“I do not believe that Mr. Boutilier is a psychopath.”

In light of these statements, I cannot say that it has been determined that petitioner was “afflicted” in the statutory sense either at the time of entry or at present. “Afflicted” means possessed or dominated by. Occasional acts would not seem sufficient. “Afflicted” means a way of life, an accustomed pattern of conduct. Whatever disagreement there is as to the meaning of “psychopathic personality,” it has generally been understood to refer to a consistent, lifelong pattern of behavior conflicting with social norms without accompanying guilt. Cleckley, supra, at 29. Nothing of that character was shown to exist at the time of entry. The fact that he presently has a problem, as one psychiatrist said, does not mean that he is or was necessarily “afflicted” with homosexuality. His conduct is, of course, evidence material to the issue. But the informed judgment of experts is needed to make the required finding. We cruelly mutilate the Act when we hold otherwise. For we make the word of the bureaucrat supreme, when it was the expertise of the doctors and psychiatrists on which Congress wanted the administrative action to be dependent.

      “Sec. 212. (a) Except as otherwise provided in this Act, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States:
      “(4) Aliens afflicted with psychopathic personality, epilepsy, or a mental defect . . . .”
      Section 241(a)(1) of the Immigration and Nationality Act, 66 Stat. 204, 8 U. S. C. § 1251 (a)(1), provides that: “Any alien in the United States . . . shall, upon the order of the Attorney General, be deported who — (1) at the time of entry was within one or more of the classes of aliens excludable by the law existing at the time of such entry . . . .”

       “Homosexual activity in the human male is much more frequent than is ordinarily realized .... In the youngest unmarried group, more than a quarter (27.3%) of the males have some homosexual activity to the point of orgasm .... The incidence among these single males rises in successive age groups until it reaches a maximum of 38.7 per cent between 36 and 40 years of age.
      “High frequencies do not occur as often in the homosexual as they do in some other kinds of sexual activity .... Populations are more homogeneous in regard to this outlet. This may reflect the difficulties involved in having frequent and regular relations in a socially taboo activity. Nevertheless, there are a few of the younger adolescent males who have homosexual frequencies of 7 or more per week, and between 26 and 30 the maximum frequencies run to 15 per week. By 50 years of age the most active individual is averaging only 5.0 per week.
      “For single, active populations, the mean frequencies of homosexual contacts . . . rise more or less steadily from near once per week ... for the younger adolescent boys to nearly twice as often . . . for males between the ages of 31 and 35. They stand above once a week through age 50.” Kinsey, Sexual Behavior in the Human Male 259-261 (1948).

       Report, Committee on Homosexual Offenses and Prostitution (1957).

       Sigmund Freud wrote in 1935:
      “Homosexuality is assuredly no advantage, but it is nothing to be ashamed of, no vice, no degradation, it cannot be classified as an illness; we consider it to be a variation of the sexual function produced by a certain arrest of sexual development. Many highly respectable individuals of ancient and modern times have been homosexuals, several of the greatest men among them (Plato, Michelangelo, Leonardo da Vinci, etc.). It is a great injustice to persecute homosexuality as a crime, and cruelty too. If you do not believe me, read the books of Havelock Ellis.” Ruitenbeek, The Problem of Homosexuality in Modem Society 1 (1963).

       Caldwell, Constitutional Psychopathic State (Psychopathic Personality) Studies of Soldiers in the U. S. Army, 3 J. Crim. Psychopathology 171-172 (1941).

       See Lindman & McIntyre, The Mentally Disabled and the Law 299 (1961).

       There is good indication that Congress intended the term “afflicted with psychopathic personality” to refer only to those individuals demonstrating “developmental defects or pathological trends in the personality structure manifested] by lifelong patterns of action or behavior . . . .” U. S. Public Health Service, Report on Medical Aspects of H. R. 2379, U. S. Code Cong. & Admin. News 1700 (1952). The provision for exclusion of persons afflicted with psychopathic personality replaced the section of the 1917 Act, 39 Stat. 875, providing for the exclusion of “persons of constitutional psychopathic inferiority.” The purpose of that clause was “to keep out 'tainted blood,’ that is, ‘persons who have medical traits which would harm the people of the United States if those traits were introduced in this country, or if those possessing those traits were added to those in this country who unfortunately are so afflicted.’ ” The Immigration and Naturalization Systems of the United States, S. Rep. No. 1515, 81st Cong., 2d Sess., 343 (1950). The Senate subcommittee which had been charged with making an investigation of -the immigration laws concluded that “the exclusion of persons with ‘constitutional psychopathic inferiority’ was aimed at keeping out of the country aliens with a propensity to mental aberration, those with an inherent likelihood of becoming mental cases, as indicated by their case history.” Ibid. It concluded that “the purpose of the provision against ‘persons with constitutional psychopathic inferiority’ will be more adequately served by changing that term to ‘persons afflicted with psychopathic personality,' and that the classes of mentally defectives should be enlarged to include homosexuals and other sex perverts.” Id., at 345. Senate Report 1515 accompanied Senate bill 3455, which included among excludable aliens “[a]liens afflicted with psychopathic personality,” and “[a]liens who are homosexuals or sex perverts.” The bill was redrafted and became S. 716, with its counterpart in the House being H. R. 2379; the material provisions remained the same as in S. 3455. In response to the House’s request for its opinion on the new provisions, the Public Health Service noted that-
      “The conditions classified within the group of psychopathic personalities are, in effect, disorders of the personality. They are characterized by developmental defects or pathological trends in the personality structure manifest by lifelong patterns of action or behavior, rather than by mental or emotional symptoms. Individuals with such a disorder may manifest a disturbance of intrinsic personality patterns, exaggerated personality trends, or are persons ill primarily in terms of society and the prevailing culture. The latter or sociopathic reactions are frequently symptomatic of a severe underlying neurosis or psychosis and frequently include those groups of individuals suffering from addiction or sexual deviation.” U. S. Code Cong. & Admin. News 1700 (1952).
      The letter setting forth the views of the Public Health Service went on to say, with respect to the exclusion of “homosexuals or sex perverts”:
      “Ordinarily, persons suffering from disturbances in sexuality are included within the classification of 'psychopathic personality with pathologic sexuality.’ This classification will specify such types of pathologic behavior as homosexuality or sexual perversion which includes sexual sadism, fetishism, transvestism, pedophilia, etc.” Id., at 1701. The bill which was finally enacted, H. R. 5678, provided for exclusion of “[ajliens afflicted with psychopathic personality,” but did not provide for exclusion of aliens who are homosexuals or sex perverts, as had its predecessors. The House Report, H. R. Rep. No. 1365, which accompanied the bill incorporated the full report of the Public Health Service (H. R. Rep. No. 1365, 82d Cong., 2d Sess., at 46-48) and indicated that the “recommendations contained in the . . . report have been followed.” Id., at 48.
      This legislative history indicates that the term “afflicted with psychopathic personality” was used in a medical sense and was meant to refer to lifelong patterns of action that are pathologic and symptomatic of grave underlying neurosis or psychosis. Homosexuality and sex perversion, as a subclass, are limited to the same afflictions.