author: Mr. Justice Blackmun Mr. Justice Douglas,

text:
    MISSISSIPPI v. ARKANSAS
    No. 48,
    Orig.
    Argued December 5, 1973
    Decided February 26, 1974
    Blackmun, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Stewart, White, Marshall, Powell, and Rehnquist, JJ., joined. Douglas, J., filed a dissenting opinion, post, p. 294.

      Mitchell E. Ward argued the cause for plaintiff. With him on the brief were Albioun F. Summer, Attorney General of Mississippi, and Martin R. McLendon, Assistant Attorney General.

      William H. Drew argued the cause for defendant. With him on the brief was Jim Guy Tucker, Attorney General of Arkansas.
   Mr. Justice Blackmun

delivered the opinion of the Court.

Mississippi, prompted by the pendency of private title litigation in the Arkansas courts, instituted this original action against Arkansas in November 1970. The bill of complaint, which accompanied the motion for leave to file, prayed that the boundary line between the two States, in the old bed of the Mississippi River from the upstream end to the downstream end of Tarpley Cut-off, that is, the Spanish Moss Bend-Luna Bar-Carter Point area where Arkansas’ Chicot County and Mississippi’s Washington County adjoin, be fixed and determined.

The river was originally established as the boundary between the States by their respective Acts of Admission. Mississippi’s Act, 3 Stat. 348 (1817), described the line as “up” the river. Arkansas’ Act, 5 Stat. 50 (1836), described the line as “up the middle of the main channel of the said river.” See, also, Arkansas’ Constitution, Art. 1 (1874). Over 50 years ago the question whether there was any difference in the meaning' of these two descriptions was resolved and the boundary was determined to be “the middle of the main navigable channel, and not along the line equidistant between the banks.” Arkansas v. Mississippi, 250 U. S. 39, 43 (1919). That decision was in conformity with the rule of the thalweg enunciated in Iowa v. Illinois,, 147 U. S. 1, 7-8, 13 (1893), and followed, in the absence of special circumstances, in many subsequent cases. See, for example, Minnesota v. Wisconsin, 252 U. S. 273, 281-282 (1920); New Jersey v. Delaware, 291 U. S. 361, 379-380 (1934); Arkansas v. Tennessee, 310 U. S. 563, 571 (1940).

Arkansas responded to Mississippi’s motion and moved that leave to file be denied and that the complaint be dismissed. The motion for leave to file, however, was granted. 400 U. S. 1019 (1971). Thereafter, the Honorable Clifford O’Sullivan was appointed Special Master. 402 U. S. 926 (1971). The Master’s report eventually issued and was ordered filed. 411 U. S. 913 (1973). Arkansas’ exceptions to the report and Mississippi’s response to those exceptions were forthcoming in due course and the case has been argued to this Court.

Prior to 1935 Spanish Moss Bend was on the thalweg, or primary channel, of the Mississippi River. It has not been the thalweg, however, since the Tarpley Cut-off was established about five miles to the east in 1935 by the United States Army Corps of Engineers. The present controversy focuses on what is known as Luna Bar on the eastern bank of the old river at Spanish Moss Bend. The issue simply is whether Luna Bar came into being by gradual migration of the river westward, or, instead, by some avulsive process, also to the westward. Depending on the resolution of this factual issue, legal consequences ensue in line with established principles conceded by the two States to be the law relating to riparian accretion and avulsion. Nebraska v. Iowa, 143 U. S. 359 (1892); Missouri v. Nebraska, 196 U. S. 23 (1904); Bonelli Cattle Co. v. Arizona, 414 U. S. 313, 325-327 (1973). These principles need no reiteration here. It suffices to say that if Luna Bar was formed by accretion, this litigation is to be resolved in favor of Mississippi, and, contrarily, if Luna Bar resulted from an avulsion, the suit is to be resolved in favor of Arkansas.

Upon our independent review of the record, we find ourselves in complete agreement and accord with the findings of fact made by the Special Master. Report 34. We therefore affirm those findings, overrule Arkansas’ exceptions to the Master’s report, confirm that report, and in general accept the Master’s recommendations for a decree.

We deem it unnecessary to outline at length the evidence adduced, or to reproduce here the detailed analysis of that evidence made by the Special Master. We note only that the dissent would regard the case as close because of three factors: (1) certain testimony as to ancient trees on Luna Bar indicated by the presence of three stumps that could not have lived and died there in the last 100 years, (2) some testimony as to soil on the bar “not compatible with the soil that would result from accretion,” post, at 298, and (3) the bar’s “hard core . . . elevation,” post, at 299-300, that coincides with the elevation “on the adjacent Arkansas bank.” These factors, in our view, would be pertinent except that they reflect only the approach and testimony of Arkansas’ witnesses and overlook pertinent and persuasive testimony to the opposite effect from expert witnesses for Mississippi. The latter are the witnesses that the Special Master credited, as do we, in the evaluation of the conflicting testimony.

Arkansas conceded that Mississippi made out a prima facie case of accretion. Tr. of Oral Arg. 19. In addition, the Master was impressed with the total absence of any known historical reference to an avulsion in this area that changed the course of the river by the necessary half mile. And the dissent acknowledges, post, at 295, as to how “Mississippi made its case,” and concedes that the testimony “gives force to the argument that accretion formed Luna Bar,” that there was testimony that in the Mississippi River “avulsion would shorten the course of the river, while here the course was lengthened,” and that Mississippi's experts knew of no instance “where avulsion had worked the way Arkansas claims.”

