author: Mr. Justice Clark Mr. Justice Black, Mr. Justice Goldberg,

text:
    MINNESOTA MINING & MANUFACTURING CO. v. NEW JERSEY WOOD FINISHING CO.
    No. 291.
    Argued April 29, 1965.
    Decided May 24, 1965.

      Sidney P. Howell, Jr., argued the cause for petitioner. With him on the briefs were Charles C. Trelease and Edwin E. McAmis.

      Albert O. Besser argued the cause and filed a brief for respondent.

      Lewis C. Oreen and Gustav B. Margraf filed a brief for Reynolds Metals Co., as amicus curiae, urging reversal.
    Briefs of amici curiae, urging affirmance, were filed by Solicitor General Cox, Assistant Attorney General Orrick, Frank Goodman, Robert B. Hummel and Irwin A. Seibel for the United States, and by Alex Akerman, Jr., Thomas A. Ziebarth and Robert E. Staed for Highland Supply Corp.
   Mr. Justice Clark

delivered the opinion of the Court.

This private treble-damage antitrust action was brought by the New Jersey Wood Finishing Company against Minnesota Mining and Manufacturing Company and the Essex Wire Corporation. Respondent’s original complaint was filed on November 20,1961. It alleged violations of § 7 of the Clayton Act, a conspiracy to restrain commerce in electrical insulation products in violation of § 1 of the Sherman Act and an attempt to monopolize the same as prohibited by § 2. The substance of the complaint concerned the acquisition in 1956 of all the assets of Insulation and Wires, Inc., a subsidiary of Essex, by Minnesota Mining and an alleged conspiracy to restrain trade in electrical insulation products. The latter claimed that the suit was barred by the four-year limitation provision of the Clayton Act. However, New Jersey Wood asserted that the bar of the statute had been tolled by a proceeding filed in 1960 against Minnesota Mining by the Federal Trade Commission under § 7 of the Clayton Act. That action resulted in a consent order under which Minnesota Mining was directed to divest itself of the assets acquired. Section 5 (b) of the Clayton Act provides that a “civil or criminal proceeding . . . instituted by the United States to prevent, restrain, or punish violations of any of the antitrust laws” suspends the running of the statute of limitations during the pendency thereof and for one year thereafter with respect to private actions arising under those laws and based on any matter complained of in the government suit. The questions here are whether proceedings by the Federal Trade Commission toll the running of the § 4B statute of limitations to the same extent as do judicial proceedings and, if they do, whether the claim of New Jersey Wood is based on “any matter complained of” in the Commission action. The District Court denied Minnesota Mining’s motion to dismiss, holding that the four-year statute had been tolled by § 5 (b) and that this suit was timely filed. 216 F. Supp. 507. The Court of Appeals affirmed. 332 F. 2d 346. We granted certiorari because of a conflict between circuits and the importance of the question in the administration of the Clayton Act. 379 U. S. 877.

I.

New Jersey Wood is engaged in the manufacture of electrical insulation materials, some of which it sells to independent distributors who, in turn, sell to wire and cable manufacturers and fabricators. Minnesota Mining is a diversified company, with one of its divisions producing electrical insulation materials. Essex is a substantial consumer of electrical insulation material. It owned Insulation Wires which distributes that type of material.

In August 1956 Minnesota Mining bought all the assets of Insulation Wires and in 1960 the Federal Trade Commission filed a proceeding against it under § 7 of the Clayton Act which resulted in a consent order directing the divestiture by Minnesota Mining of the assets so acquired. This order was dated August 24, 1961. The Commission charged that prior to 1953 Minnesota Mining was the leading manufacturer of electrical insulation tape; that through five transactions in the years 1952 through 1956 it had also brought under its control substantial shares of other major electrical product lines; and that its subsequent acquisition of two of the three largest distributors of these products might have the effect of actually or potentially lessening competition and tending to create a monopoly in various aspects of that commerce. One of the two distributors so acquired was Insulation Wires.

Thereafter, within a year, this suit was filed. We need not detail the allegations of the complaint. It is sufficient to say that the gist of it was that prior to August 1956 Insulation Wires was the primary distributor of New Jersey Wood products throughout the United States; that in August 1956 Minnesota Mining acquired all of the assets of Insulation Wires and during the next month notified New Jersey Wood that beginning in January 1957 Insulation Wires would no longer distribute its products. The complaint also charged Minnesota Mining and Essex with conspiring to restrain trade and commerce in the manufacture, sale and distribution of electrical insulation products beginning with the acquisition of Insulation Wires and continuing until the filing of this suit. There were numerous overt acts alleged as being in furtherance of the conspiracy, the first of which was that acquisition.

h-i H-Í

At the outset it is necessary to examine § 5 (a) of the Clayton Act and its relationship to § 5 (b). The former makes a final judgment or decree in any civil or criminal proceeding brought by or on behalf of the United States prima facie evidence in subsequent private suits “as to all matters respecting which said judgment or decree would be an estoppel as between the parties thereto.” Several distinctions between these sections are apparent and suggest that they are not wholly interdependent. First, the words “final judgment or decree” are used in § 5 (a) and are of crucial significance in its application. However, § 5 (b) tolls the statute of limitations set out in § 4B from the time suit is instituted by the United States regardless of whether a final judgment or decree is ultimately entered. Its applicability in no way turns on the success of the Government in prosecuting its case. Moreover, under § 5 (a) the judgment or decree may be used only as to matters respecting which it would operate as an estoppel between the parties. No such limitation appears in the tolling provision. It applies to every private right of action based in whole or in part on “any matter” complained of in the government suit.

When we turn from the express language of these two statutory provisions to the congressional policies underlying them, it becomes even more apparent that the applicability of § 5 (a) to Federal Trade Commission actions should not control the question whether such proceedings toll the statute of limitations. We have discussed these policies at greater length below. At this juncture it is sufficient to say that in framing § 5 (a) Congress focused on the narrow issue of the use by private parties of judgments or decrees as prima facie evidence. This was recognized in Emich Motors Corp. v. General Motors Corp., 340 U. S. 558 (1951), where we stated that the purpose of § 5 (a) was “to minimize the burdens of litigation for injured private suitors by making available to them all matters previously established by the Government in antitrust actions” and to permit them “as large an advantage as the estoppel doctrine would afford had the Government brought suit.” Id., at 568. As we shall show, however, its purpose in adopting § 5 (b) was not so limited, for it was not then dealing with the delicate area in which a judgment secured in an action between two parties may be used by a third. Whatever ambiguities may exist in the legislative history of these provisions as to other questions, it is plain that in § 5 (b) Congress meant to assist private litigants in utilizing any benefits they might cull from government antitrust actions. See S. Rep. No. 619, 84th Cong., 1st Sess., 6. The distinction was emphasized in Union Carbide & Carbon Corp. v. Nisley, 300 F. 2d 561 (1962), where the court, after noting the analysis of § 5 (a) set out in Emich Motors Corp., supra, stated that:

“The corollary purpose of the tolling provisions of the second paragraph of Section 5 [now § 5 (b) ] is to vouchsafe the intended benefits of related government proceedings by suspending the running of the statute of limitations until the termination of the government proceedings, and allowing the private suitor one year thereafter in which to prepare and file his suit. The competency of a government judgment in a private suit is necessarily restricted to the requirements of due process. But the tolling of the statute during the pendency of the government litigation is not so limited.” Id., at 569.

In our view, therefore, the two sections are not necessarily coextensive; they are governed by different considerations as well as congressional policy objectives. This makes § 5 (b) readily severable from § 5 (a). Even if we assumed arguendo that § 5 (a) is inapplicable to Commission proceedings — a question upon which we venture no opinion — that conclusion would be immaterial in our consideration of § 5 (b) and § 4B. Congress has expressed its belief that private antitrust litigation is one of the surest weapons for effective enforcement of the antitrust laws. This construction will lend considerable impetus to that policy.

III.

Section 5, later §§ 5 (a) and 5 (b), was passed in response to the plea of President Wilson. In a speech to the Congress on January 20, 1914, he urged that a law be enacted which would permit victims of antitrust violations to have “redress upon the facts and judgments proved and entered in suits by the Government” and that “the statute of limitations ... be suffered to run against such litigants only from the date of the conclusion of the Government’s action.” 51 Cong. Rec. 1964. The broad aim of this enactment was to use “private self-interest as a means of enforcement” of the antitrust laws. Bruce’s Juices, Inc. v. American Can Co., 330 U. S. 743, 751 (1947). The “entire provision [was] intended to help persons of small means who are injured in their property or business by combinations or corporations violating the antitrust laws.” H. R. Rep. No. 627, 63d Cong., 2d Sess., 14. See S. Rep. No. 619, supra, at 6.

