source: Caselaw Access Project

author: Mr. Chief Justice Burger Mr. Justice Brennan, Mr. Justice Rehnquist,

license: Public Domain

text:
    HYNES et al. v. MAYOR AND COUNCIL OF BOROUGH OF ORADELL et al.
    No. 74-1329.
    Argued December 10, 1975
    Decided May 19, 1976
    Burger, C. J., delivered the opinion of the Court, in which Stewart, White, Blackmun, and Powell, JJ., joined and in Part 3 of which Brennan, J., joined. Brennan, J., filed an opinion concurring in part, in which Marshall, J., joined, post, p. 623. Rehn-qtjist, J., filed a dissenting opinion, post, p. 630. Stevens, J., took no part in the consideration or decision of the case.

      Telford Taylor argued the cause for appellants. With him on the brief were Kenneth Simon and Robert Funicello.

      James A. Major argued the cause for appellees. On the brief was Everett I. Smith.

   Mr. Chief Justice Burger

delivered the opinion of the Court.

The question presented in this case is whether a municipal ordinance requiring advance notice to be given to the local police department by “[a]ny person desiring to canvass, solicit or call from house to house ... for a recognized charitable cause . . . or . . . political campaign or cause ... in writing, for identification only” violates the guarantees of freedom of speech and due process of law embodied in the Fourteenth Amendment.

(1)

The Borough of Oradell, N. J., has enacted two ordinances that together regulate most forms of door-to-door canvassing and solicitation. A broad ordinance, No. 573, requires all solicitors to obtain a permit from the borough clerk, by making a formal application, accompanied by a description and photograph of the applicant, the description and license number of any automobile to be used in soliciting, a driver’s license, and other data. The ordinance apparently requires that the chief of police approve issuance of the permit.

The ordinance at issue here, Ordinance No. 598A, is an amendment to this broader scheme, and imposes no permit requirement; it covers persons soliciting for “a recognized charitable cause, or any person desiring to canvass, solicit or call from house, to house for a Federal, State, County or Municipal political campaign or cause.” Ordinance No. 598A also applies to “representatives of Borough Civic Groups and Organizations and any veterans honorably discharged or released under honorable circumstances” from the Armed Forces. Those covered by this ordinance are required only to “notify the Police Department, in writing, for identification only.” Once given, the notice is “good for the duration of the campaign or cause.”

Appellants are Edward Hynes, a New Jersey state assemblyman whose district was redrawn in 1973 to include the Borough of Oradell, and three Oradell registered voters. They brought suit in the Superior Court of Bergen County, N. J., seeking a declaration that Ordinance No. 598A was unconstitutional and an injunction against its enforcement. Appellant Hynes alleged that he wished to campaign for re-election in Oradell. The other appellants alleged either that they wished to canvass door to door in the borough for political causes or that they wished to speak with candidates who campaigned in Oradell. Each appellant claimed that the ordinance would unconstitutionally restrict such activity.

The Superior Court held the ordinance invalid for three reasons. First, the court noted that it contained no penalty clause, and hence was unenforceable under New Jersey law; second, the court held that the ordinance was not related to its announced purpose — the prevention of crime — since it required only candidates and canvassers to register. Finally, the court concluded that the ordinance was vague and overbroad — unclear “as to what is, and what isn’t required” of those who wished to canvass for political causes. The Appellate Division of the Superior Court affirmed, reaching and accepting only the first ground for the trial court’s decision.

The Supreme Court of New Jersey reversed. 66 N. J. 376, 331 A. 2d 277 (1975). It noted that a penalty clause, enacted during the pendency of the appeal, cured the defect that had concerned the Appellate Division. Relying largely on a decision in a case dealing with a similar ordinance, Collingswood v. Ringgold, 66 N. J. 350, 331 A. 2d 262 (1975), appeal docketed, No. 74-1335, the court held that Ordinance No. 598A was a legitimate exercise of the borough’s police power, enacted to prevent crime and to reduce residents’ fears about strangers wandering door to door. The ordinance regulated conduct— door-to-door canvassing — as well as speech, and in doing so “it could hardly be more clear.” 66 N. J., at 380, 331 A. 2d, at 279. The ordinance, the court thought, imposed minimal requirements which did not offend free speech interests:

“It may be satisfied in writing, suggesting that resort may be had to the mails. It need be fulfilled only once for each campaign. There is no fee. The applicant does not have to obtain or carry a card or license. And perhaps most importantly, no discretion reposes in any municipal official to deny the privilege of calling door to door. The ordinance is plainly an identification device in its most basic form.” Ibid.

Two of the court’s seven members dissented. One justice thought the ordinance “plain silly” as a crime-prevention measure, for the reasons given by the trial court. Id., at 382, 331 A. 2d, at 280; another justice thought that the “ordinance has the potential to have a significant chilling effect on the exercise of first amendment rights and thus infringes on these rights.” Id., at 389, 331 A. 2d, at 284.

(2)

We are not without guideposts in considering appellants’ First Amendment challenge to Ordinance No. 598A. “Adjustment of the inevitable conflict between free speech and other interests is a problem as persistent as it is perplexing,” Niemotko v. Maryland, 340 U. S. 268, 275 (1951) (Frankfurter, J., concurring in result), and this Court has in several cases reviewed attempts by municipalities to regulate activities like canvassing and soliciting. Regulation in this area “must be done, and the restriction applied, in such a manner as not to intrude upon the rights of free speech and free assembly,” Thomas v. Collins, 323 U. S. 516, 540-541 (1945). But in these very cases the Court has consistently recognized a municipality’s power to protect its citizens from crime and undue annoyance by regulating soliciting and canvassing. A narrowly drawn ordinance, that does not vest in municipal officials the undefined power to determine what messages residents will hear, may serve these important interests without running afoul of the First Amendment.

In Lovell v. Griffin, 303 U. S. 444 (1938), the Court held invalid an ordinance that prohibited the distribution of “literature of any kind . . . without first obtaining written permission from the City Manager,” id., at 447. The ordinance contained “no restriction in its application with respect to time or place,” and was “not limited to ways which might be regarded as inconsistent with the maintenance of public order or as involving disorderly conduct, the molestation of the inhabitants, or the misuse or littering of the streets.” Id., at 451.

A year later, in Schneider v. State, 308 U. S. 147 (1939), the Court held unconstitutional an Irvington, N. J., ordinance that dealt specifically with house-to-house canvassers and solicitors. The ordinance required them to obtain a permit, which would not issue if the chief of police decided that “the canvasser is not of good character or is canvassing for a project not free from fraud.” Id., at 158. Because the Court concluded that the canvasser’s “liberty to communicate with the residents of the town at their homes depends upon the exercise of the officer’s discretion,” id., at 164, the Court held the ordinance invalid. In Cantwell v. Connecticut, 310 U. S. 296 (1940), the Court held that a similar permit ordinance, as applied to prevent Jehovah’s Witnesses from soliciting door to door, infringed upon the right to free exercise of religion, guaranteed by the First and Fourteenth Amendments. And in Martin v. Struthers, 319 U. S. 141 (1943), the Court struck down a municipal ordinance that made it a crime for a solicitor or canvasser to knock on the front door of a resident’s home or ring the doorbell. See also Staub v. City of Baxley, 355 U. S. 313 (1958).

In reaching these results, the Court acknowledged the valid and important interests these ordinances sought to serve. In Martin, supra, at 144, Mr. Justice Black writing for the Court stated:

“Ordinances of the sort now before us may be aimed at the protection of the householders from annoyance, including intrusion upon the hours of rest, and at the prevention of crime. Constant callers, whether selling pots or distributing leaflets, may lessen the peaceful enjoyment of a home as much as a neighborhood glue factory or railroad yard which zoning ordinances may prohibit. . . . In addition, burglars frequently pose as canvassers, either in order that they may have a pretense to discover whether a house is empty and hence ripe for burglary, or for the purpose of spying out the premises in order that they may return later. Crime prevention may thus be the purpose of regulatory ordinances.”

As Mr. Justice Black suggested, the lone housewife has no way of knowing whether the purposes of the putative solicitor are benign or malignant, and even an innocuous caller “may lessen the peaceful enjoyment of a home.” Ibid. In his view a municipality “can by identification devices” regulate canvassers in order to deter criminal conduct by persons “posing as canvassers,” id., at 148, relying on. the Court’s statement in Cantwell, supra, at 306:

“Without doubt a State may protect its citizens from fraudulent solicitation by requiring a stranger in the community, before permitting him publicly to solicit funds for any purpose, to establish his identity and his authority to act for the cause which he purports to represent.”

These opinions of the Court and the dissenting opinions found common ground as to the important municipal interests at stake. See Martin v. Struthers, supra, at 152 (Frankfurter, J., dissenting); id., at 154 (Reed, J., dissenting); Douglas v. Jeannette, 319 U. S. 157, 166 (1943) (Jackson, J., dissenting in Martin v. Struthers). Professor Zechariah Chafee articulated something of the householder's right to be let alone, saying:

“Of all the methods of spreading unpopular ideas, [house-to-house canvassing] seems the least entitled to extensive protection. The possibilities of persuasion are slight compared with the certainties of annoyance. Great as is the value of exposing citizens to novel views, home is one place where a man ought to be able to shut himself up in his own ideas if he desires.” Free Speech in the United States 406 (1954).

Professor Chafee went on to note: “[These cases] do not invalidate all ordinances that include within their scope . . . doorway dissemination of thought. Several sentences in the opinions state that ordinances suitably designed to take care of legitimate social interests are not void.” Id., at 407.

There is, of course, no absolute right under the Federal Constitution to enter on the private premises of another and knock on a door for any purpose, and the police power permits reasonable regulation for public safety. We cannot say, and indeed appellants do not argue, that door-to-door canvassing and solicitation are immune from regulation under the State’s police power, whether the purpose of the regulation is to protect from danger or to protect the peaceful enjoyment of the home. See Rowan v. Post Office Dept., 397 U. S. 728, 735-738 (1970).