So far as the ancient tree stumps are concerned, Mississippi presented evidence from forestry experts that the forest on Luna Bar was one predominantly of pioneer species with the expected small accompanying, scattered areas of secondary and climax trees, and with no tree more than 37 years old. This is consistent with the first appearance of growth upon Luna Bar depicted in early Mississippi River Commission charts showing the bar to be barren and without vegetation. Report 10. Mississippi's position as to the three particular stumps was that they had been washed in by floodwaters in preceding years; that one had moss on its roots, a condition incompatible with growth in place; and that, at the point where another allegedly was found in 1972, the elevation of the bar was at least 10 feet above what it had been 90 years earlier. Thus the stump necessarily should have been deep in the undersoil of the bar and not on its surface at the time of its removal. Report 11.

The soil composition is purely a matter of conflicting testimony and we are persuaded by Mississippi's evidence. Deep borings, of course, would be below the riverbed, and would be expected to be consistent throughout the area on both sides of the river. And, as noted above, charts of 1882 and 1894, admitted into evidence, show Luna Bar as a dry sandbar with no vegetation.

The claim of similar elevations, too, encounters strong and convincing opposing authority. Dr. Charles R. Kolb, a highly qualified expert for Mississippi, testified that his study disclosed that the Arkansas bank, from the first comparative recordings until fairly recent times, was about 12 feet higher than Luna Bar. Report 15, 19. R. 354-357. And there is an absence of levee formations on Luna Bar, as contrasted with the presence of pre-1860 levees on the Arkansas bank.

We agree with the Special Master’s evaluation of the evidence and conclude, as he did, that Arkansas did not sustain its burden of rebutting Mississippi’s conceded prima facie case, a burden the Arkansas court has described as “considerable.” Pannell v. Earls, 252 Ark. 385, 388, 483 S. W. 2d 440, 442 (1972).

Upon our own consideration and our independent review of the entire record, of the report filed by the Special Master, of the exceptions filed thereto, and of the argument thereon, a decree is accordingly entered.

It is so ordered.

[For decree adopted and entered by the Court, see post, p. 302.]

Mr. Justice Douglas,

dissenting.

Luna Bar is today an island in the Mississippi River. Arkansas on the west claims it is hers because the river as a result of an avulsion moved west. Mississippi claims it is hers because Luna Bar was created as a result of slow gradual accretion. The Special Master found for Mississippi and the case is here on exceptions to his Report.

No one has a historical recorded account of what happened. Mississippi made its case by use of experts who testified as to how the Mississippi River usually performs. They testified that the river at low water washes the concave side of a turn (this being the side that marks Luna Bar) but that during high water it scours the convex side (that being Arkansas). That testimony gives force to the argument that accretion formed Luna Bar, washing heavily Arkansas land to form the island. Favoring Mississippi was other testimony that at least in the Mississippi River avulsion would shorten the course of the river, while here the course was lengthened. Never did the experts know of an instance where avulsion had worked the way Arkansas claims.

Opposed to these highly qualified experts were lay witnesses who knew Luna Bar. They had located great trees that once grew there, the age of the trees going back before 1800. Luna Bar therefore was not recently created nor was it created within the last 100 years. It had been there a long, long time. Moreover, the soil matched Arkansas’ soil and the height of the land on Luna Bar was comparable to Arkansas’ elevation. The Arkansas case was further bolstered by the theory that in the 1870’s the avulsive action took place when the river returned to its old channel.

The Special Master stated in his report:

“I am aware that as Special Master it is not my function to render a decision. My duty is to make a report containing such review of the evidence as I consider justifies my findings of fact. I do not consider that to make the findings I do, it is necessary to totally destroy the validity of Arkansas’ contentions. The burden of persuasion was upon Arkansas. Initially Arkansas conceded that Mississippi had met its initial burden, aided as it was by the presumption that the change in the thalweg of the river was the product of accretion. The quite special character of the reasoning of Arkansas’ witnesses leaves me unpersuaded that it has met its burden of proof. I make clear also that I would come to this conclusion even if the burden of proof was not on Arkansas, but was on plaintiff Mississippi.” Report of Special Master 33.

The case is close and if we were governed by the rule governing district court findings when an appeal is taken I would agree that the Special Master’s findings are not “clearly erroneous.” Heretofore the Court has not considered itself limited in its review of its Masters by the “clearly erroneous” test.- We said in United States v. Utah, 283 U. S. 64, 89, that the “findings of the Master . . . are justified by the evidence”; and in Kansas v. Missouri, 322 U. S. 213, 232, that the Master’s judgment “accords with the conclusions we make from our own independent examination of the record.” And see United States v. Oregon, 295 U. S. 1, 29. It has at times been argued that original jurisdiction should not be taken, because of the waste of judicial time by this Court: “In an original suit, even when the case is first referred to a master, this Court has the duty of making an independent examination of the evidence, a time-consuming process which seriously interferes with the discharge of our ever-increasing appellate duties.” Georgia v. Pennsylvania R. Co., 324 U. S. 439, 470 (Stone, C. J., dissenting). The majority opinion did not dispute that claim but gave special reasons why original jurisdiction was necessary in that case. Id., at 465-466. The findings of the Special Master are of course entitled to respect and their weight will be increased to the extent that credibility of witnesses is involved, as he saw them and heard them, while we have only a cold record. Credibility, however, seems to play no part here. The record consists of maps and of testimony of witnesses. Those testifying for Mississippi qualified as eminent experts. Those testifying for Arkansas were in part experts and in part countrymen who for years knew Luna Bar, frequented it, and studied it. The experts of Mississippi state a plausible explanation that bolsters the theory of accretion. But the countrymen with their physical evidence convince me that the Mississippi River acted in an unprecedented way, found an old channel and in one convulsive operation invaded Arkansas, leaving Luna Bar an island carved out of Arkansas.