It may be, as Minnesota Mining contends, that when it was enacted the tolling provision was a logical backstop for the prima facie evidence clause of § 5 (a). But even though § 5 (b) complements § 5 (a) in this respect by permitting a litigant to await the outcome of government proceedings and use any judgment or decree rendered therein- — a benefit which often is of limited practical value- — it is certainly not restricted to that effect. As we have pointed out, the textual distinctions as well as the policy basis of § 5 (b) indicate that it was to serve a more comprehensive function in the congressional scheme of things. The Government’s initial action may aid the private litigant in a number of other ways. The pleadings, transcripts of testimony, exhibits and documents are available to him in most instances. In fact, the rules of the Commission so provide. 16 CFR § 1.132 (e). See generally 16 CFR § 1.131 et seq. Moreover, difficult questions of law may be tested and definitively resolved before the private litigant enters the fray. The greater resources and expertise of the Commission and its staff render the private suitor a tremendous benefit aside from any value he may derive from a judgment or decree. Indeed, so useful is this service that government proceedings are recognized as a major source of evidence for private parties. See Bicks, The Department of Justice and Private Treble Damage Actions, 4 Antitrust Bull. 5 (1959); Loevinger, Handling a Plaintiff’s Antitrust Damage Suit, 4 Antitrust Bull. 29 (1959).

Admittedly, there is little in the legislative history to suggest that Congress consciously intended to include Commission actions within the sweep of the tolling provision. But neither is there any substantial evidence that it consciously intended to exclude them. The fact of the matter is that the record of the 1914 legislative proceedings reveals an almost complete absence of any discussion on the tolling problem. It seems that Congress simply did not consider the extent of its coverage in the course of its deliberations.

It is in light of this legislative silence that we must determine whether § 4B is tolled by Commission proceedings. In resolving this question we must necessarily rely on the one element of congressional intention which is plain on the record — the clearly expressed desire that private parties be permitted the benefits of prior government actions. Implicit in such an objective is the necessity that the tolling provision include Commission proceedings. Otherwise the benefits flowing from a major segment of the Government’s enforéement effort would, in many cases, be denied to private parties. In this connection, and of crucial significance, is the fact that the potential advantages available to such litigants because of § 5 (b) reach far beyond the specific and limited benefits accruing to them under § 5 (a). Furthermore, the § 5 (b) advantages flow as naturally from Commission proceedings as they do from Justice Department actions. Yet petitioner contends that § 4B must be tolled in the latter but not in the former. Such a grudging interpretation of the interrelationship of § 5 (b) and § 4B, however, would collide head-on with Congress’ basic policy objectives. Acceptance of petitioner’s position would make enjoyment of these intended benefits turn on the arbitrary allocation of enforcement responsibility between the Department and the Commission, and we must therefore reject it.

It is true that the precise language of § 5 (b) does not clearly encompass Commission proceedings. But it is not the literal wording of such a provision that is controlling where, as here, Congress has evidenced neither acceptance nor rejection of either interpretation, yet one effects a clearly expressed congressional purpose while the other defeats it. We stated the pivotal question for determination in such an event only this Term in Burnett v. New York Central R. Co., 380 U. S. 424, 427 (1965): “[WJhether congressional purpose is effectuated by tolling the statute of limitations in given circumstances.” In order to determine that intent, we must examine “the purposes and policies underlying the limitation provision, the Act itself, and the remedial scheme developed for the enforcement of the rights given by the Act.” Ibid. Guided by these criteria, we think it clear that congressional policy sustaining § 5 (b) would be effectively served only by tolling the statute of limitations in cases such as this, and we deem that policy controlling. This analysis is not a novel one. Mr. Justice Holmes, sitting on circuit, noted in Johnson v. United States, 163 F. 30, 32:

“A statute may indicate or require as its justification a change in the policy of the law, although it expresses that change only in the specific cases most likely to occur to the mind. The Legislature has the power to decide what the policy of the law shall be, and if it has intimated its will, however indirectly, that will should be recognized and obeyed. The major premise of the conclusion expressed in a statute, the change of policy that induces the enactment, may not be set out in terms, but it is not an adequate discharge of duty for courts to say: We see what you are driving at, but you have not said it, and therefore we shall go on as before.”

We hold, therefore, that the limitation provision of § 4B is tolled by Commission proceedings to the same extent and in the same circumstances as it is by Justice Department actions. In so holding we give effect to Congress’ basic policy objectives in enacting § 5 (b) — objectives which would be frustrated should we reach a contrary conclusion and thereby deprive large numbers of private litigants of the benefits of government antitrust suits simply because those suits were pursued by one governmental agency rather than the other.

IV.

Minnesota Mining further contends that even though § 5 (b) tolls Commission proceedings, the suit here, insofar as it asserts Sherman Act claims, is not based in part on any matter complained of in the Commission’s proceeding. We cannot agree.

New Jersey Wood’s Sherman Act claims rest on an alleged conspiracy to restrain and attempt to monopolize trade and commerce in the manufacture, sale and distribution of electrical insulation products. The purposes of the conspiracy were alleged to be: (1) to control Insulation Wires; (2) to prevent' it from distributing New Jersey Wood products; (3) to insure that Insulation Wires’ supplies were purchased from a Minnesota Mining subsidiary; (4) to effect tie-in sales of electrical insulation products with other Minnesota Mining products; and (5) to have Essex deal only with Insulation Wires in purchasing electrical insulation products to the exclusion of competitive distributors handling New Jersey Wood products. The effect of the conspiracy was alleged to be the complete disruption of the pattern of manufacture, sale and distribution that New Jersey Wood had enjoyed with Insulation Wires and denial to it of access to substantial national markets for electrical insulation products.

Certain ly the allegations are based “in part” on the Commission action. It charged that the Insulation Wires acquisition, along with that of another distributor, placed in the hands of Minnesota Mining, a manufacturer, two of the three largest distributors in the business; that following the acquisitions these distributors discontinued distribution of the products of a number of manufacturers who had used them prior to their acquisition by Minnesota Mining; and that the effect of such action by Minnesota Mining was “the actual or potential lessening of competition” in the manufacture, sale and distribution of insulation products and the foreclosure of other manufacturers from a substantial share of the markets for said products. It appears to us that both suits set up substantially the same claims. It is true that the Commission’s Clayton Act proceeding required proof only of a potential anticompetitive effect while the Sherman Act carries the more onerous burden of proof of an actual restraint. The Commission complaint, however, did allege an “actual” as well as a “potential” lessening of competition, i. e., manufacturers “have been foreclosed from a substantial share of the markets.” Moreover, the monopolization count was phrased in terms of an “attempt to monopolize,” which may be illegal though not successful. See United States v. Columbia Steel Co., 334 U. S. 495, 525, 531-532 (1948).

Minnesota Mining’s claim seems to be that the crucial difference between the Commission and the New Jersey Wood proceedings is that the former alleges conduct that may substantially lessen competition while the latter asserts activity that has actually done so. We think that this is a distinction without a difference and does not deprive New Jersey Wood of the tolling effect of § 5 (b). That clause provides for tolling as long as the private claim is based “in part on any matter complained of” in the government proceedings. The fact that New Jersey Wood claims that the same conduct has a greater anti-competitive effect does not make the conduct challenged any less a matter complained of in the government action. It merely requires it to meet a greater burden of proof as to the effect of the conspiracy before a Sherman Act claim can be sustained.

Affirmed.

Mr. Justice Harlan and Mr. Justice Stewart did not participate in the decision of this case.

Mr. Justice Black,

dissenting.

Section 4B of the Clayton Act bars a private antitrust damage suit unless brought within four years after the cause of action arises. Section 5 (b) of the Act, as amended, 15 U. S. C. § 16 (b) (1964 ed.), however, suspends the running of this limitation period “[wjhenever any civil or criminal proceeding is instituted by the United States to prevent, restrain, or punish violations of any of the antitrust laws ....” I am unable to agree with the Court’s holding that a purely administrative proceeding initiated by the Federal Trade Commission and decided by that same regulatory agency is the kind of “civil or criminal proceeding . . . instituted by the United States . . .” which tolls the statute of limitations under § 5 (b). The Court itself concedes that even as amended “the precise language of § 5 (b) does not clearly encompass Commission proceedings” and that “there is little in the legislative history to suggest that Congress consciously intended to include Commission actions within the sweep of the tolling provision.” And the Solicitor General, while urging as amicus curiae the result the Court reaches today, candidly admits that this “result is difficult and perhaps impossible to justify in terms of conventional analysis of the text and legislative history . . . .” It is because I think both the language of the statute and the legislative history persuasively, if not conclusively, show that Congress did not intend the construction the Court gives § 5 (b) today, that I am unable to agree with its decision.