(3)

There remains the question whether the challenged ordinance meets the test that in the First Amendment area “government may regulate . . . only with narrow specificity.” NAACP v. Button, 371 U. S. 415, 433 (1963). As a matter of due process, “[n]o one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.” Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939). The general test of vagueness applies with particular force in review of laws dealing with speech. “[S] tricter standards of permissible statutory vagueness may be applied to a statute having a potentially inhibiting effect on speech; a man may the less be required to act at his peril here, because the free dissemination of ideas may be the loser.” Smith v. California, 361 U. S. 147, 151 (1959). See also Buckley v. Valeo, 424 U. S. 1, 76-82 (1976); Broadrick v. Oklahoma, 413 U. S. 601, 611-612 (1973).

Notwithstanding the undoubted power of a municipality to enforce reasonable regulations to meet the needs recognized by the Court in the cases discussed, we conclude that Ordinance No. 598A must fall because in certain respects “men of common intelligence must necessarily guess at its meaning.” Connally v. General Constr. Co., 269 U. S. 385, 391 (1926). Since we conclude that the ordinance is invalid because of vagueness, we need not reach the other arguments appellants advance.

First, the coverage of the ordinance is unclear; it does not explain, for example, whether a “recognized charitable cause” means one recognized by the Internal Revenue Service as tax exempt, one recognized by some community agency, or one approved by some municipal official. While it is fairly clear what the phrase “political campaign” comprehends, it is not clear what is meant by a “Federal, State, County or Municipal... cause.” Finally, it is not clear what groups fall into the class of “Borough Civic Groups and Organizations” that the ordinance also covers.

Second, the ordinance does not sufficiently specify what those within its reach must do in order to comply. The citizen is informed that before soliciting he must “notify the Police Department, in writing, for identification only.” But he is not told what must be set forth in the notice, or what the police will consider sufficient as “identification.” This is in marked contrast to Ordinance No. 573 which sets out specifically what is required of commercial solicitors; it is not clear that the provisions of Ordinance 573 extend to Ordinance 598A. See n. 1, supra. Ordinance No. 598A does not have comparable precision. The New Jersey Supreme Court construed the ordinance to permit one to send the required identification by mail; a canvasser who used the mail might well find — too late — that the identification he provided by mail was inadequate. In this respect, as well as with respect to the coverage of the ordinance, this law “may trap the innocent by not providing fair warning.” Grayned v. City of Rockford, 408 U. S. 104, 108 (1972). Nor does the ordinance “provide explicit standards for those who apply” it. Ibid. To the extent that these ambiguities and the failure to explain what “identification” is required give police the effective power to grant or deny permission to canvass for political causes, the ordinance suffers in its practical effect from the vice condemned in Lovell, Schneider, Cantwell, and Staub. See also Papachristou v. City of Jacksonville, 405 U. S. 156, 162 (1972); Coates v. City of Cincinnati, 402 U. S. 611, 614 (1971); Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. Pa. L. Rev. 67, 75-85 (1960).

The New Jersey Supreme Court undertook to give the ordinance a limiting construction by suggesting that since the identification requirement “may be satisfied in writing, . . . resort may be had to the mails,” 66 N. J., at 380, 331 A. 2d, at 279, but this construction of the ordinance does not explain either what the law covers or what it requires; for example, it provides no clue as to what is a “recognized charity”; nor is political “cause” defined. Cf. Colten v. Kentucky, 407 U. S. 104, 110-111 (1972); Chaplinsky v. New Hampshire, 315 U. S. 568 (1942); Cox v. New Hampshire, 312 U. S. 569 (1941). Even assuming that a more explicit limiting interpretation of the ordinance could remedy the flaws we have pointed out— a matter on which we intimate no view — we are without power to remedy the defects by giving the ordinance constitutionally precise content. Smith v. Goguen, 415 U. S. 566, 575 (1974).

Accordingly, the judgment is reversed, and the case is remanded to the Supreme Court of New Jersey for further proceedings not inconsistent with this opinion.

It is so ordered.

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

Mr. Justice Brennan,

with whom Mr. Justice Marshall joins, concurring in part.

I join Part 3 of the Court’s opinion holding that Oradell Ordinance No. 598A must be invalidated as im-permissibly vague. The Court reserves decision on other constitutional contentions alleged to invalidate the ordinance. Ante, at 620-621, n. 4. Despite this reservation, Part 2 of the Court’s opinion may be read as suggesting that, vagueness defects aside, an ordinance of this kind would ordinarily withstand constitutional attack. Because I believe that such ordinances must encounter substantial First Amendment barriers besides vagueness, I cannot join Part 2 and briefly state my reasons.

In considering the validity of laws regulating door-to-door solicitation and canvassing, Mr. Justice Black, speaking for the Court in Martin v. Struthers, 319 U. S. 141 (1943), properly recognized that municipalities have an important interest in keeping neighborhoods safe and peaceful. But unlike the Court today, he did not stop there. Rather, he- emphasized the other side of the equation — that door-to-door solicitation and canvassing is a method of communication essential to the preservation of our free society. He said:

“While door to door distributers of literature may be either a nuisance or a blind for criminal activities, they may also be useful members of society engaged in the dissemination of ideas in accordance with the best tradition of free discussion. The widespread use of this method of communication by many groups espousing various causes attests its major importance. ‘Pamphlets have proved most effective instruments in the dissemination of opinion. And perhaps the most effective way of bringing them to the notice of individuals is their distribution at the homes of the people.' Schneider v. State, [308 U. S. 147, 164 (1939)]. Many of our most widely established religious organizations have used this method of disseminating their doctrines, and laboring groups have used it in recruiting their members. The federal government, in its current war bond selling campaign, encourages groups of citizens to distribute advertisements and circulars from house to house. Of course, as every person acquainted with political life knows, door to door campaigning is one of the most accepted techniques of seeking popular support, while the circulation of nominating papers would be greatly handicapped if they could not be taken to the citizens in their homes. Door to door distribution of circulars is essential to the poorly financed causes of little people.” Id., at 145-146.

It can hardly be denied that an ordinance requiring the door-to-door campaigner to identify himself discourages free speech. Talley v. California, 362 U. S. 60 (1960), invalidated a Los Angeles ordinance requiring handbills to carry the name and address of persons writing, printing, or distributing them. Since the requirement destroyed anonymity, “[t]here [could] be no doubt that such an identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression/' id., at 64, for:

“Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all. . . . Even the Federalist Papers, written in favor of the adoption of our Constitution, were published under fictitious names. It is plain that anonymity has sometimes been assumed for the most constructive purposes.” Id., at 64r-65.

No less may be said of anonymity sought to be preserved in the door-to-door exposition of ideas. That anonymity is destroyed by an identification requirement like the Oradell ordinance. “ [Identification and fear of reprisal might deter perfectly peaceful discussions of public matters of importance,” id., at 65, particularly where door-to-door solicitation seeks discussion of sensitive and controversial issues, such as civilian police review boards, the decriminalization of specified types of conduct, or the recall of an elected police oficial. Deplorably, apprehension of reprisal by the average citizen is too often well founded. The national scene in recent times has regrettably provided many instances of penalties for controversial expression in the form of vindictive harassment, discriminatory law enforcement, executive abuse of administrative powers, and intensive government surveillance.

Nor is the threat to free expression by ordinances of this type limited to their jeopardization of anonymity. Perhaps an even greater threat lies in the impermissible burden they impose upon political expression, the core conduct protected by the First Amendment. Unquestionably, the lifeblood of today’s political campaigning must be the work of volunteers. The oppressive financial burden of campaigns makes reliance on volunteers absolutely essential and, in light of the enormous significance of citizen participation to the preservation and strength of the democratic ideal, absolutely desirable, indeed indispensable. Offensive to the sensibilities of private citizens, identification requirements such as the Oradell ordinance, even in their least intrusive form, must discourage that participation.

I recognize that there are governmental interests that may justify restraints on free speech. But in the area of First Amendment protections, “[t]he rational connection between the remedy provided and the evil to be curbed, which in other contexts might support legislation against attack on due process grounds, will not suffice.... Accordingly, whatever occasion would restrain orderly-discussion and persuasion, at appropriate time and place, must have clear support in public danger, actual or impending.” Thomas v. Collins, 323 U. S. 516, 530 (1945). Restraints implicit in identification requirements, however, extend beyond restrictions on time and place — they chill discussion itself. The Oradell type of ordinance therefore raises substantial First Amendment questions not presented by the usual time, place, and manner regulation. See Grayned v. City of Rockford, 408 U. S. 104, 115 (1972). Under the ordinance, no authentication of identity need be submitted, and therefore the requirement can be easily evaded. In that circumstance, the requirement can hardly be justified as protective of overriding governmental interests since evasion can easily thwart that objective. See Buckley v. Valeo, 424 U. S. 1, 45 (1976). But imposition of more burdensome identification requirements, such as authentication, would doubtless only serve further to discourage protected activity and, therefore, not eliminate the First Amendment difficulty. Moreover, the purported aid to crime prevention provided by identification of solicitors is not so self-evident as to relieve the State of the burden of proving that this asserted interest would be served. What Mr. Justice Harlan said of the handbill ordinance invalidated in Talley may equally be said of ordinances of the Oradell type:

“Here the State says that this ordinance is aimed at the prevention of ‘fraud, deceit, false advertising, negligent use of words, obscenity, and libel/ in that it will aid in the detection of those responsible for spreading material of that character. But the ordinance is not so limited, and I think it will not do for the State simply to say that the circulation of all anonymous handbills must be suppressed in order to identify the distributors of those that may be of an obnoxious character. In the absence of a more substantial showing as to Los Angeles’ actual experience with the distribution of obnoxious handbills, such a generality is for me too remote to furnish a constitutionally acceptable justification for the deterrent effect on free speech which this all-embracing ordinance is likely to have.” 362 U. S., at 66-67 (concurring opinion).