There is evidence taken from borings that the soil of the island is not compatible with the soil that would result from accretion. An expert, Dr. Clarence O. Durham, head of the Geoscience Department of Louisiana State University spent two days on the island. He concluded that prior to 1823, the date of the first Federal Land Office Survey, the river had flowed west of the island but that between 1823 and 1871 the channel at that point was not divided. He reached this conclusion from an 1872 map which showed an abrupt shift of the Arkansas western bank into an abandoned prehistoric channel of the river. The island is the hard base of an ancient clay plug that dates prior to 1823. The ancient cypress stumps on the Arkansas mainland and those on the west side of the island are compelling evidence that the island and the mainland were connected for some centuries. To say that the island was formed by accretion is to use magic to make the ancient cypress stumps on the island disappear. Those trees are of the climax species; and the experts all agree that where climax trees appear the land mass on which they grow is at least 150 years old. The trees found on the high ground of the island were black walnut and red mulberry. Those trees were there prior to 1800 which would be impossible if Luna Bar was the product of accretion in modern times. The hard core of the island has an elevation between 133.2 feet and 133.5 feet; and the elevation on the adjacent Arkansas bank is between 132.2 feet and 139 feet. Again there is a compelling inference that while accretion may have added some soil to the island, the high hard core of the island was once connected with the mainland and severed from it by some abrupt and violent action of the river.

       See Arkansas Land & Cattle Co. v. Anderson-Tully Co., 248 Ark. 495, 452 S. W. 2d 632 (1970), a 4-3 decision of the Supreme Court of Arkansas.

       Mississippi's Constitution of 1890, Art. 2, however, reads, “up the middle of the Mississippi river, or thread of the stream.”

       Other orders are reported at 402 U. S. 939 (1971) and at 403 U. S. 951 (1971).

       Although the precedent is not binding in this original action between the two States, it is not without interest to note that in private litigation Luna Bar has been determined to be in Mississippi. Anderson-Tully Co. v. Walls, 266 F. Supp. 804 (ND Miss. 1967). Another private suit involving the issue is the one mentioned above as pending in the Arkansas state courts. Arkansas Land & Cattle Co. v. Anderson-Tully Co., supra. Further proceedings in that litigation were stayed on February 16, 1971, by the Chancery Court of Chicot County, Arkansas, until final judgment in the present action. Special counsel for the respective States here were counsel for the private parties in the cited federal and state court cases.

       Fed. Rule Civ. Proc. 52 (a) provides that findings of fact made by district courts “shall not be set aside unless clearly erroneous.” It also provides that “[t]he findings of a master, to the extent that the court adopts them, shall be considered as the findings of the court.” Rule 53 (e) (2) provides that “[i]n an action to be tried without a jury the court shall accept the master’s findings of fact unless clearly erroneous.” But those Rules are applicable only to “the procedure in the United States district courts in all suits of a civil nature.” Rule 1.
      But we have never formulated such a rule when it comes to our review of reports submitted by Special Masters whom we have named in cases under our original jurisdiction. It seems inappropriate that we adopt such a rule in view of the delicacy and gravity of many of the issues in these contests between two sovereign States or between the United States and one or more of the States. The ultimate decision on the facts should rest with us, the sole tribunal to which the resolution of the issues in this type of case has been entrusted by Art. III.
      In Georgia v. Brailsford, 3 Dall. 1, the Court in a case under the head of its original jurisdiction impaneled a. jury. And that procedure, though soon abandoned, was followed in a few other cases: See 1 H. Carson, History of the United States Supreme Court 169 n. 1 (1902).
      In Rhode Island v. Massachusetts, 12 Pet. 657, 734, involving a boundary dispute, the Court said: “[W]e may ascertain facts with or without a jury, at our discretion, as the circuit courts, and all others do, in the ordinary course of equity” or alternately “a commission of boundary” may be awarded.
      In Pennsylvania v. Wheeling & Belmont Bridge Co., 9 How. 647, a commissioner was appointed to hold hearings and report to the Court, Pennsylvania having complained of the erection of a bridge across the Ohio River at Wheeling.
      While commissioners were appointed in the early years, the practice this century has been to use Special Masters.

       The Master found that Arkansas’ proof failed to justify a finding that there was an abandoned channel which the Mississippi found again in the 1870’s. The absence of independent evidence of such a channel is not surprising, in view of the quality of the maps made before the 1870’s. For example, the Master attaches as appendices to his report six maps of the area charted before the 1870’s. All of them trace the outline of the Mississippi for navigational purposes. But none are topographical maps which would show the existence of an ancient, dry, low-lying channel on the Arkansas mainland into which the Mississippi could divert. This, however, does not show that such a channel did not exist or refute the physical evidence which Arkansas has mustered. Just as Arkansas has not produced a pre-1870 map proving the prior existence of the ancient channel, Mississippi directs us to no map to prove that such a channel did not exist.