The whole of § 5, now divided into subdivisions (a) and (b), was passed in reponse to President Wilson’s 1914 plea to Congress to enact a law designed to make it easier for antitrust victims to collect damages through private lawsuits since preparing an antitrust case against a major corporate defendant was a larger task than most injured persons could undertake. To accomplish that single purpose he recommended to Congress, as the Court notes, two things — that these victims be permitted to seek “redress upon the facts and judgments proved and entered in suits by the Government” and also that “the statute of limitations ... be suffered to run against such litigants only from the date of the conclusion of the Government’s action.” 51 Cong. Rec. 1964. Congress accepted the President’s recommendation and passed § 5, a single section in two paragraphs, making “a final judgment or decree . . . rendered in any criminal prosecution or in any suit or proceeding in equity brought by or on behalf of the United States . . . prima facie evidence” against a civil antitrust defendant and tolling the statute of limitations during the pendency of “any suit or proceeding in equity or criminal prosecution . . . instituted by the United States . . . .” This language of § 5 as it passed the Congress in 1914 clearly did not refer to administrative proceedings but to antitrust suits or criminal prosecutions instituted by the Government in civil or criminal courts. Moreover, the purpose and effect of the two parts of this provision were obviously complementary, permitting the injured party to utilize a final judgment obtained by the Government and also providing a means whereby the injured party could await the result of the government action confident that his suit would not be barred by the statute of limitations. In the words of one of the committee reports, the “entire provision is intended to help persons of small means who are injured in their property or business by combinations or corporations violating the antitrust laws.” H. R. Rep. No. 627, 63d Cong., 2d Sess., 14. (Emphasis supplied.) See S. Rep. No. 698, 63d Cong., 2d Sess., 45. Therefore, both the language and the complementary nature of the two paragraphs of § 5 ought to show beyond any doubt that the whole section as passed was intended to apply to the same kind of proceeding in the same kind of tribunal — that is a proceeding brought in a civil or criminal court, the only tribunal which in common understanding has power to render the kind of “final judgment or decree” mentioned in § 5 (a). Furthermore, since the two paragraphs of § 5 when offered and when passed were regarded as an entity because of their identical language and purpose, it is not surprising that the Senators and Congressmen addressing themselves to § 5 did not specifically direct their remarks to the tolling provision as distinct from the effect to be given a court judgment or decree. Those discussing the measure naturally treated the “suit or proceeding in equity” or “criminal prosecution” set out in both paragraphs in identical terms as referring to the same kind of proceeding in the same kind of tribunal, namely a court. It is true that the language was changed in 1955 from “suit or proceeding in equity” and “criminal prosecution” to “civil or criminal proceeding,” the present language, but the legislative history of the 1955 amendment affirmatively shows that.there was no intention to affect in any way the kind of court proceedings necessary to suspend the statute of limitations. Thus, I am unable to go along with the Court in construing the tolling provision of § 5 (b) as though it applies to both court and Trade Commission proceedings while treating § 5 (a) as though it may apply to court proceedings only. Such a holding would, in my judgment, run counter to the whole legislative history of the 1914 Act.

I am setting out as an Appendix some of the legislative history of the original Act and of the 1955 amendment, which points out specifically something which does not surprise me at all: that while Congress was ready to make the final judgment oj a court prima facie evidence against a defendant, it was at the same time entirely unwilling to give such effect to administrative hearings and orders and was also unwilling to toll the statute of limitations during the pendency of such proceedings. It is true that many administrative agencies now conduct hearings, make findings, and issue orders in a way more or less comparable to courts. I doubt, however, that the time has even yet come when Congress would be willing to compel judges and juries to treat administrative orders as prima facie proof of a violation of law, either civil or criminal, or to treat those proceedings as though they were conducted in a court of law with all the protections there afforded litigants.

I would reverse this judgment.

APPENDIX TO OPINION OF MR. JUSTICE BLACK, DISSENTING.

The 1914 Act.

Herewith for illustration are statements made about § 5 of the 1914 Clayton Act by Senators and Congressmen particularly interested in § 5, all of whom took part in the preparation and sponsorship of the 1914 bill or the discussions that took place as it went through the House and Senate.

Senator Walsh, the spokesman for the Judiciary Committee, led the fight for the House version of § 5 and defended it on the ground that the defendant “has had an opportunity to try out before a court, with all the forms of the law, every question involved in the lawsuit. . . .” 51 Cong. Rec. 13851. (Emphasis added.) And Senator Walsh later added that “Here the party has had his day in court. He has tried every issue, and it is simply a question, now that he has had it tried, whether he may insist upon a second trial.” 51 Cong. Rec. 13857. (Emphasis added.) Opponents of the “conclusive evidence” proposal of the House bill never challenged the premise, implicit in the remarks of Senator Walsh and others, that only judgments rendered in judicial proceedings were contemplated by § 5. Not once did any member of Congress suggest that under the House version, administrative findings based upon evidence which would not be admissible in a court should be conclusive of the defendant’s liability in a later treble-damage action.

Senator Walsh, in arguing that his proposal would not violate the Constitution, again emphasized that § 5 did not apply to administrative orders, but only to judgments or decrees of the courts:

“I want to say just a word with reference to the authorities to which the attention of the Senate has been invited .... Nobody questions them. They all lay down the rule that in an action brought against an individual who has never theretofore had his day in court you can not make a certificate or a recital or an order of an administrative board or anything of that kind conclusive evidence against him.” 51 Cong. Rec. 13856-13857. (Emphasis added.)

On the other hand, there were Senators who thought a judgment or decree for a defendant should be equally binding on a treble-damage plaintiff. In opposing this idea, Senator White argued:

“Then, Mr. President, as has been said, it is burdensome enough to require parties to the litigation themselves to be bound by the findings of a court or jury in a particular case. So many things that we can not at the time possibly foresee influence such decisions. The way in which the evidence is produced may have its effect upon a jury or a court.
“The manner in which the case is handled by the lawyers employed may determine in the mind of a jury or a court what the verdict or the judgment shall be, and yet, Mr. President, those things should probably not have been controlling influences in the conclusions reached.” 51 Cong. Rec. 13900. (Emphasis added.)

And Senator Cummins said: “But when the suit is brought, then the judgment or decree of the court in the suit that has been brought by the Government would be prima facie evidence of violation of the antitrust law . . . .” 51 Cong. Rec. 13850. (Emphasis added.)

When the bill left the conference committee and went back to the House, the managers were called on to defend the changes against charges that elimination of the criminal penalties had emasculated the bill. Chairman Webb of the House Judiciary Committee attempted to describe the proposed enforcement procedures in the strongest possible light. After reading the provision vesting enforcement responsibility in the Trade Commission, he stated:

“Now, the value of these two sections is this: That they not only give the individual the right to sue for treble damages where he pleases, and we not only suspend the statute of limitations against an individual if a Government suit is brought against a trust, but we also require the Federal Trade Commission to stop these practices and take those guilty of such practices into court.
“But that is not all. Some argue that after the Trade Commission takes jurisdiction that excludes individuals from pursuing these other remedies. The bill further provides:
“ 'No order of the commission or board or the judgment of the court to enforce the same shall in any wise relieve or absolve any person from any liability under the antitrust acts.’
“So you have three or four distinct remedies, all of which may be invoked at the same time.” 51 Cong. Rec. 16274. (Emphasis added.)

It is clear therefore that Chairman Webb distinguished between suits by the “Government” — the suits to which the tolling provision applied — and proceedings of the Federal Trade Commission. He believed that the statute was suspended only when actions were brought under the direction of the Attorney General. This was confirmed a few moments later by the following exchange:

“Mr. HARDY. Under the bill does the Government have the authority to bring suit for injunction as well as private parties?
“Mr. WEBB. Yes. Section 15 gives the district attorneys under the direction of the Attorney General the right to apply for an injunction.” 51 Cong. Rec. 16276.