Contrary to the thrust of Part 2 of the Court’s opinion, it seems inescapable that ordinances of the Oradell type, however precisely drafted to avoid the pitfalls of vagueness, must present substantial First Amendment questions. The imperiling of precious constitutional values, for reasons however justifiable, cannot be taken lightly. The prevention of crime is, of course, one of the most serious of modern-day problems. But our perception as individuals of the need to solve that particular problem should not color our judgment as to the constitutionality of measures aimed at that end.

Mr. Justice Rehnquist,

dissenting.

I agree with virtually everything said in Parts 1 and 2 of the Court’s opinion, which indicates that the Oradell ordinance in question can survive a wide range of “as applied” challenges based on the First and Fourteenth Amendments. I do not agree with Part 3 of the Court’s opinion, which concludes that the ordinance is unconstitutionally vague as presently drafted.

The Court recognizes that none of our cases have ever suggested that a regulation requiring only identification of canvassers or solicitors would violate any constitutional limitation. As noted by the Court in Part 2 of its opinion, at least two decisions have taken care to point out that such ordinances would unquestionably be valid. See Cantwell v. Connecticut, 310 U. S. 296, 306 (1940); Martin v. Struthers, 319 U. S. 141, 148 (1943).

I also agree with the Court’s observation that:

“A narrowly drawn ordinance, that does not vest in municipal officials the undefined power to determine what messages residents will hear, may serve these important interests without running afoul of the First Amendment.” Ante, at 617.

The Court goes on to point out that this element of unbridled official discretion was present in all those cases in which the Court has invalidated laws which might otherwise be thought to bear a superficial resemblance to the ordinance at issue here. There is clearly no such vice in the Oradell ordinance. As the Court recognizes, Ordinance No. 598A “imposes no permit requirement.” Ante, at 612. Instead, it comes to us with the binding, NAACP v. Button, 371 U. S. 415, 432 (1963), construction of the New Jersey Supreme Court that under Oradell’s law “no discretion reposes in any municipal official to deny the privilege of calling door to door.” Ante, at 616, quoting from 66 N. J. 376, 380, 331 A. 2d 277, 279 (1975).

After demonstrating the undoubted constitutional validity of Oradell’s ordinance in all other respects, the Court proceeds in Part 3 of its opinion to determine that the ordinance is unconstitutional because of its asserted vagueness. But even allowing for the stricter standard which the Court says is appropriate in dealing with laws regulating speech, ante, at 620, I fail to see any vagueness in this ordinance which would not inhere in any ordinance or statute which has never been applied.

The first alleged infirmity cited by the Court is that the ordinance’s coverage is unclear. It suggests that this occurs because it is difficult to ascertain precisely what “causes” are covered by the law or what groups come within a general definition found therein. Assuming for the moment that these references in the ordinance may be “vague,” at least ás that term is colloquially employed, there is no one in this case who may raise any claim that this “vagueness” is of constitutional dimension. From their verified complaint filed in Bergen County Superior Court, it is clear that appellants asserted interests only in the ordinance’s effect upon political canvassing, either as it would deter their own ability to seek political support or in their desire to receive such entreaties in their homes. App. F. None of the appellants assert any connection with “charitable” or any other “causes,” nor do they profess membership in any groups which might come within the class of “Borough Civic Groups and Organizations” which the Court believes to be somehow unclearly defined. And since the Court accepts that the only conduct which appellants present — political canvassing — may validly be regulated by means of an identification requirement more “narrowly drawn” than that at issue here, there would seem to be no justification, even on the Court’s theory of this case, to permit appellants to raise claims which others might havé against the ordinance. Broadrick v. Oklahoma, 413 U. S. 601 (1973).

The Court seems initially to suggest in a footnote, ante, at 621 n. 5, that reliance upon a “vagueness” theory may somehow displace the normal prohibition against assertion of constitutional jus tertii. Any logic in such a purported distinction escapes me. Broadrick recognized that it is only the application of the doctrine of “overbreadth” which sometimes permits limited exceptions to traditional rules of standing in the First Amendment area. 413 U. S., at 610-616. Here no tenable overbreadth claim exists, and the Court correctly eschews reliance upon that doctrine. Thus the only claims properly before us are those based upon rights personal to the appellants. I do not understand the Court to dispute this proposition: instead of attempting to rely upon whatever distinctions which invocation of “vagueness” may afford, the Court in its footnote goes on to discover allegations of several appellants regarding asserted personal “rights” to receive information of political causes which it concludes are sufficient to confer standing. I read the appellants’ complaint differently than does the Court. But more fundamentally, I fail to see how assertion of a purported “right to receive information” may permit one to raise a challenge grounded upon hypothetical canvassers'1 potential uncertainty regarding coverage of an ordinance. And even if the Court were correct in determining that the scope of “political cause” is properly drawn into question, its expressions of uncertainty as to what constitutes a “recognized charitable cause” or a “Borough Civic Group [or] Organization” continue to float wholly detached from any plaintiff with standing to challenge those aspects of the ordinance’s coverage.

Assuming, on the other hand, that such issues as to the clarity of the coverage of Ordinance No. 598A are properly before the Court, I can see no constitutional infirmity in its language. In Broadrick we held that claims of vagueness directed against indistinguishable phrasing found in Oklahoma’s Merit System of Personnel Administration Act were “all but frivolous.” 413 U. S., at 607. In so doing we recognized:

“Words inevitably contain germs of uncertainty and . . . there may be disputes over the meaning of such terms .... But . . . 'there are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that although the [definitions] may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest.’ ” Id., at 608, quoting from CSC v. Letter Carriers, 413 U. S. 548, 578-579 (1973).

Broadrick’s recognition of the inherent limitations upon anticipating and defining away every problem of interpretation which might arise regarding a new statute is undeniably sound, and it is largely dispositive of any claim that the ordinance’s coverage is so unclear as to violate constitutional limitations.

The other shortcoming which the Court criticizes is the ordinance’s failure to “sufficiently specify what those within its reach must do in order to comply.” Ante, at 621. But, as the Court recognizes, the ordinance demands quite plainly that a person such as appellant Hynes who desires to canvass in the borough must “notify the Police Department, in writing, for identification only.” As the chief of police of the borough of Oradell put it in an affidavit submitted to the Superior Court: “All that is asked is that [a political candidate] let us know who he is.” App. G-5. I cannot see how this provision can possibly become the trap for the unwary the Court suggests in its opinion.

Appellant Hynes, for example, knows he is involved in a political campaign and that he must identify himself, in writing, to the Oradell Police Department if he desires to canvass door to door there. Should he have any doubts as to whether his identification is sufficiently detailed, he has simple recourse close at hand; he need only ask the Oradell police: “Is that enough? Do you require anything more?” Persons may thus learn exactly what is required in practice. The Court hypothesizes that a canvasser who chose to submit the requisite identification to the Oradell police by mail might learn “too late” that his submission was inadequate. Such good-faith attempts at compliance might be found to preclude liability, and the availability of similar narrowing constructions says a good deal about the wisdom of declaring this law unconstitutional before it has ever been applied. But even apart from these considerations the most that the ordinance imposes upon potential cas-vassers is the necessity of identifying themselves sufficiently in advance to ensure they have satisfied the law before embarking door to door in Oradell. Such a delay, which can hardly be more than a few days, is surely not an unconstitutional burden upon appellants’ rights. Surely “the guarantees of freedom of speech and due process of law embodied in the Fourteenth Amendment/’ ante, at 611, do not require that an ordinance validly requiring the identification of citizens must specify every way in which they may satisfactorily provide that information. No constitutional value is served by permitting persons who have avoided any possibility of attempting to ascertain how they may comply with a law to claim that their studied ignorance demonstrates that the law is impermissibly vague.

Finally, I do not understand the Court’s concluding observations regarding the vice of vagueness which it perceives in the ordinance’s compliance directive. The Court suggests that unspecified ambiguities may “give police the effective power to grant or deny permission to canvass for political causes.” Ante, at 622. But as the Court itself notes in Part 2 of its opinion, it has been authoritatively held as a matter of New Jersey law that this ordinance reposes “no discretion ... in any municipal official to deny the privilege of calling door to door.” Thus the authorities which the Court cites directly before the penultimate paragraph of its opinion afford no support for the result it reaches.

The Court “intimate [s] no view” as to appellants’ other contentions, ante, at 621 n. 4. Since I do not agree that there exists any unconstitutional vagueness in Ordinance No. 598A, I have felt obliged to consider these contentions to determine if today’s result can be defended upon some other ground. I do not believe that it can be. I would therefore affirm the judgment of the Supreme Court of New Jersey.

       Ordinance No. 573 provides in relevant part:

        “Section 1. Permit Required

      “No person shall canvass or solicit or call from house to house in the Borough to sell or attempt to sell goods by sample or to take or attempt to take orders for the future delivery of goods, merchandise, wares, or any personal property of any nature whatsoever, or take or attempt to take orders for services to be furnished or performed in the future, without first having received a written permit therefor.