       The Master stated that the testimony about vegetation and the age of trees on the island was, "as far as I can tell, reasonably comparable” to that presented in two earlier cases concerning the origin of Luna Bar (Anderson-Tully Co. v. Walls, 266 F. Supp. 804; Arkansas Land & Cattle Co. v. Anderson-Tully Co., 248 Ark. 495, 452 S. W. 2d 632). The Master also stated: “It was the position of Mississippi that various stumps found on Luna Bar and Spanish Moss Bend had been brought there by flood waters. Its position in such regard was sustained by the courts heretofore considering the matter. I do likewise.”
      Neither of the earlier cases makes clear the exact extent of testimony admitted, or precisely how it corresponds with the testimony given before the Special Master in the instant case. Arkansas, however, notes that “evidence of the relic trees found on top of the island [was] not discovered at [the time of the earlier litigation], and this record is the only record of their existence.” Moreover, it is hardly true that the Arkansas court “sustained” Mississippi's position that the cypress stumps found in Spanish Moss Bend had been carried there by floodwaters. That court, remanding the case to the lower court for further proceedings, noted that the appearance of at least two of the stumps in photographs tended to lend support to testimony that they had grown in place. So did the designation of “cypress knees” and “cypress stumps” and trees along the Arkansas shore near the mainland on several early Mississippi River Commission charts. These designations indicated that there was evidence of cypress stumps many years before 1940, when it was contended that they had been floated downriver and left at Luna Bar. 248 Ark., at 502, 452 S. W. 2d, at 637, Finally, the opinion of the District Court in Anderson-Tully Co. v. Walls, supra, does not even mention the cypress stumps. Therefore, as to the ancient relic stumps found on top of the island and in Spanish Moss Bend, it would not seem that we are forced to overcome the decision of any previous court which has accepted Mississippi’s theory about their origin.
      On the other hand, Richard Proctor, who has lived in the area of Luna Bar for 91 years, testified that he had fished around cypress stumps in the river which had been there “as long as I been big enough to know.” Moreover, he testified that he found a mink in an old cistern on the Bar, the existence of which is quite inconsistent with the Point Bar migration theory.

       The fact that an early Mississippi River Commission hydro-graphic survey showed the elevation of Luna Bar to be somewhat lower than that of the land on the west bank of Spanish Moss Bend, the Arkansas side of the river, does not disprove Arkansas’ position that Luna Bar originated as a portion of the Arkansas mainland which was severed by avulsion. Reference to Appendix A of the Court’s decree, a topographic map prepared by the Army Corps of Engineers, shows the rolling nature of much of the land adjacent to the Mississippi River in the area of Luna Bar and indicates that a difference in elevation between two points would not be startling. Moreover, it appears that in 1874, between the time when Arkansas claims the avulsion occurred and the time the Mississippi River Commission conducted its survey, there was a flood in the Mississippi which would have washed at Luna Bar. See Arkansas Land & Cattle Co. v. Anderson-Tully Co., supra, at 506, 452 S. W. 2d, at 639.


source: Caselaw Access Project

license: Public Domain

text:
    MISSISSIPPI v. ARKANSAS
    No. 48,
    Orig.
    Decided February 26, 1974
    Decree entered February 26, 1974
   DECREE

It Is Ordered, Adjudged, and Decreed as Follows:

1. Luna Bar, depicted in Mississippi’s Exhibits 1 and 2, constituting, respectively, Appendix A and part of Appendix B to the Special Master’s report, and appended hereto and hereby made a part of this decree, came into existence by accretion to Carter Point and is, and was, a part of the State of Mississippi.

2. The boundary line between the State of Mississippi and the State of Arkansas in the areas between the upstream and the downstream ends of Tarpley Cut-off is as follows:

In the abandoned bed of the Mississippi River between the upstream end of the Tarpley Cut-off and the downstream end of Tarpley Cut-off, as defined and identified in Mississippi’s said Exhibit 2. The courses and distances of the above-described line are set out in said Exhibit 2.

3. The cost of this suit, including the expenses of the Special Master and the printing of his report, have been paid out of the fund made up of equal contributions by the State of Mississippi and the State of Arkansas and said fund has been sufficient to defray all said expenses to the date of the issuance of the report. Any costs and expenses that may be incurred beyond the amount so contributed by the respective litigants shall be borne by the State of Arkansas.


author: Per Curiam.

text:
    PATTERSON v. WARNER et al.
    No. 72-5830.
    Argued January 9, 1974
    Decided February 26, 1974

      George R. Higinbotham argued the cause for appellant. With him on the brief was Paul J. Kaufman.

      Phillip D. Gaujot, Assistant Attorney General of West Virginia, argued the cause for appellees pro hac vice. With him on the brief were Chauncey H. Browning, Jr., Attorney General, Cletus B. Hanley, Deputy Attorney General, and William D. Highland, Special Assistant Attorney General.
   Per Curiam.

We noted probable jurisdiction in this case, 411 U. S. 905 (1973), because it appeared to present a significant issue, under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, as to the validity of that provision of W. Va. Code Ann. § 50-15-2 (1966), requiring a double bond as a condition for an appeal from a judgment entered by a justice of the peace in a civil case. See Lindsey v. Normet, 405 U. S. 56, 74-79 (1972).

In November 1968 appellant Patterson purchased a used automobile from appellee Graham Motor Company under a deferred-purchase money contract. That portion of the price not paid at the time of purchase was evidenced by a negotiable promissory note. After taking delivery of the automobile but before completion of his payments, Patterson encountered mechanical difficulties with the car. Finding himself unable to obtain satisfaction from Graham, Patterson undertook to reject the purchase, pursuant to W. Va. Code Ann. § 46-2-602 (1966), and made no further payments on the note.

Graham then sued Patterson in appellee Warner’s justice of the peace court and, despite a number of defenses asserted by Patterson — breach of warranty, fraud, rightful repudiation, and others — obtained a judgment for $300 plus costs.

Patterson sought to appeal the case to a court of record. Bond was set at $600, double the amount of the judgment, as § 50-15-2 specified. Patterson was unable to find an individual surety and, being indigent, was also unable to raise the amount required by a commercial surety. As a result, the appeal was not perfected and the judgment adverse to him became final.