The day following Chairman Webb’s remarks Representative Floyd, another of the House managers, again attempted to persuade the House that the enforcement scheme contemplated by the bill was strong:

“That is not all. Under section 5 of the bill any private litigant injured by the unlawful acts of any corporation where the Government of the United States has proceeded against such corporation and obtained a judgment, either in a court of law or equity, is allowed the use of that judgment or decree to show the unlawful acts of the combination to the full extent that it would be an estoppel between the Government and the original offender. . . . That is a new remedy and a most efficient remedy. The Government of the United States, acting in behalf of all of its citizens, prosecutes a trust, convicts it either in a criminal court or a civil court, and the private litigant, injured by the unlawful acts of such trust, has nothing to do in order to recover the three-fold damages except to prove the amount of damages and that the injury was done by this trust or corporation. . . .
“But that is not all. There are several other remedies provided in this bill. Under section 11 the violation of sections 2, 3, 7, and 8 may be enforced, respectively, by the Trade Commission, by the Interstate Commerce Commission, or by the Federal Reserve Board.” 51 Cong. Rec. 16319. (Emphasis added.)

Another relevant discussion in the House is the following:

“Mr. McKENZIE: If this section is left in the bill, do you not feel and believe that this decree that is mentioned in this section should be the decree of the court of last resort — the Supreme Court of the land?
“Mr. VOLSTEAD. No.
“Mr. McKENZIE. You think it would be good policy to leave a matter of such great importance in the hands of an inferior court?
“Mr. VOLSTEAD. Yes.” 51 Cong. Rec. 9079.

As originally presented to the House, § 5 also made a “judgment or decree” rendered in a “suit or proceeding in equity brought by or on behalf of the United States” conclusive against any prospective treble-damage plaintiff. Opponents of this clause vigorously challenged the constitutionality of binding a party who had never had his “day in court.” The debates made it clear time and again that the proceeding contemplated was an action brought for the United States by the Attorney General, not an administrative proceeding:

“Mr. SISSON. . . . [D]oes the gentleman believe that his rights in the court should be determined upon the questions raised by the Attorney General of the United States?
“Mr. PROUTY. Why, certainly not; the Constitution expressly prohibits it. In other words, the Attorney General could go in and prevent my having a trial before a jury.
“Mr. SISSON. That is the point I had in mind.
“Mr. PROUTY. By instituting a proceeding in equity and having the case tried.
“Mr. SISSON. That is the point I had in mind, that the Attorney General, if he was disposed to do so — we would not charge that of any particular Attorney General — might cook up a case which would directly defeat the rights of every individual if he had been injured.” 51 Cong. Rec. 9492.

Defenders of the proposition, on the other hand, stated:

“Mr. CULLOP. My question is this: Supposing a collusive suit was brought and the defendant won on the issue, then is every outsider barred from any further suit? According to this language he is.
“Mr. FLOYD of Arkansas ....
“. . . My answer to that proposition is that if the time ever comes in this Government when any Attorney General will enter into collusive suits with corporations and combinations engaged in unlawful acts, it will be an evil day for our Republic, a day when every statute will become useless and justice will become a mockery.” 51 Cong. Rec. 9489.

Furthermore, an amendment was in fact offered to the Senate which arguably would have resulted in bringing administrative proceedings within the scope of the phrase “suit or proceeding.” The amendment met with opposition and was withdrawn. The House bill originally dealt only with a “suit or proceeding in equity,” and did not apply to criminal proceedings. After the bill reached the Senate, Senator Bryan moved to strike out the words “in equity,” so the provision would read simply “any suit or proceeding.” As observed by Senator Reed, “That would cover any kind of proceeding.” Senator Culberson proposed a substitute adding the phrase “criminal prosecution or,” and retaining the phrase “in equity.” Senator Bryan withdrew his broader proposal and accepted Senator Culberson’s limited substitute. 51 Cong. Rec. 13897-13898.

The House initially passed the Act with four substantive sections, each having a criminal penalty attached. All of the criminal penalties were removed in the Senate or in conference. Senator Reed of Missouri, leading the opposition to the bill, charged repeatedly that the Clayton Act had been stripped of all force and effectiveness:

“We end by providing a smooth and easy road which may be traveled through the years, until finally a commission shall issue an innocuous, non-enforcible decree, a decree that can be vitalized only by being affirmed by a court. At the conclusion of all the litigation we propose to impose no penalty, levy no fine, send no one to jail, and we permit the culprit to preserve his swag!” 51 Cong. Rec. 15867. (Emphasis added.)

Had the proponents of the measure contemplated the use of administrative findings as evidence it appears that the obvious answer to Senator Reed would have been that the bill does have teeth for the Commission’s order would be admissible as prima facie evidence against the “culprit,” and private claimants would be able to reclaim “his swag,” three times over. Neither this, nor any other answer challenging the accuracy of Senator Reed’s statement, was heard on the Senate floor, although- his complaint was repeatedly made. And in the House, Representative Nelson charged:

“Finally, the penalty is cut out; they can do all these things, and the Trade Commission can only say, ‘You must not do it any more.’ Then there is the long delay in an appeal to the courts; and they go through the courts. And then what? There may be an injunction issued, but they have got away with the loot with impunity.” 51 Cong. Rec. 16325.

For further examples see 51 Cong. Rec. 9079, 9169, 9488-9490, 9492, 9494-9495, 12789-12790, 13850-13851, 13856-13857, 13897-13898, 13900, 14262, 14328, 15867, 15948, 15950, 16003, 16044, 16046, 16149, 16154, 16274, 16281, 16319, 16325.

The 1955 Amendment.

The committee reports on the amendment detailed carefully every change the bill would make, but there is absolutely no evidence that there was any intent to amend § 5 (b) for the purpose of suspending the statute of limitations during the pendency of Federal Trade Commission hearings. See H. R. Rep. No. 422, 84th Cong., 1st Sess.; S. Rep. No. 619, 84th Cong., 1st Sess. And the debates and the hearings affirmatively show that no change was intended. For example, in the 1951 hearings Representative Patman appeared before the House subcommittee considering the bill and questioned whether § 5 had been changed to deny the right of a private litigant to use a judgment obtained by the Government. Representative Wilson assured him that: “This doesn’t change the present law.” Representative Keat-ing, the author of the bill, then commented: “I think there is a slight change in existing law where it refers to the subsequent numbers. There has to be a change in phraseology in that because of what we have done in section 4. I believe that is the only change.” Hearings on H. R. 3408 before the Subcommittee on Study of Monopoly Power of the House Committee on the Judiciary, 82d Cong., 1st Sess., Part 3, 98-100. And on the floor of the House in the discussion of the bill which became the present law, Representative Quigley stated:

“It was the specific purpose of the committee in reporting this bill to in no way affect the substantive rights of individual litigants. It is simply a procedural change and suggested with the thought of setting up a uniform statute of limitations. That is the sole purpose.” 101 Cong. Rec. 5131.

Mr. Justice Goldberg,

dissenting.

With all deference, I dissent. I agree with the Court, ante, at 321, that, as we recently stated in Burnett v. New York Central R. Co., 380 U. S. 424, 427, the pivotal question for determination is “whether congressional purpose is effectuated by tolling the statute of limitations in given circumstances.” I cannot agree, however, that the Court has correctly applied that test in this case. As my Brother Black has so well demonstrated in his dissenting opinion, both the language and legislative history of the statutes before us clearly show that Congress did not intend that the statute of limitations applicable to private antitrust actions be tolled by the institution of a Federal Trade Commission administrative proceeding. Cf. United States v. Welden, 377 U. S. 95. It frustrates rather than effectuates congressional purpose to fail to honor the express intent of Congress in this given circumstance.

       The case was considered on interlocutory appeal. 28 U. S. C. § 1292 (b) (1958 ed.). Essex did not appeal and is not a party here.

       During the pendency of the case in the District Court respondent filed an amended complaint. However, respondent’s theories of recovery and the controlling legal questions are common to both pleadings.

       38 Stat. 731, as amended, 15 U. S. C. § 18 (1964 ed.).

       26 Stat. 209, as amended, 15 U. S. C. §§ 1, 2 (1964 ed.).

       Section 4B of the Clayton Act, 69 Stat. 283, 15 U. S. C. § 15b (1964 ed.), provides that:
      “Any action to enforce any cause of action under sections 15 or 15a of this title shall be forever barred unless commenced within four years after the cause of action accrued. No cause of action barred under existing law on the effective date of this section and sections 15a and 16 of this title shall be revived by said sections.”