        “Sections. Application for Permit: Contents Thereof

      “a) Any person desiring a permit to canvass or solicit in the Borough shall file, on a form to be supplied by the Borough Clerk, an application with the Borough Clerk stating:
      "(1) Name of applicant;
      “(2) Permanent home address;
      "(3) Name and address of employer or firm represented;
      "(4) Place or places of residence of the applicant for the preceding three years;
      “(5) Date on which he desires to commence canvassing or soliciting;
      “(6) Nature of merchandise to be sold or offered for sale or the nature of the services to be furnished;
      “(7) Whether or not the applicant has ever been convicted of a crime, misdemeanor, or violation of any ordinance concerning canvassing or soliciting, and if so, when, where and the nature of the offense;
      “(8) Names of other communities in New Jersey in which applicant has worked as a solicitor or canvasser in the past 2 years.
      “b) Said application shall also be accompanied by a letter or other written statement from the individual, firm or corporation employing the applicant, certifying that the applicant is authorized to act as the employer’s representative.
      “c) No such application shall be filed more than 3 months prior to the time such canvassing or soliciting shall commence.

        “Section 4- Investigation: Issuance of Permit

      “The Borough Clerk shall give a copy of the application to the Chief of Police who shall cause such investigation to be made of the applicant’s business and moral character as he deems necessary for the protection of the public good. He shall use any information available in other New Jersey cities, towns or boroughs, where the applicant has canvassed or solicited within 2 years last past.

        “Section 6. Penalty

      “Any person, firm or corporation violating any provision of this ordinance shall, upon conviction thereof, be fined in an amount not exceeding $500.00 or be imprisoned in the County Jail for a period not exceeding ninety (90) days, or be both fined and imprisoned. Each day said violation is permitted or is permitted to continue, shall constitute a separate offense and shall be subject to a penalty hereunder.”
      In Collingswood v. Ringgold, 66 N. J. 350, 331 A. 2d 262 (1975), appeal docketed, No. 74-1335, decided the same day as the ease reviewed here, the New Jersey Supreme Court held that an ordinance quite similar to Ordinance No. 573 was invalid insofar as it vested in the chief of police too much discretion in deciding whether or not to grant a canvassing permit. The court in Collingswood accordingly struck that provision of the ordinance, but let the remainder stand.

       Ordinance No. 598A provides in relevant part:
      “Whereas, The Borough of Oradell is primarily a one family residential town whose citizens are employed elsewhere, resulting in the wives of the wage earner being left alone during the day; and
      “Whereas, because of the geographical location of most of the homes it is impossible to police all areas at the same time, resulting in a number of break and entries and larceny in the home; and
      “Whereas, it is in the public interest and the public safety that persons not be permitted to call from house to house on the pretext of soliciting votes for a designated candidate or signatures for a nominating petition, or to solicit for a recognized charitable cause or borough activity, without such persons being first identified by the Police Department; and
      “Whereas, the Mayor and Borough Council of The Borough of Oradell feel that it is in the public interest and for the protection of The Borough of Oradell that such persons be required to notify the Police Department for the purpose of identification.
      “Now, therefore, be it ordained by the Borough Council of The Borough of Oradell, in the County of Bergen and State of New Jersey, that an ordinance entitled ‘An ordinance to regulate and prohibit canvassing and soliciting in The Borough of Oradell and establish fees and provide penalties for the violation thereof be amended and supplemented as follows:
      “(1) That Section 1 be amended and supplemented by the addition of Section 1 (a) to be entitled ‘Exceptions to Permit' as hereinafter set forth:
      “Section 1 (a): Exceptions to Permit
      “Any person desiring to canvass, solicit or call from house to house in the Borough for a recognized charitable cause, or any person desiring to canvass, solicit or call from house to house for a Federal, State, County or Municipal political campaign or cause, shall be required to notify the Police Department, in writing, for identification only. Said notification shall be good for the duration of the campaign or cause. The provisions of this section shall also apply to representatives of Borough Civic Groups and Organizations and any veterans honorably discharged or released under honorable circumstances from active service in any branch of the Armed Forces of the United States. All other Sections of Ordinance No. 573, with the exception of the penalty clause designated as Section 7 [sic], shall not be applicable to such persons or groups as designated herein.
      “(2) All ordinances or parts of ordinances inconsistent with this ordinance are hereby repealed."

       The trial court’s opinion in this regard appears to ignore the provisions of Ordinance No. 573, which covers other forms of door-to-door solicitation, and to which Ordinance No. 598A is an amendment.

       Appellants also argue that the ordinance bears no rational relationship to its announced purpose of crime prevention, that it is overbroad because it covers Oradell residents casually soliciting the votes of neighbors, and that it violates the Privileges and Immunities Clause of the Fourteenth Amendment by infringing on the right to meet and discuss national candidates. We intimate no view as to these contentions.

       The flaw we find in this ordinance is vagueness, not the over-breadth at issue in Broadrick v. Oklahoma, 413 U. S. 601 (1973), on which the dissent relies. Several appellants alleged that their right to receive information would be infringed because persons canvassing for political causes would be uncertain whether the ordinance covered them. In the circumstances of this case these allegations are enough to put in issue the precision or lack of precision with which the ordinance defines the categories of “causes” it covers.

       The agency charged with enforcement, the police department, has not adopted any regulations that would give more precise meaning to the ordinance — if indeed it has the legal power to do so. Cf. Broadrick, 413 U. S., at 616-617; CSC v. Letter Carriers, 413 U. S. 548, 575 (1973); Law Students Research Council v. Wadmond, 401 U. S. 154, 162-163 (1971). The chief of police suggested in an affidavit that neither a photograph nor fingerprints are required, and that the canvasser must simply “let us know who he is.” To the extent that this explanation adds any specificity to the ordinance, it does not purport to be binding on the enforcement authorities. Cf. ibid. Nor has the ordinance a history of “less formalized custom and usage” that might remedy the vagueness problems. Parker v. Levy, 417 U. S. 733, 754 (1974).

       Our recent decision in Buckley v. Valeo, 424 U. S. 1 (1976), is wholly consistent with this view. Buckley clearly recognized that “compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment.” Id., at 64. See id., at 68, 71, 81-82. In Buckley, the Court did uphold the disclosure provisions of the Federal Election Campaign Act despite their effect on anonymity, distinguishing Talley v. California, 362 U. S. 60 (1960), as involving a disclosure law not narrowly limited to situations where the information sought has a substantial connection with the governmental interest sought to be advanced. Here, however, there are substantial questions whether identification requirements like Oradell’s are so adequately related to their purpose as to withstand First Amendment challenge. See infra, at 628-630. Moreover, door-to-door solicitation, unlike the contribution of money, is an activity of high visibility. Consequently, the danger of deterrence is much greater here than with respect to contributions. Indeed, Buckley, in expressing its concern for the special problems of minority parties, recognized the greater threat posed to free speech where smaller numbers result in the clearer association of individuals with a cause. See 424 U. S., at 68-72.

       Ordinance 598A does not expressly require solicitors to identify the political campaign or candidate for whose cause they solicit. It may be that such a requirement is implicit in the provision that “notification [to the police] shall be good for the duration of the campaign or cause.” If so, there may be a First Amendment question whether that disclosure can be compelled. Indeed, that question would be presented even if a requirement of personal identification could withstand First Amendment challenge.

       "Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order ‘to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’ Roth v. United States, 354 U. S. 476, 484 (1957). Although First Amendment protections are not confined to ‘the exposition of ideas,’ Winters v. New York, 333 U. S. 507, 510 (1948), ‘there is practically universal agreement that a major purpose of th[e] Amendment was to protect the free discussion of governmental affairs, ... of course includ[ing] discussions of candidates . . . .’ Mills v. Alabama, 384 U. S. 214, 218 (1966). This no more than reflects our ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,’ New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964). In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential, for the identities of those who are elected will inevitably shape the course that we follow as a nation. As the Court observed in Monitor Patriot Co. v. Roy, 401 U. S. 265, 272 (1971), ‘it can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.’ ” Buckley v. Valeo, supra, at 14-15.
      “The First Amendment does not protect a ‘freedom to speak.’ It protects the freedom of those activities of thought and communication by which we ‘govern.’...
      “In the specific language of the Constitution, the governing activities of the people appear only in terms of casting a ballot. But in the deeper meaning of the Constitution, voting is merely the external expression of a wide and diverse number of activities by means of which citizens attempt to meet the responsibilities of making judgments, which that freedom to govern lays upon them. . . .
      “The responsibilities mentioned are of three kinds. We, the people who govern, must try to understand the issues which, incident by incident, face the nation. We must pass judgment upon the decisions which our agents make upon those issues. And, further, we must share in devising methods by which those decisions can be made wise and effective or, if need be, supplanted by others which promise greater wisdom and effectiveness. . . . These are the activities to whose freedom [the First Amendment] gives its unqualified protection.” Meiklejohn, The First Amendment is an Absolute, 1961 Sup. Ct. Rev. 245, 255.

       To be sure, Mr. Justice Black did observe in Martin v. Struthers, 319 U. S. 141, 148 (1943), that “[a] city can ... by identification devices control the abuse of the privilege by criminals posing as canvassers.” The validity of that passing remark, however, may be questioned in light of the later decisions in Talley v. California, supra, and Thomas v. Collins, 323 U. S. 516 (1945). Moreover, the footnote accompanying that statement apparently limited its applicability to solicitation of money. The footnote states: “ 'Without doubt a State may protect its citizens from fraudulent solicitation by requiring a stranger in the community, before permitting him publicly to solicit funds for any purpose, to establish his identity and his authority to act for the cause which he purports to represent' ” 319 U. S., at 148 n. 14 (emphasis added) (quoting Cantwell v. Connecticut, 310 U. S. 296, 306 (1940)). But, as I suggest in the text, solicitation of support for a candidate in a political campaign presents a First Amendment question of a very different order. The opinion in Thomas draws the distinction:
      “We think a requirement that one must register before he undertakes to make a public speech to enlist support for a lawful movement is quite incompatible with the requirements of the First Amendment.
      “Once the speaker goes further, however, and engages in conduct which amounts to more than the right of free discussion comprehends, as when he undertakes the collection of funds or securing subscriptions, he enters a realm where a reasonable registration or identification requirement may be imposed. . . .” 323 U. S., at 540.