Prior to execution on the judgment, Patterson instituted this purported class action in the United States District Court for the Southern District of West Virginia against Justice of the Peace Warner and against Graham. He sought injunctive and declaratory relief. A three-judge court was convened and upheld the challenged West Virginia statute. It reasoned that the full hearing before the justice, with the opportunity to present a defense, accorded appellant due process, and that there was no requirement that the State provide appellate review. Turning to equal protection, the court held that a State may properly take steps to insure that an appellant post adequate security to protect a damages award already made, citing Lindsey v. Normet, 405 U. S., at 77; that an appeal in forma pauperis in a civil case is a privilege, not a right; and that “the concept of Equal Protection does not include full and unrestrained appellate review of an initial adjudication which afforded Due Process.” Patterson's request for relief was therefore denied.

After probable jurisdiction had been noted here, and shortly prior to the filing of briefs in this Court, the Supreme Court of West Virginia decided State ex rel. Reece v. Gies,-W. Va.-, 198 S. E. 2d 211 (1973). In Reece the portion of § 50-15-2 requiring an appeal bond in an amount double the damages plus one year’s rent as a prerequisite to an appeal from a justice court in a suit for unlawful detention of real estate was under constitutional challenge. The West Virginia court, citing the District Court’s decision in the present case and Greer v. Dillard, 213 Va. 477, 193 S. E. 2d 668 (1973), upheld the bond amount provision, with two of the court’s five justices dissenting on that issue, but went on to rule unanimously that the judgment entered against the defendant by a West Virginia justice of the peace was vio-lative of the Due Process Clauses of the Federal and State Constitutions and was “void.” -W. Va., at-, 198 S. E. 2d, at 216. Its rationale was that, because the justice’s fee was enhanced when he ruled in favor of the plaintiff, he possessed a pecuniary interest in the case’s outcome, and the parties therefore were denied a neutral and unbiased judge. See also State ex rel. Moats v. Janco, 154 W. Va. 887, 180 S. E. 2d 74 (1971).

The judgment entered against appellant Patterson by appellee Warner was rendered pursuant to the same West Virginia statutory scheme that was challenged, in part successfully, in Reece. Appellant, upon becoming aware of the Reece decision, filed a suggestion of mootness here. Appellee Warner at the time opposed the suggestion. Although that aspect of the case was not addressed in the briefs, it was discussed at oral argument. Tr. of Oral Arg. 3-6, 34-36. Appellant, despite his having made the suggestion of mootness, asserted at oral argument that Reece had no retroactive application, and that the judgment entered against him was not void and the case was not moot. Id., at 5. Appellee Warner contended otherwise, id., at 37-38, stating that in West Virginia, under Falconer v. Simmons, 51 W. Va. 172, 41 S. E. 193 (1902), a State Supreme Court pronouncement, with one exception, is fully retroactive in the sense that it is regarded as always having been the law.

Inasmuch as the decision of the Supreme Court of West Virginia in Reece was rendered after the entry of the judgment in the present case, the three-judge District Court had no occasion to consider whether the decision in Reece means that the judgment obtained by Graham against Patterson is void and whether the present case has become moot. We deem it desirable that the District Court, in the first instance, evaluate the effect of that intervening decision. Accordingly, the judgment of the District Court is vacated, and the case is remanded to that court for reconsideration in the light of State ex rel. Reece v. Gies, - W. Va. -, 198 S. E. 2d 211 (1973). In so doing, we intimate no view as to whether the case is or is not now moot.

It is so ordered.

       W. Va. Code Ann. § 50-15-2 provides in pertinent part as follows:
      “The appeal shall not be granted by the justice unless, within ten days after the judgment is rendered . . . bond with good security, to be approved by the justice, in a penalty double the amount of the judgment, is filed with him, with condition to the effect that the person proposing to appeal will perform and satisfy any judgment which may be rendered against him on such appeal ... or if he does not wish to stay the execution on such judgment, with condition to pay the costs of such appeal if the judgment appealed from be affirmed. In case there be judgment before the justice against the plaintiff for costs only, and the plaintiff desires to appeal, the bond shall be for costs, conditioned as aforesaid, and in a penalty not exceeding one hundred dollars. . .

       Three hundred dollars is the monetary limit of the jurisdiction of a West Virginia justice of the peace in a civil action for the recovery of money. W. Va. Code Ann. § 50-2-1.


author: Mr. Chief Justice Burger Mr. Justice Stewart,

text:
    DAVIS v. ALASKA
    No. 72-5794.
    Argued December 12, 1973—
    Decided February 27, 1974
    BüRGER, C. J., delivered the opinion of the Court, in which Douglas, BrennaN, Stewart, Marshall, Blackmun, and Powell, JJ., joined. Stewart, J., filed a concurring statement, post, p. 321. White, J., filed a dissenting opinion, in which Rehnquist, J., joined, post, p. 321.

      Robert H. Wag staff argued the cause and filed briefs for petitioner.

      Charles M. Merriner argued the cause for respondent. With him on the brief was John E. Havelock, Attorney General of Alaska.

        William P. Homans, Jr., filed a brief for Arthur Bembury as amicus curiae.

   Mr. Chief Justice Burger

delivered the opinion of the Court.

We granted certiorari in this case to consider whether the Confrontation Clause requires that a defendant in a criminal case be allowed to impeach the credibility of a prosecution witness by cross-examination directed at possible bias deriving from the witness’ probationary status as a juvenile delinquent when such an impeachment would conflict with a State’s asserted interest in preserving the confidentiality of juvenile adjudications of delinquency.

(1)

When the Polar Bar in Anchorage closed in the early morning hours of February 16, 1970, well over a thousand dollars in cash and checks was in the bar’s Mosler safe. About midday, February 16, it was discovered that the bar had been broken into and the safe, about two feet square and weighing several hundred pounds, had been removed from the premises.