       Section 5 (b), 38 Stat. 731, as amended, 15 U. S. C. § 16 (b) (1964 ed.), provides:
      “(b) Whenever any civil or criminal proceeding is instituted by the United States to prevent, restrain, or punish violations of any of the antitrust laws, but not including an action under section 15a of this title, the running of the statute of limitations in respect of every private right of action arising under said laws and based in whole or in part on any matter complained of in said proceeding shall be suspended during the pendency thereof and for one year thereafter: Provided, however, That whenever the running of the statute of limitations in respect of a cause of action arising under section 15 of this title is suspended hereunder, any action to enforce such cause of action shall be forever barred unless commenced either within the period of suspension or within four years after the cause of action accrued.”

       See Highland Supply Corp. v. Reynolds Metals Co., 327 F. 2d 725 (C. A. 8th Cir. 1964).

       Section 5 (a), 38 Stat. 731, as amended, 15 U. S. C. §16 (a) (1964 ed.), provides:
      “(a) A final judgment or decree heretofore or hereafter rendered in any civil or criminal proceeding brought by or on behalf of the United States under the antitrust laws to the effect that a defendant has violated said laws shall be prima facie evidence against such defendant in any action or proceeding brought by any other party against such defendant under said laws or by the United States under section 15a of this title, as to all matters respecting which said judgment or decree would be an estoppel as between the parties thereto: Provided, That this section shall not apply to consent judgments or decrees entered before any testimony has been taken or to judgments or decrees entered in actions under section 15a of this title.”

       See Theatre Enterprises, Inc. v. Paramount Film Distributing Corp., 346 U. S. 537 (1954).

       Section 4B of the Clayton Act, 69 Stat. 283, 15 U. S. C. § 15b (1964 ed.), provides that:
      “Any action to enforce any cause of action under sections 15 or 15a of this title shall be forever barred unless commenced within four years after the cause of action accrued.”

       And of course, it is not at all clear that this is a suit “instituted by the United States.” The Department of Justice brings suits and criminal prosecutions in the name of the United States, while an independent regulatory agency sues and is sued in its own name. And the United States does not initiate the proceedings before an administrative agency. Here for example the Federal Trade Commission filed the proceeding against petitioner. However, because of the view I take of the other language in the section, I find it unnecessary to decide this question.


source: Caselaw Access Project

author: Per Curiam. Mr. Justice Clark, Mr. Justice Brennan,

license: Public Domain

text:
    CASE v. NEBRASKA.
    No. 843.
    Argued April 28, 1965.
    Decided May 24, 1965.

      Daniel J. Meador, by appointment of the Court, 379 U. S. 995, argued the cause and filed a brief for petitioner.

      Melvin Kent Kammerlohr, Assistant Attorney General of Nebraska, argued the cause for respondent. With him on the brief was Clarence A. H. Meyer, Attorney General.
   Per Curiam.

Petitioner sought a writ of habeas corpus in the District Court for Lancaster County, Nebraska, alleging that he was unconstitutionally denied the assistance of counsel when he entered a plea of guilty in that court to a charge of burglary. The trial court dismissed the petition without a hearing, and filed no opinion. The Nebraska Supreme Court affirmed. 177 Neb. 404, 129 N. W. 2d 107. The Supreme Court’s opinion recognized that petitioner’s allegations, if true, would establish a violation of the Federal Constitution. 177 Neb., at 410,129 N. W. 2d, at 111. The Supreme Court held, however, that, in Nebraska, “Habeas corpus is not available to discharge a prisoner from a sentence of penal servitude if the court imposing it had jurisdiction of the offense and of the person charged with the crime, and the sentence was within the power of the court.” 177 Neb., at 412, 129 N. W. 2d, at 112. We granted certiorari, 379 U. S. 958, to decide whether the Fourteenth Amendment requires that the States afford state prisoners some adequate corrective process for the hearing and determination of claims of violation of federal constitutional guarantees.

After certiorari was granted, the Nebraska Legislature enacted a statute providing a postconviction procedure. Neb. Leg. Bill 836, Seventy-fifth Session, effective April 12, 1965. On its face, the statute provides for a hearing of petitions such as this one, alleging denial of federal constitutional rights. Therefore, the judgment is vacated and the cause remanded to the Nebraska Supreme Court for reconsideration in light of the supervening statute.

It is so ordered.

Mr. Justice Clark,

concurring.

As the Court points out, we granted certiorari in this case “to decide whether the Fourteenth Amendment requires that the States afford state prisoners some adequate corrective process for the hearing and determination of claims of violation of federal constitutional guarantees.” Happily, Nebraska in the interim has adopted just such a procedure thus obviating the necessity of our passing upon the question.

It should be pointed out, however, that as early as 1949 this Court in Young v. Ragen, 337 U. S. 235, articulated the principle that the States must afford prisoners some “clearly defined method by which they may raise claims of denial of federal rights.” Id., at 239. But compare Mooney v. Holohan, 294 U. S. 103 (1935). In stating that proposition the Court noted: “The doctrine of exhaustion of state remedies, to which this Court has required the scrupulous adherence of all federal courts . .. presupposes that some adequate state remedy exists. We recognize the difficulties with which the Illinois Supreme Court is faced in adapting available state procedures to [this] requirement .... Nevertheless, that requirement must be met.” Young v. Ragen, supra, at 238-239.

Thereafter, the Illinois Post-Conviction Hearing Act was adopted. It was followed by passage of a statute in North Carolina in 1951 which was “modeled” on the Illinois Act. Miller v. State, 237 N. C. 29, 51, 74 S. E. 2d 513, 528 (1953). Nebraska is the seventh State to adopt such a statute since Young v. Ragen, supra There exists in some States a wide variety of procedural techniques that have been used to deal with due process attacks on criminal convictions, i. e., basic common-law remedies such as habeas corpus, coram nobis and delayed motions for new trial. But the great variations in the scope and availability of such remedies result in their being entirely inadequate.

As a consequence there has been a tremendous increase in habeas corpus applications in federal courts. Indeed, in the Supreme Court alone they have increased threefold in the last 15 years. This has brought about much public agitation and debate over proposed limitations of the habeas corpus jurisdiction of federal courts. The necessity for such proposals has been based on various grounds, including that of federal-state comity; inordinate delay in the administration of criminal justice in the state courts; and the heavy burden on the federal judiciary. None of these will survive careful scrutiny.

Strangely enough there has been little light thrown on the necessity for more effective postconviction remedies in the States. In 1958 the Burton Committee reported out a preliminary draft of findings in which it stated

“that the law of state post-conviction process in many states was wholly inadequate to cope with the demands now being placed upon it. In some jurisdictions prisoners were altogether precluded from direct access to the courts. [Cochran v. Kansas, 316 U. S. 255 (1942); Dowd v. Cook, 340 U. S. 206 (1951).] ... In many more, the procedures recognized by state law failed to provide genuine opportunities for testing constitutional issues of the most numerous and important types. The result was that prisoners often failed to obtain hearings on their allegations in the state courts. This, in turn, increased the number of petitions in state and federal courts and was generally productive of frustrations in all persons concerned with the process.”

Believing that the practical answer to the problem is the enactment by the several States of postconviction remedy statutes I applaud the action of Nebraska. This will enable prisoners to “air out” their claims in the state courts and will stop the rising conflict presently being generated between federal and state courts. This has proven true in Illinois where it is reported that federal applications from state prisoners dropped considerably after its Act was adopted. I understand that the Illinois Legislature is now considering the enlargement of the five-year limitations period of its present Act to a 20-year period. The consensus is that this will solve the problem entirely in Illinois, which was originally the “sore spot” of the Nation in this regard.

I hope that the various States will follow the lead of Illinois, Nebraska, Maryland, North Carolina, Maine, Oregon and Wyoming in providing this modern procedure for testing federal claims in the state courts and thus relieve the federal courts of this ever-increasing burden.

Mr. Justice Brennan,

concurring.

The petitioner entered his plea of guilty on April 18, 1963, one month after this Court’s decision in Gideon v. Wainwright, 372 U. S. 335, holding the Sixth Amendment guarantee of counsel applicable to state prosecutions by virtue of the Fourteenth Amendment. The Nebraska Supreme Court followed prior Nebraska decisions in holding that, in a habeas corpus action brought by a convicted prisoner, judicial inquiry is limited to the jurisdiction of the convicting court over the offense and over the person of the accused, and to the question whether the sentence imposed was within the power of the court. The State conceded in its response to the petition for certiorari that habeas corpus was unavailable to hear petitioner’s claim and that petitioner had no other remedy in the state courts.