       Indeed, the opinion of the New Jersey Supreme Court suggests that mailing the information would satisfy the ordinance’s identification requirements. See 66 N. J. 376, 380, 331 A. 2d 277, 279 (1975).

       See also Buckley v. Valeo, 424 U. S., at 64: “We long have recognized that significant encroachments on First Amendment rights of the sort that compelled disclosure imposes cannot be justified by a mere showing of some legitimate governmental interest. Since [NAACP v. Alabama, 357 U. S. 449 (1958)] we have required that the subordinating interests of the State must survive exacting scrutiny. We also have insisted that there be a ‘relevant correlation’ or ‘substantial relation’ between the governmental interest and the information required to be disclosed.”

      Had appellants attempted to bring their action in the Federal District Court for the District of New Jersey, Younger v. Harris, 401 U. S. 37 (1971), and its companion cases would seem to pose insuperable barriers to its successful maintenance. But as the New Jersey courts chose to entertain appellants’ constitutional challenge to the Oradell ordinance despite its having never been applied, the considerations of equity, comity, and federalism which underlie the holding in Younger are here largely absent. And since the judgment of the New Jersey Supreme Court is reviewable on our obligatory docket, 28 U. S. C. § 1257 (2), some of appellants’ claims are properly before the Court.


author: Mr. Justice Brennan Me. Chief Justice Burger,

text:
    AMERICAN MOTORISTS INSURANCE CO. v. STARNES
    No. 74-1481.
    Argued February 23, 1976
    Decided May 19, 1976
    Brennan, J., delivered the opinion of the Court, in which Stewart, White, Marshall, Blackmun, Powell, and Stevens, JJ., joined. Burger, C. J., filed an opinion concurring in the judgment, in which Rehnquist, J., joined, post, p. 646.

      Joel W. Westbrook argued the cause for appellant. With him on the brief was Matt C. C. Bristol III.

      W. V. Dunnam, Jr., argued the cause for appellee. On the brief was Fred J. Horner III.

   Mr. Justice Brennan

delivered the opinion of the Court.

Appellant, American Motorists Insurance Co., is an Illinois corporation authorized to do business in Texas with its principal office in Dallas County. As such, it is a “person” and an “inhabitant” of Texas having its “domicile” in Dallas County for the purposes of Texas’ general venue statute, Tex. Rev. Civ. Stat., Art. 1995 (1964). Snyder v. Pitts, 241 S. W. 2d 136 (Tex. 1951). Article 1995 provides, with specified exceptions: “No person who is an inhabitant of this State shall be sued out of the county in which he has his domicile . . . .” The exceptions pertinent to this case are Exceptions 23 and 27 of Art. 1995. Under Exception 23, suits against domestic corporations may be brought outside the domiciliary county upon proof by the plaintiff at a preliminary venue hearing, not only that the Texas corporation has an agency or representative in the county of suit and that plaintiff resided in or near such county at the time his cause of action arose, but also, by proof by a preponderance of the evidence, that he has a cause of action. Victoria Bank & Trust Co. v. Monteith, 158 S. W. 2d 63 (Tex. Comm’n App. 1941). Exception 27, on the other hand, allows suit against foreign corporations, including those like appellant, that have qualified to do business in Texas, to be brought “in any county where such company may have an agency or representative,” and the plaintiff is not required to prove, by a preponderance of the evidence, the elements of his cause of action at the preliminary venue hearing. The question for decision in this case, therefore, is whether Exception 27 effects an invidious discrimination against foreign corporations, constituting Exception 27 repugnant to the Equal Protection Clause of the Fourteenth Amendment.

Appellee Starnes, a resident of McLennan County, sued appellant in the District Court for McLennan County under the uninsured-motorist provisions of a liability insurance policy issued to appellee by appellant. The automobile collision out of which this cause of action and appellee’s damages arose occurred in Tarrant County. Appellant filed a plea of privilege to be sued in the county of its residence, Dallas County. A plea of privilege is a verified pleading by which, under Texas practice, a defendant challenges the venue of a suit. Tex. Rule Civ. Proc. 86. Appellee filed a controverting plea, a verified pleading by which, under Texas practice, the plaintiff states specifically the grounds relied upon to confer venue under one or more exceptions in Art. 1995. Ibid. The controverting plea asserted venue by virtue of both Exceptions 23 and 27, but at the preliminary venue hearing, appellee relied exclusively upon Exception 27 and a stipulation of the parties that appellant was a foreign corporation transacting business in Texas and that it had a local agent in McLennan County. Although appellant’s counsel inquired “if Plaintiff has any evidence other than that contained in the stipulation” and appellee’s counsel answered: “Not at this time,” App. 15, appellee was not required by the court, nor did he attempt, to offer evidence as to any of the elements of his cause of action. The District Court overruled appellant’s plea of privilege.

Appellant’s appeal to the Court of Civil Appeals of Texas presented the single question whether Exception 27 “is unconstitutionally discriminatory because it permits a foreign corporation to be venue bound without [plaintiff’s] proving a cause of action, but only . . . the existence within the venue county of defendant foreign corporation’s agent as compared with the requirement that a Texas domestic corporation can be venue bound under Subdivision 23 only if the existence of a cause of action is demonstrated.” 515 S. W. 2d 354, 355 (1974). The Court of Civil Appeals, relying upon a decision of the Texas Supreme Court, Commercial Ins. Co. v. Adams, 369 S. W. 2d 927 (1963), held that “exception 27, Article 1995 is not void and unconstitutional under the 14th Amendment to the United States Constitution as affording a wider venue action against foreign corporations than is afforded against domestic corporations under Section 23 of the same Article.” 515 S. W. 2d, at 355. The Supreme Court of Texas dismissed appellant’s application for writ of error “for want of jurisdiction.” We noted probable jurisdiction, 423 U. S. 819 (1975). We affirm.

We are unable to say that the treatment of foreign corporations effected by Exception 27 constitutes discrimination repugnant to the Equal Protection Clause. The gist of appellant’s argument is that, because Exception 27 does not require that plaintiff demonstrate the existence of his cause of action, there was “[djenied to appellant ... a virtually unique opportunity afforded to domestic corporations, to preview its adversary’s case in chief (except as to the extent of damages); to cross-examine plaintiff’s witnesses as to the nature and existence of the alleged cause of action; to obtain from the Court a venue ruling which would, under the circumstances, be tantamount to a judicial assessment of plaintiff’s cause of action; to nip a frivolous or baseless claim 'in the bud,’ before it could escalate into a lengthy, complex and time-consuming lawsuit; and finally, to obtain, by demanding a jury trial of the venue facts, either an early trial on the merits or at least a preliminary assessment by a jury of the plaintiff's credibility.” It was suggested at oral argument, however, that the actual burden imposed upon the plaintiff falls far short of proving his cause of action by a preponderance of the evidence. While Texas case law seems to reject proof of a prima facie case as sufficient, see Victoria Bank & Trust Co. v. Monteith, 158 S. W. 2d,.at 66-67, the parties suggest that in practice the venue proceedings are usually truncated and that prima facie proof is regarded as meeting the plaintiff’s burden. In that circumstance the domestic corporate defendant would not appear to enjoy any appreciable advantage denied the foreign corporate defendant. At most the plaintiff suing a domestic corporation is subjected to some measure of discovery. But Texas has a summary judgment procedure, Tex. Rule Civ. Proc. 166-A, and broad pretrial discovery procedures, Rules 167-170, 177a, 186-215c, 737; and they are equally available to the foreign corporate defendant. We cannot say in that circumstance that the foreign corporate defendant suffers any discrimination in being denied comparable discovery available to the domestic corporation at a preliminary venue hearing. Por, as the Court said in an analogous context: “[I]t is fundamental rights which the Fourteenth Amendment safeguards and not the mere forum which a State may see proper to designate for the enforcement and protection of such rights. Given therefore a condition where fundamental rights are equally protected and preserved, it is impossible to say that the rights which are thus protected and preserved have been denied because the State has deemed best to provide for a trial in one forum or another. It is not under any view the mere tribunal into which a person is authorized to proceed by a State which determines whether the equal protection of the law has been afforded, but whether in the tribunals which the State has provided equal laws prevail.” Cincinnati Street R. Co. v. Snell, 193 U. S. 30, 36-37 (1904). We are not confined to the language of the statute under challenge in determining whether that statute has any discriminatory effect. Just as a statute nondiscriminatory on its face may be grossly discriminatory in its operation, Williams v. Illinois, 399 U. S. 235, 242 (1970); Griffin v. Illinois, 351 U. S. 12, 17 n. 11 (1956), so may a statute discriminatory on its face be nondiscriminatory in its operation. There being no discriminatory effect achieved by the aspects of the Texas venue provisions calling for establishment of a cause of action, we have no difficulty in concluding that appellant’s equal protection challenge to Exception 27 must be rejected.

Beyond the superficial requirement of proof of a cause of action, the Texas venue statute, as noted, provides broader venue geographically for suits against foreign corporations than for suits against domestic corporations. Appellant, however, does not challenge this difference. See Tr. of Oral Arg. A-5. In any event, proof of cause of action aside, under Texas law, a domestic corporation may be sued in the plaintiff’s county of residence provided the corporation has an agency or representative in that county. The situation of appellant is precisely the same. It is undisputed that the appellant was sued in the plaintiff’s county of residence and that appellant had an agent in that county.

Affirmed.

Me. Chief Justice Burger,

with whom Mr. Justice Rehnquist joins, concurring in the judgment.

Like the Court, I am “unable to say that the treatment of foreign corporations effected by Exception 27 constitutes discrimination repugnant to the Equal Protection Clause.” I reach this conclusion, however, for somewhat different reasons from those the Court sets out.