Later that afternoon the Alaska State Troopers received word that a safe had been discovered about 26 miles outside Anchorage near the home of Jess Straight and his family. The safe, which was subsequently determined to be the one stolen from the Polar Bar, had been pried open and the contents removed. Richard Green, Jess Straight’s stepson, told investigating troopers on the scene that at about noon on February 16 he had seen and spoken with two Negro men standing alongside a late-model metallic blue Chevrolet sedan near where the safe was later discovered. The next day Anchorage police investigators brought him to the police station where Green was given six photographs of adult Negro males. After examining the photographs for 30 seconds to a minute, Green identified the photograph of petitioner as that of one of the men he had encountered the day-before and described to the police. Petitioner was arrested the next day, February 18. On February 19, Green picked petitioner out of a lineup of seven Negro males.

At trial, evidence was introduced to the effect that paint chips found in the trunk of petitioner’s rented blue Chevrolet could have originated from the surface of the stolen safe. Further, the trunk of the car contained particles which were identified as safe insulation characteristic of that found in Mosler safes. The insulation found in the trunk matched that of the stolen safe.

Richard Green was a crucial witness for the prosecution. He testified at trial that while on an errand for his mother he confronted two men standing beside a late-model metallic blue Chevrolet, parked on a road near his family’s house. The man standing at the rear of the car spoke to Green asking if Green lived nearby and if his father was home. Green offered the men help, but his offer was rejected. On his return from the errand Green again passed the two men and he saw the man with whom he had had the conversation standing at the rear of the car with “something like a crowbar’’’ in his hands. Green identified petitioner at the trial as the man with the “crowbar.” The safe was discovered later that afternoon at the point, according to Green, where the Chevrolet had been parked.

Before testimony was taken at the trial of petitioner, the prosecutor moved for a protective order to prevent any reference to Green’s juvenile record by the defense in the course of cross-examination. At the time of the trial and at the time of the events Green testified to, Green was on probation by order of a juvenile court after having been adjudicated a delinquent for burglarizing two cabins. Green was 16 years of age at the time of the Polar Bar burglary, but had turned 17 prior to trial.

In opposing the protective order, petitioner’s counsel made it clear that he would not introduce Green’s juvenile adjudication as a general impeachment of Green’s character as a truthful person but, rather, to show specifically that at the same time Green was assisting the police in identifying petitioner he was on probation for burglary. From this petitioner would seek to show — or at least argue — that Green acted out of fear or concern of possible jeopardy to his probation. Not only might Green have made a hasty and faulty identification of petitioner to shift suspicion away from himself as one who robbed the Polar Bar, but Green might have been subject to undue pressure from the police and made his identifications under fear of possible probation revocation. Green’s record would be revealed only as necessary to probe Green for bias and prejudice and not generally to call Green’s good character into question.

The trial court granted the motion for a protective order, relying on Alaska Rule of Children’s Procedure 23, and Alaska Stat. .§ 47.10.080 (g) (1971).

Although prevented from revealing that Green had been on probation for the juvenile delinquency adjudication for burglary at the same time that he originally identified petitioner, counsel for petitioner did his best to expose Green’s state of mind at the time Green discovered that a stolen safe had been discovered near his home. Green denied that he was upset or uncomfortable about the discovery of the safe. He claimed not to have been worried about any suspicions the police might have been expected to harbor against him, though Green did admit that it crossed his mind that the police might have thought he had something to do with the crime.

Defense counsel cross-examined Green in part as follows:

“Q. Were you upset at all by the fact that this safe was found on your property?
“A. No, sir.
“Q. Did you feel that they might in some way suspect you of this?
“A. No.
“Q. Did you feel uncomfortable about this though?
“A. No, not really.
“Q. The fact that a safe was found on your property?
“A. No.
“Q. Did you suspect for a moment that the police might somehow think that you were involved in this?
“A. I thought they might ask a few questions is all.
“Q. Did that thought ever enter your mind that you — that the police might think that you were somehow connected with this?
“A. No, it didn’t really bother me, no.
“Q. Well, but ... .
“A. I mean, you know, it didn’t — it didn’t come into my mind as worrying me, you know.
“Q. That really wasn’t — wasn’t my question, Mr. Green. Did you think that — not whether it worried you so much or not, but did you feel that there was a possibility that the police might somehow think that you had something to do with this, that they might have that in their mind, not that you ....
“A. That came across my mind, yes, sir.
“Q. That did cross your mind?
“A. Yes.
“Q. So as I understand it you went down to the— you drove in with the police in — in their car from mile 25, Glenn Highway down to the city police station?
“A. Yes, sir.
“Q. And then went into the investigators’ room with Investigator Gray and Investigator Weaver?
“A. Yeah.
“Q. And they started asking you questions about— about the incident, is that correct?
“A. Yeah.
“Q. Had you ever been questioned like that before by any law enforcement officers?
“A. No.
“MR. RIPLEY: I’m going to object to this, Your Honor, it’s a carry-on with rehash of the same thing. He’s attempting to raise in the jury’s mind ....
“THE COURT: I’ll sustain the objection.”

Since defense counsel was prohibited from making inquiry as to the witness’ being on probation under a juvenile court adjudication, Green’s protestations of unconcern. over possible police suspicion that he might have had a part in the Polar Bar burglary and his categorical denial of ever having been the subject of any similar law-enforcement interrogation went unchallenged. The tension between the right of confrontation and the State’s policy of protecting the witness with a juvenile record is particularly evident in the final answer given by the witness. Since it is probable that Green underwent some questioning by police when he was arrested for the burglaries on which his juvenile adjudication of delinquency rested, the answer can be regarded as highly suspect at the very least. The witness was in effect asserting, under protection of the trial court’s ruling, a right to give a questionably truthful answer to a cross-examiner pursuing a relevant line of inquiry; it is doubtful whether the bold “No” answer would have been given by Green absent a belief that he was shielded from traditional cross-examination. It would be difficult to conceive of a situation more clearly illustrating the need for cross-examination. The remainder of the cross-examination was devoted to an attempt to prove that Green was making his identification at trial on the basis of what he remembered from his earlier identifications at the photographic display and lineup, and not on the basis of his February 16 confrontation with the two men on the road.