On oral argument, counsel appointed for petitioner, see 379 U. S. 995, conceded the relevancy of the new Nebraska postconviction procedure, but contended that petitioner was nevertheless entitled to a declaration that he had been unconstitutionally denied a hearing by the Nebraska courts, and to a reversal of the judgment of the Nebraska Supreme Court and a mandate directing that by some procedure the petitioner's claim be adequately adjudicated.

Petitioner concedes that the Court’s practice has been to remit prisoners to their federal habeas corpus remedy. See, e. g., Jennings v. Illinois, 342 U. S. 104. But he contends that substituting federal for state corrective process, instead of directing the State itself to meet its obligation, is a disservice to sound principles of federalism. He points to the vast increase in the number of federal habeas corpus applications by state prisoners as evidence that lack of adequate state procedures has. put an intolerable strain on the federal writ and has brought about mounting friction between state and federal courts. See Henry v. Mississippi, 379 U. S. 443, 453. In short, he contends that if the evolution in the coverage of the Fourteenth Amendment and in the scope of federal habeas corpus, see Fay v. Noia, 372 U. S. 391, is not to pull the federal judiciary increasingly into state criminal administration, the States must provide broader procedures more hospitable to federal constitutional claims.

The desirability of minimizing the necessity for resort by state prisoners to federal habeas corpus is not to be denied. Our federal system entrusts the States with primary responsibility for the administration of their criminal laws. The Fourteenth Amendment and the Supremacy Clause make requirements of fair and just procedures an integral part of those laws, and state procedures should ideally include adequate administration of these guarantees as well. If, by effective corrective processes, the States assumed this burden, the exhaustion requirement of 28 U. S. C. § 2254 (1958 ed.) would clearly promote state primacy in the implementation of these guarantees. Of greater importance, it would assure not only that meritorious claims would generally be vindicated without any need for federal court intervention, but that nonmeritorious claims would be fully ventilated, making easier the task of the federal judge if the state prisoner pursued his cause further. See Townsend v. Sain, 372 U. S. 293, 312-318. Greater finality would inevitably attach to state court determinations of federal constitutional questions, because further evidentiary hearings on federal habeas corpus would, if the conditions of Townsend v. Sain were met, prove unnecessary.

None can view with satisfaction the channeling of a large part of state criminal business to federal trial courts. If adequate state procedures, presently all too scarce, were generally adopted, much would be done to remove the irritant of participation by the federal district courts in state criminal procedure. The 1954 Report of the Special Committee on Habeas Corpus of the Conference of Chief Justices pointed the way in urging that “State statutes should provide a postconviction process at least as broad in scope as existing Federal statutes under which claims of violation of constitutional right asserted by State prisoners are determined in Federal courts under the Federal habeas corpus statutes,” and recommending provisions for hearing, a record, fact findings and conclusions of law. H. R. Rep. No. 1293, 85th Cong., 2d Sess., p. 7 et seg.

These are similar to other suggestions of desirable attributes of a state postconviction procedure which should reduce the necessity for exercise of federal habeas corpus jurisdiction. The procedure should be swift and simple and easily invoked. It should be sufficiently comprehensive to embrace all federal constitutional claims. In light of Fay v. Noia, supra, it should eschew rigid and technical doctrines of forfeiture, waiver, or default. See Douglas v. Alabama, 380 U. S. 415, 422-423; Henry v. Mississippi, supra. It should provide for full fact hearings to resolve disputed factual issues, and for compilation of a record to enable federal courts to determine the sufficiency of those hearings. Townsend v. Sain, supra. It should provide for decisions supported by opinions, or fact findings and conclusions of law, which disclose the grounds of decision and the resolution of disputed facts. Provision for counsel to represent prisoners, as in § 4 of the Nebraska Act, would enhance the probability of effective presentation and a proper disposition of prisoners’ claims.

But there is no occasion in this case to decide whether due process requires the States to provide corrective process. The new statute on its face is plainly an adequate corrective process. Every consideration of federalism supports our conclusion to afford the Nebraska courts the opportunity to say whether that process is available for the hearing and determination of petitioner’s claim.

       Ill. Rev. Stat., c. 38, §§ 122-1 — 122-7 (1963).

       N. C. Gen. Stat. §§15-217 — 15-222 (Supp. 1963).

       Maryland, Maine, Oregon and Wyoming have passed similar legislation. Md. Ann. Code, Art. 27, §§ 645A to 645J (Supp. 1964); Me. Rev. Stat. Ann., c. 126, §§ 1-A to 1-G (Supp. 1963); Ore. Rev. Stat. §§ 138.510-138.680 (1963); Wyo. Stat. Ann. §§ 7-408.1 to 7-408.8 (1963 Cum. Supp.). It should be noted, however, that six other States have adopted similar procedures by rule of court. See Alaska Sup. Ct. Rule 35 (b); Del. Super. Ct. Crim. Proc. Rule 35; Fla. Rules Crim. Proc. 1; Ky. Rules Crim. Proc. 11.42; Mo. Sup. Ct. Rule 27.26; N. J. Crim. Prac. Rules of Super, and County Cts., Rule 3:10A-2.

       The late Mr. Justice Burton of revered memory was Chairman of the Committee on Post Conviction Remedies of the American Bar Association’s Section of Judicial Administration. In August 1958 it circulated a preliminary draft of a study entitled Effective State Post-Conviction Procedures — Their Nature and Essentialities, which was prepared by the Seminar in Criminal Procedure of the University of Chicago Law School under the direction of Professor Francis A. Allen.

        Id., at 2-3.

       The petition for habeas corpus reads:
      “Petitioner, Paul Vernon CASE, was sentenced to five (5) years in the Nebraska Penal and Correctional Complex on May 3, 1963, A. D.
      “Petitioner was ‘fast talked’ and forcibly coerced into waiving his rights (U. S. Constitutional Rights) to have advice and counsel; to have a Preliminary Hearing, and to plead not-guilty.
      “Mr. William D. Blue told Petitioner he, Petitioner, would be charged with being ‘An Habitual Criminal’ if he did not waive these rights. He, Petitioner was held in Solitary Confinement in City Jail, until such time as he would agree — under cruel and unusual circumstances.
      “The basic rights waived by this Petitioner are guaranteed him under the Sixth Amendment of the U. S. Constitution and are so fundamental and essential to a fair trial that they are made obligatory upon the States, All states, by way of the Fourteenth Amendment. For reference see Gideon vs. Wainwright in the U. S. Supreme Court. October 1962, Term, No. 155; all Justices concurring.”

       See Jackson v. Olson, 146 Neb. 885, 893-894, 22 N. W. 2d 124, 129-130; In re Dunn, 150 Neb. 669, 35 N. W. 2d 673; Hawk v. Olson, 145 Neb. 306, 16 N. W. 2d 181, rev’d 326 U. S. 271, on remand, 146 Neb. 875, 22 N. W. 2d 136.

       The response stated: “For all practical purposes, there is no collateral remedy available in the Nebraska courts to a state prisoner who alleges that a violation of his federal constitutional rights occurred in connection with his conviction and whose claim has not yet been considered by the state courts, unless the prisoner’s claim is predicated upon a lack of jurisdiction of the sentencing court over the offense or over the person of the accused.”
      In addition to this concession that the State provided no remedy whatever, petitioner cites Carlsen v. State, 129 Neb. 84, 261 N. W. 339, as authority for the unavailability of coram nobis; Neb. Rev. Stat. § 29-2103 (1964 Reissue), as barring a motion for a new trial; and Neb. Rev. Stat. §25-1912 (1964 Reissue), as barring an appeal.

       The new statute, Neb. Leg. Bill 836, 75th Session, effective April 12, 1965, provides:
      “Sec. 1. A prisoner in custody under sentence and claiming a right to be released on the ground that there was such a denial or infringement of the rights of the prisoner as to render the judgment void or voidable under the Constitution of this state or the Constitution of the United States, may file a verified motion at any time in the court which imposed such sentence, stating the grounds relied upon, and asking the court to vacate or set aside the sentence.
      “Unless the motion and the files and records of the case show to the satisfaction of the court that the prisoner is entitled to no relief, the court shall cause notice thereof to be served on the county attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that there was such a denial or infringement of the rights of the prisoner as to render the judgment void or voidable under the Constitution of this state or the Constitution of the United States, the court shall vacate and set aside the judgment and shall discharge the prisoner or resentence him or grant a new trial as may appear appropriate. Proceedings under the provisions of this act shall be civil in nature. Costs shall be taxed as in habeas corpus cases.
      “A court may entertain and determine such motion without requiring the production of the prisoner, whether or not a hearing is held. Testimony of the prisoner or other witnesses may be offered by deposition. The court need not entertain a second motion or successive motions for similar relief on behalf of the same prisoner.
      "Sec. 2. An order sustaining or overruling a motion filed under the provisions of this act shall be deemed to be a final judgment, and an appeal may be taken to the Supreme Court therefrom as provided for in appeals in civil cases; Provided, that a prisoner may in the discretion of the Supreme Court upon application to the court be released on such recognizance as the Supreme Court shall fix pending the determination of the appeal.
      “Sec. 3. The remedy provided by this act is cumulative and is not intended to be concurrent with any other remedy existing in the courts of this state. Any proceeding filed under the provisions of this act which states facts which if true would constitute grounds for relief under another remedy shall be dismissed without prejudice.
      “Sec. 4. The district court may appoint an attorney or attorneys, not exceeding two, to represent the prisoners in all proceedings under the provisions of this act and fix their compensation as provided in section 29-1803, Reissue Revised Statutes of Nebraska, 1943.”