A plaintiff may sue a foreign or domestic corporation in Texas without proving up a cause of action at a preliminary hearing, by a preponderance of the evidence or by making out a prima facie case. The only “discrimination” between the two types of corporations is that a foreign corporation may be sued without such proof wherever it has “an agency or representative.” Tex. Rev. Civ. Stat., Art. 1995, Exception 27 (1964). In my view, this does not amount to a denial of equal protection. “It is not . . . the mere tribunal into which a person is authorized to proceed by a State which determines whether the equal protection of the law has been afforded, but whether in the tribunals which the State has provided equal laws prevail.” Cincinnati Street R. Co. v. Snell, 193 U. S. 30, 37 (1904). To the extent that the statute treats foreign corporations differently, the difference has a rational basis.

“The degree of effective control which the state may exercise over domestic corporations as opposed to foreign corporations in general justifies the classification adopted by the state legislature. The state policy in this respect is not so arbitrary as to be unconstitutional. As regards foreign corporations submitting to a certain degree of control by qualifying to do business in the state, the justification is less evident, but nevertheless the state is not able to give its citizens the same assurance of effective redress for injuries committed by foreign corporations as it can in the case of domestic corporations.” Commercial Ins. Co. v. Adams, 366 S. W. 2d 801, 808-809 (Tex. Civ. App.), writ refused, 369 S. W. 2d 927 (Tex. 1963).

In Bain Peanut Co. v. Pinson, 282 U. S. 499, 501 (1931), this Court held: “The interpretation of constitutional principles must not be too literal. We must remember that the machinery of government would not work if it were not allowed a little play in its joints.” See also Power Mfg. Co. v. Saunders, 274 U. S. 490, 497 (1927) (Holmes, J., dissenting).

Appellee invoked the broad Texas provision for venue of suits against foreign corporations to sue in McLennan County, where appellant had an agent. Had appellant been a domestic corporation, the analogous venue provision would have permitted appellee to bring suit only in the corporation’s home county. In neither instance would appellee have been required to prove up his cause of action in order to show proper venue, and there is thus no difference in the treatment of the two types of corporations beyond the provision for broader venue against foreign corporations. In my view, this case raises no other issue.

It is true that, had appellant been a domestic corporation, appellee might also have sued in McLennan County, under a provision that permits suits against domestic corporations to be brought in the county where the plaintiff resided when the cause of action accrued, so long as the corporation has an agent there. Tex. Rev. Civ. St&t., Art. 1995, Exception 23 (1964). Had appellee used Exception 23 to sue this hypothetical domestic corporation outside its home county, the corporation could have required him to prove up his cause of action in order to show proper venue. The Court implies that this difference in treatment would create an equal protection problem were it not for the fact that the state courts do not really require proof of the cause of action by a preponderance of the evidence. Because a similarly situated domestic corporation could not have required ap-pellee to use Exception 23, I fail to see how appellant could have a “right” to the procedures that attend its use, or how appellant was denied anything that a domestic corporation would have had.

It seems to me, in short, that the Court has posed a synthetic problem by casting the issue as it does. To dispose of it, the Court proceeds to rely on a rather novel proposition: so long as counsel for a private litigant states, on oral argument in this Court, that, in spite of what the state courts say to the contrary, the State does not in most cases enforce a law discriminatory on its face, this Court will uphold the law. I cannot believe the Court would accept this proposition in any case that presented a serious issue of equal protection, and I prefer not to rely upon it in this case.

       Article 1995 provides in pertinent part:
      “No person who is an inhabitant of this State shall be sued out of the county in which he has his domicile except in the following cases:
      “23. Corporations and associations. — Suits against a private corporation, association, or joint stock company may be brought in the county in which its principal office is situated; or in the county in which the cause of action or part thereof arose; or in the county in which the plaintiff resided at the time the cause of action or part thereof arose, provided such corporation, association or company has an agency or representative in such county; or, if the corporation, association, or joint stock company had no agency or representative in the county in which the plaintiff resided at the time the cause of action or part thereof arose, then suit may be brought in the county nearest that in which plaintiff resided at said time in which the corporation, association or joint stock company then had an agency or representative. Suits against a railroad corporation, or against any assignee, trustee or receiver operating its railway, may also be brought in any county through or into which the railroad of such corporation extends or is operated. Suits against receivers of persons and corporations may also be brought as otherwise provided by law.
      “27. Foreign corporations. — Foreign corporations, private or public, joint stock companies or associations, not incorporated by the laws of this State, and doing business within this State, may be sued in any county where the cause of action or a part thereof accrued, or in any county where such company may have an agency or representative, or in the county in which the principal office of such company may be situated; or, when the defendant corporation has no agent or representative in this State, then in the county where the plaintiffs or either of them, reside.”

        Commercial Ins. Co. v. Adams was a per curiam affirmance of a holding of the Houston Court of Civil Appeals, 366 S. W. 2d 801 (1963), that Exception 27 is not void and unconstitutional under the Equal Protection Clause. In rejecting the contention that the difference in treatment of foreign corporations under Exception 27 from that of domestic corporations under Exception 23 violated equal protection, the Court of Civil Appeals stated:
      “There is no contention that the same and equal laws are not applicable and administered in all counties of Texas. Subdivision 27 applies to all foreign corporations. It is a matter of common knowledge that many foreign corporations do business in this state without taking advantage of the laws of this state authorizing them to do business in Texas and subjecting them to regulation. It would be difficult, if not impossible, for a plaintiff to ascertain the principal office of a foreign corporation not authorized to do business in this state. A foreign corporation qualified to do business in this state may designate as its principal office a county remote from the population centers of the state, in which it conducts little or no business since its principal office, in fact, ordinarily will be maintained in the state of incorporation. A domestic corporation would be likely to find such a procedure uneconomical. Competitive factors probably would dictate that its principal office be located where it intends to conduct its business. Thus the foreign corporation is favored over the domestic concern when it is permitted to choose any city as its principal place of business.
      “There is little doubt that the difficulty of securing service on foreign corporations was a factor inducing the legislature to provide a wide venue for actions against them. . . .
      “The degree of effective control which the state may exercise over domestic corporations as opposed to foreign corporations in general justifies the classification adopted by the state legislature. The state policy in this respect is not so arbitrary as to be unconstitutional. As regards foreign corporations submitting to a certain degree of control by qualifying to do business in the state, the justification is less evident, but nevertheless the state is not able to give its citizens the same assurance of effective redress for injuries committed by foreign corporations as it can in the case of domestic corporations. . . .
      “It could well be that the legislature had in mind spreading litigation involving foreign corporations among the various courts of the state in order to avoid the possibility of increasing the congested condition of the dockets of the metropolitan courts. . . . The burden of proving unconstitutionality of this statute rests on appellant more heavily in view of the fact that the act attacked was undoubtedly constitutional when enacted and the question of its legality at this time arises, not by reason of a change in its provisions, but by reason of the enactment of a statute amending Section 23, and not because discriminatory burdens have been placed on foreign corporations, but because the same burden has been removed from domestic corporations.” 366 S. W. 2d, at 808-809.

       Appellant has invoked this Court’s jurisdiction under 28 U. S. C. § 1257 (2), which requires that the judgment for which review here is sought be final. For the reasons stated in Mercantile Nat. Bank v. Langdeau, 371 U. S. 555, 558 (1963), the judgment presently before the Court is final for purposes of § 1257 (2).

       Brief for Appellant 17-18. Texas Rule Civ. Proc. 87 provides that where a jury trial is demanded on a venue issue, “the court, in its discretion, may require the cause to be tried on its merits at the same time.” Despite the absence of any limitation of this provision to suits against domestic corporations, appellant’s argument implies that the provision is inapplicable to suits against foreign corporations, thereby denying them opportunity for an early trial on the merits. We have no occasion, however, to address the question whether, if applicable also to suits against foreign corporations, appellant could have eliminated this ground of their equal protection complaint simply by demanding a jury trial. No jury trial was demanded, and therefore we decide the equal protection issue in the context of the bench trial that occurred.

       This was disclosed by appellee’s counsel at oral argument:
      “[T]echnically, legally, according to decisions, it is preponderance of the evidence as a matter of actual truth and fact and then, in factual analysis, it was simply a matter of prima facie proof.
      “Actually, the way the practice goes, a man makes out a prima facie case. He doesn’t show anything other than a prima facie case. The trial judge — I have never known of one to cite it just on weighing the evidence and actual facts. If he makes out a prima facie case, the plea of privilege is overruled.
      “That was the law for many, many years in the State of Texas and then they changed it to preponderance of the evidence and of course, trial courts being jealous of their own jurisdiction, your Honor, if a man files a case in this Court, if he shows that there was a collision and his client says the light was green for him, the other— the defendant takes the stand, which they never do. The defendant never puts any evidence on a plea of privilege.” Tr. of Oral Arg. 23.
      Appellant’s counsel appeared tacitly to concede that this was the case:
      “QUESTION: Normally, what is it, sort of a prima facie case and just hears the plaintiff?
      “MR. WESTBROOK: No, sir, it has to go beyond that. In our trials court, he has to prove it by the preponderance of the evidence but of course, if a judge is the finder of facts in this kind of preponderance business, it is not likely to be upset that it was the preponderance of the evidence.” Id., at 10.
      Where a jury trial is demanded on a venue issue, however, the proceedings are not truncated, for then, under Tex. Rule Civ. Proc. 87, trial is usually also had on the merits. Tr. of Oral Arg. 22. But in that event, venue proceedings are effectively waived and the domestic defendant enjoys no advantage over the foreign defendant by virtue of any sort of opportunity to preview the plaintiff’s case.