The Alaska Supreme Court affirmed petitioner’s conviction, concluding that it did not have to resolve the potential conflict in this case between a defendant’s right to a meaningful confrontation with adverse witnesses and the State’s interest in protecting the anonymity of a juvenile offender since “our reading of the trial transcript convinces us that counsel for the defendant was able adequately to question the youth in considerable detail concerning the possibility of bias or motive.” 499 P. 2d 1025, 1036 (1972). Although the court admitted that Green’s denials of any sense of anxiety or apprehension upon the safe’s being found close to his home were possibly self-serving, “the suggestion was nonetheless brought to the attention of the jury, and that body was afforded the opportunity to observe the demeanor of the youth and pass on his credibility.” Ibid. The court concluded that, in light of the indirect references permitted, there was no error.

Since we granted certiorari limited to the question of whether petitioner was denied his right under the Confrontation Clause to adequately cross-examine Green, 410 U. S. 925 (1973), the essential question turns on the correctness of the Alaska court’s evaluation of the “adequacy” of the scope of cross-examination permitted. We disagree with that court’s interpretation of the Confrontation Clause and we reverse.

(2)

The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution “to be confronted with the witnesses against him.” This right is secured for defendants in state as well as federal criminal proceedings under Pointer v. Texas, 380 U. S. 400 (1965). Confrontation means more than being allowed to confront the witness physically. “Our cases construing the [confrontation] clause hold that a primary interest secured by it is the right of cross-examination.” Douglas v. Alabama, 380 U. S. 415, 418 (1965). Professor Wigmore stated:

“The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination. The opponent demands confrontation, not for the idle purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of cross-examination, which cannot be had except by the direct and personal putting of questions and obtaining immediate answers.” 5 J. Wigmore, Evidence § 1395, p. 123 (3d ed. 1940). (Emphasis in original.)

Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness’ story to test the witness’ perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i. e., discredit, the witness. One way of discrediting the witness is to introduce evidence of a prior criminal conviction of that witness. By so doing the cross-examiner intends to afford the jury a basis to infer that the witness’ character is such that he would be less likely than the average trustworthy citizen to be truthful in his testimony. The introduction of evidence of a prior crime is thus a general attack on the credibility of the witness. A more particular attack on the witness’ credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. The partiality of a witness is subject to exploration at trial, and is “always relevant as discrediting the witness and affecting the weight of his testimony.” 3A J. Wigmore, Evidence § 940, p. 775 (Chadbourn rev. 1970). We have recognized that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. Greene v. McElroy, 360 U. S. 474, 496 (1959).

In the instant case, defense counsel sought to show the existence of possible bias and prejudice of Green, causing him to make a faulty initial identification of petitioner, which in turn could have affected his later in-court identification of petitioner.

We cannot speculate as to whether the jury, as sole judge of the credibility of a witness, would have accepted this line of reasoning had counsel been permitted to fully present it. But we do conclude that the jurors were entitled to have the benefit of the defense theory before them so that they could make an informed judgment as to the weight to place on Green’s testimony which provided “a crucial link in the proof ... of petitioner’s act.”- Douglas v. Alabama, 380 U. S., at 419. The accuracy and truthfulness of Green’s testimony were key elements in the State’s case against petitioner. The claim of bias which the defense sought to develop was admissible to afford a basis for an inference of undue pressure because of Green’s vulnerable status as a probationer, cf. Alford v. United States, 282 U. S. 687 (1931), as well as of Green’s possible concern that he might be a suspect in the investigation.

We cannot accept the Alaska Supreme Court’s conclusion that the cross-examination that was permitted defense counsel was adequate to develop the issue of bias properly to the jury. While counsel was permitted to ask Green whether he was biased, counsel was unable to make a record from which to argue why Green might have been biased or otherwise lacked that degree of impartiality expected of a witness at trial. On the basis of the limited cross-examination that was permitted, the jury might well have thought that defense counsel was engaged in a speculative and baseless line of attack on the credibility of an apparently blameless witness or, as the prosecutor’s objection put it, a “rehash” of prior cross-examination. On these facts it seems clear to us that to make any such inquiry effective, defense counsel should have been permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. Petitioner was thus denied the right of effective cross-examination which “ 'would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.’ Brookhart v. Janis, 384 U. S. 1, 3.” Smith v. Illinois, 390 U. S. 129, 131 (1968).

(3)

The claim is made that the State has an important interest in protecting the anonymity of juvenile offenders and that this interest outweighs any competing interest this petitioner might have in cross-examining Green about his being on probation. The State argues that exposure of a juvenile’s record of delinquency would likely cause impairment of rehabilitative goals of the juvenile correctional procedures. This exposure, it is argued, might encourage the juvenile offender to commit further acts of delinquency, or cause the juvenile offender to lose employment opportunities or otherwise suffer unnecessarily for his youthful transgression.