       The petitioner states in his brief:
      “At this stage of the litigation the Court need not pass on the steps to be taken if the Nebraska court should fail to comply with a mandate requiring corrective process for petitioner. It might be suggested, however, that the problem essentially is no different from actual or potential disobedience of the mandate in many other cases remanded by this Court. If on the remand Nebraska failed to make corrective process available, petitioner could return here with a fresh petition for certiorari. This Court could then order petitioner’s discharge from custody. That is the ultimate sanction behind the due process requirement of state corrective process. See Dowd v. Cook, 340 U. S. 206, 209-10.”
      In support of this contention, the petitioner argues that the Supremacy Clause and the fundamental Fourteenth Amendment right to a hearing constitutionally require the States to afford corrective judicial process to remedy federal constitutional defects in their criminal prosecutions, citing Frank v. Mangum, 237 U. S. 309, 335; Moore v. Dempsey, 261 U. S. 86, 91; Mooney v. Holohan, 294 U. S. 103, 113; New York ex rel. Whitman v. Wilson, 318 U. S. 688, 690; Carter v. Illinois, 329 U. S. 173, 175-176; Foster v. Illinois, 332 U. S. 134, 139; Taylor v. Alabama, 335 U. S. 252, 272 (concurring opinion); Young v. Rayen, 337 U. S. 235, 238-239. In addition to the cases cited involving criminal convictions, petitioner cites as other applications of the general principle General Oil Co. v. Crain, 209 U. S. 211, 228; Kenney v. Supreme Lodge, 252 U. S. 411, 415; Ward v. Love County, 253 U. S. 17; McKnett v. St. Louis & S. F. R. Co., 292 U. S. 230; Testa v. Katt, 330 U. S. 386. He also argues that, since Nebraska allowed habeas corpus to attack convictions for jurisdictional defects based on Nebraska law, the Nebraska Supreme Court unconstitutionally discriminated against federal law by refusing habeas corpus for jurisdictional defects based on the Fourteenth Amendment. For the proposition that a State may not discriminate against rights arising under federal laws, petitioner cites McKnett v. St. Louis & S. F. R. Co., supra, and Testa v. Katt, supra, and for the proposition that an unconstitutional denial of counsel is a jurisdictional defect relies on Johnson v. Zerbst, 304 U. S. 458.

       Petitioner refers to Young v. Ragen, supra, where, in vacating the denial of state habeas corpus, the Court said: “If there is now no post-trial procedure by which federal rights may be vindicated in Illinois, we wish to be advised of that fact upon remand of this case.” 337 U. S., at 239. He also cites Jackson v. Denno, 378 U. S. 368; Boles v. Stevenson, 379 U. S. 43; Henry v. Mississippi, 379 U. S. 443; and Note, Effect of the Federal Constitution in Requiring State Post-Conviction Remedies, 53 Col. L. Rev. 1143 (1953).

         Dean Griswold of the Harvard Law School, in an address, “The States and Criminal Law,” given on May 13, 1965, to the Cleveland Bar Association, said:
      “For, after all, the basic responsibility for the enforcement of the criminal law remains with the States. The States are, or should be, as much concerned with high standards as is the Federal government. The States should, in my view, welcome the determinations of the Supreme Court that the high standards prescribed by our Federal Constitution are to be taken seriously and should be enforced. What is needed now is for the States to accept this responsibility, and to adopt means to carry it out. With proper explanation and understanding, this can, I believe, be done without impairing our enforcement of the criminal law. When the States do fully meet this responsibility, we will all be better off, and we will more nearly have realized the potentialities of our Great Federal form of Government.”

       The Uniform Post-Conviction Procedure Act, 9B Uniform Laws Ann. 352-359, designed to provide adjudication of federal claims, has had but slight influence in the States. Arkansas adopted the Uniform Act in 1957, but repealed it two years later. 2 Acts of Arkansas (1959) 1160-1161. Six States in addition to Nebraska have adopted their own statutes. Ill. Rev. Stat., c. 38, §§ 122-1 to 122-7 (1963); Me. Rev. Stat. Ann., c. 126, §§ 1-A to 1-G (Supp. 1963); Md. Ann. Code, Art. 27, §§ 645A to 645J (Supp. 1964); N. C. Gen. Stat. §§ 15-217 to 15-222 (Supp. 1963); Ore. Rev. Stat. §§ 138.510-138.680 (1963); Wyo. Stat. Ann. §§ 7-408.1 to 7-408.8 (1963 Cum. Supp.). Procedures have been adopted by rule of court in six States. Alaska Sup. Ct. Rule 35 (b); Del. Super. Ct. Crim. Proc. Rule 35 (a); Fla. Rules Crim. Proc. 1; Ky. Rules Crim. Proc. 11.42; Mo. Sup. Ct. Rule 27.26; N. J. Crim. Prac. Rules of Super, and County Cts., Rule 3:10A-2. Some state courts are apparently broadening existing post-conviction remedies by judicial construction. See, e. g., People v. Huntley, 15 N. Y. 2d 72, 204 N. E. 2d 179 (1965); State ex rel. Banach v. Boles, 147 W. Va. 850, 858, 131 S. E. 2d 722, 728 (1963); Hunt v. Warden, 335 F. 2d 936, 941-942 (C. A. 4th Cir.) (discussing the expanding Maryland remedy). See also the views expressed in People v. Wilson, 18 App. Div. 2d 424, 430, 239 N. Y. S. 2d 900, 906; Ex parte Aaron, 275 Ala. 377, 381-382, 155 So. 2d 334, 337-338 (dissenting opinion); Donnell v. Nash, 323 F. 2d 850 (C. A. 8th Cir.); Cobb v. Balkcom, 339 F. 2d 95, 100 (C. A. 5th Cir.). Proposals that the States make their postconviction procedures coextensive with federal habeas corpus are found in Meador, Accommodating State Criminal Procedure and Federal Postconvietion Review, 50 A. B. A. J. 928 (1964); National Assn, of Attys. Gen., Conference Proceedings, 1964, pp. 42-43 (remarks of Arthur J. Sills, Atty. Gen. of New Jersey), 149-150 (resolution of the Association); Brennan, Some Aspects of Federalism, 39 N. Y. U. L. Rev. 945, 957-959 (1964).

       See Meador, supra, 50 A. B. A. J., at 929-930; Brennan, supra, 39 N. Y. U. L. Rev., at 958-959; cf. Report No. 23, ABA Section of Criminal Law (Mid-Winter Meeting, Feb. 1965) 5, 7.


author: Per Curiam. Mr. Justice Harlan,

text:
    COLUMBIA ARTISTS MANAGEMENT INC. et al. v. UNITED STATES et al.
    No. 775.
    Decided May 24, 1965.

      Seymour D. Lewis and Ralph F. Colin for appellants.

      Solicitor General Cox, Assistant Attorney General Orrick, Lionel Kestenbaum and Elliott H. Moyer for the United States, and Theodore R. Kupferman for appellee Summy-Birchard, Inc.
   Per Curiam.

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

Mr. Justice Harlan,

Mr. Justice Stewart, and Mr. Justice Goldberg,

dissenting.

An examination of the proceedings in this case convinces us that a summary disposition of this matter is not appropriate.

In 1955 the Government brought an antitrust action against appellant Columbia, appellant Community Concerts, Inc. (Columbia's wholly owned subsidiary), and two corporations whose successor is appellee Summy-Birchard, Inc. Columbia and Summy-Birchard manage professional concert artists, and their affiliates, Community and the Civic Concert Service division of Summy-Birchard, are “concert services,” organizing and maintaining local nonprofit “audience associations” throughout the country which sponsor concert series. Normally an audience association pays an artist an established fee set by the artist and his manager, out of which the artist’s manager retains a share and the concert service also retains a share known as the “margin.” The Government’s complaint charged a conspiracy to monopolize the business of managing and booking concert artists and the business of forming and maintaining audience associations.