       Our conclusion makes unnecessary consideration of appellant’s argument that Power Mfg. Co. v. Saunders, 274 U. S. 490 (1927), requires invalidation of Exception 27. Though more recent decisions raise the question whether Saunders continues to be good law, Allied Stores of Ohio v. Bowers, 358 U. S. 522 (1959); Metropolitan Cas. Ins. Co. v. Brownell, 294 U. S. 580 (1935); Bain Peanut Co. v. Pinson, 282 U. S. 499 (1931), as appellant argues, the Court in Saunders did conclude that the venue statute involved there treated foreign corporations without reasonable basis and arbitrarily. That statute allowed a suit for personal injuries to be brought against a foreign corporation in any county, without regard to whether the corporation maintained an agent there, whereas actions of the same character, if against a domestic corporation, had to be brought in a county where it had a place of business or in which its chief officer resided.


author: Mr. Justice Brennan Mr. Justice Blackmun,

text:
    NORTHERN CHEYENNE TRIBE v. HOLLOWBREAST et al.
    No. 75-145.
    Argued March 29, 1976
    Decided May 19, 1976

      BRENNAN, J., delivered the opinion for a unanimous Court. Blackmun, J., filed a concurring opinion, post, p. 660.

      Steven H. Chestnut argued the cause and filed briefs for petitioner.

      Lewis E. Brueggemann argued the cause and filed a brief for the respondent class of Northern Cheyenne Indians. Steven L. Bunch argued the cause pro hac vice for respondents Williamson et al., and with him on the brief was Neil Haight.

   Mr. Justice Brennan

delivered the opinion of the Court.

The question to be decided is whether the Northern Cheyenne Allotment Act, Act of June 3, 1926, 44 Stat. 690, gave the allottees of surface lands vested rights in the mineral deposits underlying those lands. The District Court for the District of Montana held that the Act did not grant the allottees vested rights in the mineral deposits. 349 F. Supp. 1302 (1972). The Court of Appeals for the Ninth Circuit reversed. 505 F. 2d 268 (1974). We granted certiorari. 423 U. S. 891 (1975). We agree with the District Court and reverse.

I

The 1926 Act statutorily established the Northern Cheyenne Reservation pursuant to the federal policy expressed in the General Allotment Act of 1887, 24 Stat. 388, and provided for the allotment of tracts of land to individual tribal members. Section 1 of the Act declared the lands constituting the reservation “to be the property of [the Northern Cheyenne] Indians, subject to such control and management of said property as the Congress of the United States may direct.” Section 2 set up a procedure for allotment of agricultural and grazing lands. Section 3, 44 Stat. 691, upon which the question for decision in this case turns, reads as follows:

“That the timber, coal or other minerals, including oil, gas, and other natural deposits, on said reservation are hereby reserved for the benefit of the tribe and may be leased with the consent of the Indian council under such rules and regulations as the Secretary of the Interior may prescribq: Provided, That at the expiration of fifty years from the date of the approval of this Act the coal or other minerals, including oil, gas, and other natural deposits, of said allotments shall become the property of the respective allottees or their heirs: Provided further, That the unallotted lands of said tribe of Indians shall be held in common, subject to the control and management thereof as Congress may deem expedient for the benefit of said Indians.”

On its face, § 3 provides that title to the mineral deposits would pass to the allottees, or their heirs, 50 years after approval of the Act, or in 1976. But the phrasing might also be read to imply a reserved power in Congress to terminate the allottees’ interest before that date. Thus, the critical question is whether Congress could, as it purports to have done in 1968, terminate the grant without rendering the United States constitutionally liable to pay the allottees just compensation.

A supervening event of particular significance was the considerable increase in value of coal reserves under the allotted lands that occurred in the 1960’s due to increasing energy demand and the concomitant need for new sources of energy. Until this occurred, the reservation of the deposits until 1976 for the benefit of the Tribe had not significantly benefited it, because mining of most of the coal was not economically feasible. There was also substantial concern that, because one-third of the allottees did not live on the reservation, if control of strip mining passed in 1976 to the individual allottees, serious adverse consequences might be suffered by the Indians living on the reservation. In addition, Congress believed that injustice might result if the benefits to be realized by individual Indians depended upon whether coal was found under particular allotted lands. S. Rep. No. 1145, 90th Cong., 2d Sess., 2 (1968); H. R. Rep. No. 1292, 90th Cong., 2d Sess., 2 (1968). These considerations led Congress in 1968 to terminate the grant to allottees and to reserve the mineral rights “in perpetuity for the benefit of the Tribe.” Act of July 24, 1968, Pub. L. 90-424, 82 Stat. 424. The termination was, however, expressly conditioned upon a prior judicial determination that the allottees had not been granted vested rights to the mineral deposits by the 1926 Act. Congress so conditioned the termination to avoid the possibility of a successful claim for damages against the United States by the allottees under the Just Compensation Clause of the Fifth Amendment. The 1968 amendment authorized the Tribe to commence an action against the allottees in the District Court for Montana “to determine whether under [the 1926 Act] the allottees, their heirs or devisees, have received a vested property right in the minerals which is protected by the fifth amendment,” and provided that the reservation of the minerals in perpetuity for the benefit of the Tribe “shall cease to have any force or effect” if the court determines that “the allottees, their heirs or devisees, have a vested interest in the minerals which is protected by the fifth amendment.”

II

Both the Tribe and the allottees argue that the plain meaning of § 3 of the 1926 Act, providing that the mineral deposits “shall become the property of the respective allottees” 50 years after the effective date of the Act, compels a declaratory judgment in their favor. The Tribe argues that this provision can only be read to grant an expectancy, while the allottees maintain that it unequivocally grants a vested future interest. Both interpretations are consistent with the wording of the Act, and we therefore must determine the intent of Congress by looking to the legislative history against the background of principles governing congressional power to alter allotment plans.

The District Court agreed with the Tribe, reading “unallotted lands” in § 3 as including the mineral deposits, since the Act expressly severed the mineral deposits from the surface of the allotted lands and subjected unallotted lands “to the control and management thereof as Congress may deem expedient for the benefit of said Indians.” 349 F. Supp., at 1309-1310. The Court of Appeals rejected the District Court’s interpretation of “unallotted lands” as including the severed mineral deposits, rendering them subject to congressional control and management; rather, it read § 3 to be an “unconditional, noncontingent grant of [the mineral] deposits to the allottees,” and noted the absence of any “clear expression of Congress’s retained power.” 505 F. 2d, at 271-272.

The Court of Appeals erred in its basic approach to construction of the 1926 Act. Its view was that Congress must be regarded as having relinquished its control over Indian lands in the absence of an express statement of its intent to retain the power. Just the opposite is true. The Court has consistently recognized the wide-ranging congressional power to alter allotment plans until those plans are executed. E. g., Chase v. United States, 256 U. S. 1, 7 (1921); United States v. Rowell, 243 U. S. 464, 468 (1917); Sizemore v. Brady, 235 U. S. 441, 449-450 (1914); Gritts v. Fisher, 224 U. S. 640, 648 (1912); Stephens v. Cherokee Nation, 174 U. S. 445, 484 (1899). This principle has specifically been applied to uphold congressional imposition on allottees of restraints against alienation of their interests or expansion of the class of beneficiaries under an allotment Act. E. g., United States v. Jim, 409 U. S. 80 (1972); Brader v. James, 246 U. S. 88 (1918). The extensiveness of this congressional authority, as well as “Congress’ unique obligation toward the Indians,” Morton v. Mancari, 417 U. S. 535, 555 (1974), underlies the judicially fashioned canon of construction that these statutes are to be read to reserve Congress’ powers in the absence of a clear expression by Congress to the contrary. Chippewa Indians v. United States, 307 U. S. 1, 5 (1939).

Read in this light, the statutory history of the Northern Cheyenne Reservation allotment supports the District Court’s reading of the Act. Although prior to 1925 allotment Acts had been enacted for nearly all Indian reservations, none yet applied to the Northern Cheyenne Reservation. The Tribe in 1925 petitioned Senator Walsh of Montana to have the reservation allotted. The petition read in pertinent part:

“We, the undersigned members of the Northern Cheyenne Indian Tribe, of the State of Montana, do hereby humbly beseech you to do all in your power to have a Bill introduced and passed in Congress, to have an allotment of not less than 320 acres of tillable farm land made to each and every member of the Northern Cheyenne Indians.
“To reserve all mineral, timber, and coal lands for the benefit of the Northern Cheyenne Indian Tribe, said tribe to have absolute control of same,”

Thus, the Tribe from the outset sought allotment provisions that would retain, for the benefit of the entire Tribe, the rights to the coal and other minerals underlying the reservation.

Shortly thereafter Hubert Work, Secretary of the Interior, sent Representative Leavitt of Montana, Chairman of the House Committee on Indian Affairs, a proposed draft of an allotment bill for the Northern Cheyenne Reservation. An accompanying letter reiterated the Tribe's desire to give individual Indians agricultural and grazing lands. Secretary Work also suggested that a survey of the land be made and further proposed that “[i]n the event any of the land listed for allotting is found to contain coal or other minerals, it is contemplated to reserve all such minerals for the tribe and to allot the surface only.” H. R. Rep. No. 383, 69th Cong., 1st Sess., 2 (1926).

The proposed bill (H. R. 9658) introduced in the House two days later by Representative Leavitt followed this suggestion. Section 2 of this bill provided for a geological survey and required that

“if any of the land shall be found to contain coal or other minerals, only the surface thereof may be allotted, and all minerals on said lands are hereby reserved for the benefit of the tribe.”

This language is clear evidence of an intent to sever the surface estate from the interest in the minerals, at least wherever minerals are found to exist. But nothing appears in the legislative history explaining the object of the proviso:

“Provided, That at the expiration of fifty years from the date of the approval of this Act, the coal or other mineral deposits of said allotments shall become the property of the respective allottees or their heirs or assigns.”