On October 20, 1955, a consent decree was entered by the District Court for the Southern District of New York, the terms of which provide that the managing companies must make their artists available to all concert services at the same rate and that the concert services must make performers available to audience associations without reference to the management of the artists. Paragraph VI (D) of the decree requires that each defendant make available “to any financially responsible concert service any artist managed by such defendant and reasonably available for the desired performance, at the same margin allowed to the defendant or its affiliate concert service by that artist for a performance for the same fee.”

Columbia’s standard contract with concert services contains a provision, which Columbia argues is required by a collective bargaining agreement among managers and the concert artists’ union, prohibiting a concert service from booking an engagement at less than the artist’s established fee without the consent of the artist. After Summy-Birchard protested against signing contracts containing this provision on the ground that it constituted illegal resale price maintenance, Columbia petitioned the District Court on July 18, 1963, for a construction of the 1955 consent decree, alleging in part that the decree specifically sanctioned this contract provision and thus insulated it from attack by a party to the decree. The Government and Summy-Birchard were joined as parties. The District Court held that this contract provision prevented competition among concert services, for it required all of them to be paid the same “margin” for each artist, and concluded that such a provision was illegal. After re-argument, the District Court reaffirmed its prior opinion and stated in its final order:

“The provision in Columbia's contract . . . that each engagement before an audience association shall be performed at the artist’s established fee constitutes illegal resale price maintenance and is a per se violation of Section 1 of the Sherman Act (15 U. S. C. § 1). To the extent that the Final Judgment operates to allow Columbia to set such resale prices, it is illegal and void as contrary to the Sherman Act, and any continued reliance by Columbia upon such portion or portions of the Final Judgment will not be construed by the Court to be in any way valid.”

Columbia appeals from this judgment claiming that it constitutes a modification of the 1955 consent decree and that the District Court is without power to modify the decree without Columbia’s agreement.

I.

In our view there is substance to Columbia’s contention that the District Court modified the 1955 consent decree. As we read the District Court’s opinion, that court held that the 1955 decree affirmatively sanctioned the use of the contract provision, and then went on to modify the decree, invalidating that portion of the decree which permitted Columbia to include the provision, at issue in its contracts. The District Judge stated in his original opinion:

“The scheme of the concert service business conducted by Community and the Civic division of Summy-Birchard which is embodied in the decree clearly envisions that the artist or his manager will be able to control the ultimate price paid by the 'consumer’ — audience association, impresario, or whoever assumes the risk of 'producing’ a show. Were this not so, the definition of ‘margin’ in the decree would be meaningless. Since this court by its decree — albeit a consent order — has sanctioned pro tanto this structuring of the industry, it should not be slow to consider charges of illegality against the system.”

The District Judge suggested that Summy-Birchard’s answer might be treated as a “petition for declaratory judgment” or a “petition for modification.” After discussing whether or not the contract provision constituted resale price maintenance, he concluded by stating:

“Thus, insofar as the decree-imposed requirement of margin operates to allow Columbia to set resale prices, the decree is illegal and void as contrary to the letter and policy of the Sherman Act, and this court will not construe Columbia’s continued reliance upon that portion of the decree to be in any way valid.”

The District Judge characterized what he had done as “ [invalidation of . . . part of the consent decree.” The District Court’s opinion on rehearing states, “The opinion of November 19 is accordingly reaffirmed,” and the judgment of the District Court, set out above, states that “[t]o the extent that the Final Judgment operates to allow Columbia to set such resale prices, it is illegal and void as contrary to the Sherman Act.” In our view the language of the opinion and judgment of the District Court conclusively shows that the court modified the 1955 consent decree despite Columbia’s opposition to such modification.

We believe that the modification of a previously entered consent decree under the circumstances present here raises substantial questions of law. This Court has held that a consent decree ordinarily may not be modified without the consent of the parties involved. In United States v. Swift & Co., 286 U. S. 106,119, Mr. Justice Cardozo stated for the Court: “Nothing less than a clear showing of grievous wrong evoked by new and unforeseen conditions should lead us to change what was decreed after years of litigation with the consent of all concerned.” See United States v. International Harvester Co., 274 U. S. 693; Ford Motor Co. v. United States, 335 U. S. 303. While the Court has allowed modifications in consent decrees upon occasion, see Chrysler Corp. v. United States, 316 U. S. 556; cf. Hughes v. United States, 342 U. S. 353, a showing of changed circumstances is usually necessary. Whether a modification of the consent decree was proper in this case, where no changed circumstances were claimed, should not be determined by this Court summarily. Additionally, the District Court’s determination that Columbia’s contract provision constitutes resale price maintenance prohibited by the Sherman Act, 26 Stat. 209, raises substantial issues of antitrust law which we believe also ought to be briefed and argued.

II.

Apart from what has already been said, there is another reason why this case should not be dealt with summarily. If the District Court’s action is not viewed as a modification of the decree, but rather as a determination that the decree neither specifically sanctioned nor prohibited Columbia’s contract provision, the court’s judgment must be viewed as a declaratory judgment that Columbia’s conduct violated the Sherman Act. In that event no appeal lies to this Court, for the Expediting Act, 32 Stat. 823, as amended, 15 U. S. C. § 29, allows direct appeals to this Court only in civil actions “wherein the United States is complainant.” If appellant is appealing from a declaratory judgment, this case should be transferred to the Court of Appeals for the Second Circuit. If the Court is holding by its action that the case is properly here because of the fact that the 1955 action was commenced by the Government, then the case raises substantial questions as to the scope of the Expediting Act which should be resolved only after plenary consideration. See Shenandoah Valley Broadcasting, Inc. v. ASCAP, 375 U. S. 39.

We would therefore “postpone jurisdiction” and set the case for argument.

Me. Justice Douglas took no part in the consideration or decision of this case.

      Summy-Birehard is successor to both the National Concert and Artists Corp. and its wholly owned subsidiary, Civic Concert Services, Inc.


author: Per Curiam.

text:
    BAXA et al. v. UNITED STATES.
    No. 957.
    Decided May 24, 1965.

      Melvin B. Lewis and Howard W. Minn for petitioners.

      Solicitor General Cox, Acting Assistant Attorney General Vinson, Beatrice Rosenberg and Kirby W. Patterson for the United States.
   Per Curiam.

The petition for writ of certiorari is granted. On consideration of the confession of error by the Solicitor General and upon examination of the entire record, the judgment is vacated and the case is remanded to the United States District Court for the Southern District of Illinois for a new trial.


text:
    SAMARA et al. v. OKLAHOMA CAPITOL IMPROVEMENT AUTHORITY.
    No. 1002.
    Decided May 24, 1965.

      Leroy Powers and Gus Rinehart for appellants.

      Charles Nesbitt, Attorney General of Oklahoma, and Harvey H. Cody and Joseph C. Muskrat, Assistant Attorneys General, for appellee.
   Per Curiam.

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


text:
    BILLY v. OKLAHOMA.
    No. 1034.
    Decided May 24, 1965.

      Sid White for appellant.
   Per Curiam.

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


text:
    WALKER v. GEORGIA.
    No. 1072.
    Decided May 24, 1965.

      Jack Greenberg, James M. Nabrit III and Donald L. Hollowell for petitioner.

      Lewis B. Slaton and Carter Goode for respondent.
   Per Curiam.

The petition for writ of certiorari is granted and the judgment is reversed. Hamm v. City of Rock Hill and Lupper v. Arkansas, 379 U. S. 306.

Mr. Justice Stewart would vacate the judgment and remand the case to the Supreme Court of Georgia for reconsideration in the light of supervening federal legislation, in accordance with the views expressed in his dissenting opinion in Hamm v. City of Rock Hill, 379 U. S. 306, 326.

Mr. Justice Black, Mr. Justice Harlan, and Mr. Justice White would affirm the judgment of the Supreme Court of Georgia for the reasons stated in their dissenting opinions in Hamm v. City of Rock Hill, 379 U. S. 306, 318, 322, 327.


text:
    McLEOD v. OHIO.
    No. 1117,
    Misc.
    Decided May 24, 1965.
    Petitioner pro se.

      James V. Barbuto and John D. Smith for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is reversed. Massiah v. United States, 377 U. S. 201.