We are persuaded for several reasons that it was not intended to grant the allottees a vested future interest in the mineral deposits and thereby relinquish congressional “control and management thereof as Congress may deem expedient for the benefit of said Indians.”

The proposed bill plainly reveals a purpose to sever the mineral rights from the surface estate; “only the surface . . . may be allotted” under the bill. In fact, the limited object of the bill, as stated in its title, was “to provide for allotting in severalty agricultural lands” within the reservation. This limited object carries out Secretary Work’s suggestion, and honors the Tribe’s request, to limit the allotment to the surface lands to enable the Tribe to enjoy the full benefit of the mineral rights. Nothing in the legislative history shows any congressional purpose not to follow the Secretary’s proposal; every indication is to the contrary. Only the surface lands were to be subject to allotment. The House Committee’s amendments to the bill make this purpose even clearer; the Committee retained the language that limited the allotment to surface lands but omitted the language imposing this limitation only in the event that minerals were found on the land. H. R. Rep. No., 383, supra, at 1. The House passed the bill as amended by the Committee. 67 Cong. Rec. 6522 (1926).

The Senate Committee reported out the House bill with several amendments, two of which have significance in support of our conclusion. S. Rep. No. 638, 69th Cong., 1st Sess. (1926). A new opening section, eventually § 1 of the Act, see supra, at 651, confirmed the Tribe’s title to the reservation lands and expressly retained Congress’ authority to manage those lands. The Committee also rewrote § 2 of the House bill and substituted the following as § 3 of its bill:

“That the timber, coal or other minerals, including oil, gas, and other natural deposits on said reservation, are hereby reserved for the benefit of the tribe: Provided, That at the expiration of fifty years from the date of the approval of this act the coal or other minerals, including oil, gas, and other natural deposits of said allotments shall become the property of the respective allottees or their heirs: Provided further, That the unallotted lands of said tribe of Indians shall be held in common, subject to the control and management thereof as Congress may deem expedient for the benefit of said Indians.”

The changes from the House bill indicate no difference in purpose. The coal and other mineral rights were still “reserved for the benefit of the tribe,” with no suggestion from the Senate Committee that it attached any more import to the 50-year provision than had the House. Most significantly, and a critical fact supporting the District Court’s construction of § 3, the Committee added an express reservation of congressional authority over “unallotted lands.” Since the House bill clearly allotted only the surface lands, we are compelled to conclude that when both Houses adopted the-bill as amended by the Senate, “unallotted lands” in § 3 included the mineral deposits. See British-American Oil Co. v. Board of Equalization, 299 U. S. 159, 164-165 (1936).

The conclusion we reach is also supported by the wording of the allotment trust patents. The patents “reserved for the benefit of the Northern Cheyenne Indians, all the coal or other minerals, including oil, gas, and all natural deposits in said land,” without any reference to the allottees’ future interest. Thus, the agency charged with executing the Act construed it as not granting the allottees any vested rights. “While not conclusive, this construction given to the [allotment] act in the course of its actual execution is entitled to great respect.” La Roque v. United States, 239 U. S. 62, 64 (1915). See United States v. Jackson, 280 U. S. 183, 193 (1930); Assiniboine & Sioux Tribes v. Nordwick, 378 F. 2d 426, 432 (CA9 1967), cert. denied, 389 U. S. 1046 (1968).

Reversed.

Mr. Justice Blackmun,

concurring.

For me, and obviously for the Congress, this case is much closer and the legislative history much less clear than the Court’s opinion makes them out to be. There are factors that distinctly favor the respondents. For one example, in other comparable statutes, there are specific reservations (e. g., “unless otherwise provided by Congress”) of the kind of congressional power that the Court finds implicit here. Our National Legislature obviously knew how expressly to reserve the power and yet did not employ the “magic words” here. On balance, however, the strength of the case rests with the petitioner. It is of some importance, I feel, that the minerals could have been leased and depleted during the 50-year period. This possibility surely diminishes the reliance interest of any allottee and his successors. I therefore join the Court’s opinion and its judgment.

       The objects of this policy were to end tribal land ownership and to substitute private ownership, on the view that private ownership by individual Indians would better advance their assimilation as self-supporting members of our society and relieve the Federal Government of the need to continue supervision of Indian affairs. See Comment, Tribal Self-Government and the Indian Reorganization Act of 1934, 70 Mich. L. Rev. 955, 959 (1972).

       In 1961 Congress amended the Act to add the allottees' devisees as beneficiaries. Act of Sept. 22, 1961, Pub. L. 87-287, 75 Stat. 586. At the same time Congress amended § 3 to permit the Tribe to lease mineral rights beyond 1976 and provided that any interest that might be taken by the allottees would be “subject to any outstanding leases.” Congress also prohibited the allottees from conveying their future interest and voided any conveyances entered into prior to 1961. Previously § 3 had been amended to grant the allottees the timber on the allotted lands. Act of July 24, 1947, e. 314, 61 Stat. 418.

       Petitioner informs us that its "conservative” estimate of the value of the coal reserves is $2 billion, based on a recent offer for coal under the Crow Reservation, which adjoins the Northern Cheyenne Reservation.

       The full text of § 3, as amended, is:
      “(a) The coal or other minerals, including oil, gas, and other natural deposits, on said reservation are hereby reserved in perpetuity for the benefit of the tribe and may be leased with the consent of the Indian council for mining purposes in accordance with the provisions of the Act of May 11, 1938 (52 Stat. 347 ; 25 U. S. C. [§] 396a-f), under such rules, regulations, and conditions as the Secretary of the Interior may prescribe.
      “(b) The unallotted lands of said tribe of Indians shall be held in common, subject to the control and management thereof as Congress may deem expedient for the benefit of said Indians.” Congress rejected the possibility of extending the Tribe’s interest for a term of years, rather than in perpetuity, on the recommendation of the Department of the Interior. The Department took the view that an extension for a number of years — the original bill proposed 42 years — would create difficult and costly administrative problems in determining the heirs of the allottees; Congress accordingly extended the interest in perpetuity. H. R. Rep. No. 1292, 90th Cong., 2d Sess., 2 (1968); S. Rep. No. 1145, 90th Cong., 2d Sess., 2 (1968).

       Section 2 of the amendment, 82 Stat. 425, provides as follows:
      “The Northern Cheyenne Tribe is authorized to commence in the United States District Court for the District of Montana an action against the allottees who received allotments pursuant to the Act of June 3, 1926, as amended, their heirs or devisees, either individually or as a class, to determine whether under the provisions of the Act of June 3, 1926, as amended, the allottees, their heirs or devisees, have received a vested property right in the minerals which is protected by the fifth amendment. The United States District Court for the District of Montana shall have jurisdiction to hear and determine the action and an appeal from its judgment may be taken as provided by law. If the court determines that the allottees, their heirs or devisees, have a vested interest in the minerals which is protected by the fifth amendment, or if the tribe does not commence an action as here authorized within two years from the date of this Act, the first section of this Act shall cease to have any force or effect, and the provisions of section 3 of the Act of June 3, 1926, as amended by the Acts of July 24, 1947, and September 21 [sic], 1961, shall thereupon be carried out as fully as if section 3 had not been amended by this Act.”
      The Tribe sued 10 allottees, individually and as representatives of the class of allottees, heirs, and devisees, and sought a declaratory judgment that the class had no vested rights and that the Tribe owned the coal and other minerals in perpetuity. We shall refer to the class as “allottees.”

       Respondents Williamson and Bowen also argue that the unusual review provision accompanying the 1968 amendment evidences “a formidable Congressional apprehension” concerning the constitutionality of extending the Tribe's interest in perpetuity. On the contrary, Congress merely recognized that a plausible argument might be made on behalf of the allottees and desired its merit to be judicially determined. The House Committee, however, expressly stated its belief that the allottees had only an expectancy. H. R. Rep. No. 1292, supra, at 3. Moreover, the concerns assertedly felt by Congress in 1968 undoubtedly were not present in 1961; in that year Congress gave the Tribe authority to encumber the allottees’ interest by signing long-term leases, expanded the class of beneficiaries to include devisees, and prohibited the allottees from conveying their future interests. See n. 2, supra.

       The court also relied on the canon that “statutes passed for the benefit of the Indians are to be liberally construed and all doubts are to be resolved in their favor.” 505 F. 2d, at 272. But this eminently sound and vital canon has no application here; the contesting parties are an Indian tribe and a class of individuals consisting primarily of tribal members.

       Documents on deposit in the National Archives show that Representative Leavitt’s proposed bill was identical to the Secretary’s draft, and the 50-year provision is thus even mo-re clearly not intended to grant vested rights. Secretary Work’s summary of the draft bill stated the intention “to reserve all . . . minerals for the tribe” and did not mention the allottees’ future interest.

       The bill as reported by the Committee, with the deleted language in brackets, reads:
      “[and if any of the land shall be found to contain coal or other minerals,] only the surface of any lands in this reservation may be allotted, and all minerals on said lauds are hereby reserved for the benefit of the tribe . . . .”
      The balance of the provision was unchanged. See supra, at 657.

         The bill was also amended before final passage fo permit the Tribe to lease the reserved mineral estates, 67 Cong. Rec. 9735 (1926), and to require that all income from the minerals be held by the United States for the benefit of the Tribe, id., at 9962.

       A reasonable explanation for the provision that the mineral rights would become the property of the allottees after 50 years is that it may have been thought to further the policy of assimilation underlying the allotment policy, see n. 1, supra; the provision is consistent with a desire to give the mineral rights to the allottees after they became assimilated. On the other hand, the vesting of an irrevocable future interest in 1926 would not be wholly consistent with that policy, particularly since the policy as reflected in allotment statutes was already losing its appeal by 1926, and Congress might more logically be expected to have been reluctant to surrender its power to modify the Act.