We do not and need not challenge the State’s interest as a matter of its own policy in the administration of criminal justice to seek to preserve the anonymity of a juvenile offender. Cf. In re Gault, 387 U. S. 1, 25 (1967). Here, however, petitioner sought to introduce evidence of Green’s probation for the purpose of suggesting that Green was biased and, therefore, that his testimony was either not to be believed in his identification of petitioner or at least very carefully considered in that light. Serious damage to the strength of the State’s case would have been a real possibility had petitioner been allowed to pursue this line of inquiry. In this setting we conclude that the right of confrontation is paramount to the State’s policy of protecting a juvenile offender. Whatever temporary embarrassment might result to Green or his family by disclosure of his juvenile record— if the prosecution insisted on using him to make its case— is outweighed by petitioner’s right to probe into the influence of possible bias in the testimony of a crucial identification witness.

In Alford v. United States, supra, we upheld the right of defense counsel to impeach a witness by showing that because of the witness' incarceration in federal prison at the time of trial, the witness’ testimony was biased as “given under promise or expectation of immunity, or under the coercive effect of his detention by officers of the United States.” 282 U. S., at 693. In response to the argument that the witness had a right to be protected from exposure of his criminal record, the Court stated:

“[.N]o obligation is imposed on the court, such as that suggested below, to protect a witness from being discredited on cross-examination, short of an attempted invasion of his constitutional protection from self incrimination, properly invoked. There is a duty to protect him from questions which go beyond the bounds of proper cross-examination merely to harass, annoy or humiliate him.” Id., at 694.

As in Alford, we conclude that the State's desire that Green fulfill his public duty to testify free from embarrassment and with his reputation unblemished must fall before the right of petitioner to seek out the truth in the process of defending himself.

The State’s policy interest in protecting the confidentiality of a juvenile offender's record cannot require yielding of so vital a constitutional right as the effective cross-examination for bias of an adverse witness. The State could have protected Green from exposure of his juvenile adjudication in these circumstances by refraining from using him to make out its case; the State cannot, consistent with the right of confrontation, require the petitioner to bear the full burden of vindicating the State’s interest in the secrecy of juvenile criminal records. The judgment affirming petitioner’s convictions of burglary and grand larceny is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

u -s go Qrdererl

Mr. Justice Stewart,

concurring.

The Court holds that, in the circumstances of this case, the Sixth and Fourteenth Amendments conferred the right to cross-examine a particular prosecution witness about his delinquency adjudication for burglary and his status as a probationer. Such cross-examination was necessary in this case in order “to show the existence of possible bias and prejudice ...,” ante, at 317. In joining the Court's opinion, I would emphasize that the Court neither holds nor suggests that the Constitution confers a right in every case to impeach the general credibility of a witness through cross-examination about his past delinquency adjudications or criminal convictions.

Mr. Justice White, with whom Mr. Justice Rehnquist joins, dissenting.

As I see it, there is no constitutional principle at stake here. This is nothing more than a typical instance of a trial court exercising its discretion to control or limit cross-examination, followed by a typical decision of a state appellate court refusing to disturb the judgment of the trial court and itself concluding that limiting cross-examination had done no substantial harm to the defense. Yet the Court insists on second-guessing the state courts and in effect inviting federal review of every ruling of a state trial judge who believes cross-examination has gone far enough. I would not undertake this task, if for no other reason than that I have little faith in our ability, in fact-bound cases and on a cold record, to improve on the judgment of trial judges and of the state appellate courts who agree with them. I would affirm the judgment.

       Rule 23 provides:
      “No adjudication, order, or disposition of a juvenile case shall be admissible in a court not acting in the exercise of juvenile jurisdiction except for use .in a presentencing procedure in a criminal case where the superior court, in its discretion, determines that such use is appropriate.”

       Section 47.10.080 (g) provides in pertinent part:
      “The commitment and placement of a child and evidence given in the court are not admissible as evidence against the minor in a subsequent case or proceedings in any other court . ...”

       In the same opinion the Alaska Supreme Court also affirmed petitioner’s conviction, following a separate trial, for being a felon in possession of a concealable firearm. That conviction is not in issue before this Court.

       In Greene we stated:
      “Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination. . . .” 360 U. S., at 496.

       “[A] partiality of mind at some former time may be used as the basis of an argument to the same state at the time of testifying; though the ultimate object is to establish partiality at the time of testifying.” 3A J. Wigmore, Evidence § 940, p. 776 (Chadbourn rev. 1970). (Emphasis in original; footnotes omitted.)

       Although Alford involved a federal criminal trial and we reversed because of abuse of discretion and prejudicial error, the constitutional dimension of our holding in Alford is not in doubt. In Smith v. Illinois, 390 U. S. 129, 132-133 (1968), we relied, in part, on Alford to reverse a state criminal conviction on confrontation grounds.


author: Mr. Justice Douglas Mr. Justice Stewart,

text:
    NATIONAL LABOR RELATIONS BOARD v. MAGNAVOX COMPANY OF TENNESSEE
    No. 72-1637.
    Argued January 14-15, 1974—
    Decided February 27, 1974
    Douglas, J., delivered the opinion of the Court, in which Burgee, C. J., and BrenNAN, White, Marshall, and Blackmun, JJ., joined. Stewart, J., filed an opinion concurring in part and dissenting in part, in which Powell and Rehnquist, JJ., joined, post, p. 327.

      Peter G. Nash argued the cause for petitioner. With him on the brief were Solicitor General Bork, John S. Irving, Patrick Hardin, and Norton J. Come.

      George K. McPherson, Jr., argued the cause and filed a brief for respondent. Winn Newman and Ruth Weyand filed a brief for the International Union of Electrical, Radio & Machine Workers, AFL-CIO, petitioner below, urging reversal.
   Mr. Justice Douglas

delivered the opinion of the Court.

In 1954, the International Union of Electrical, Radio, and Machine Workers (IUE) became the collective-bargaining representative of respondent's employees. At that time respondent had a rule prohibiting employees from distributing literature on any of its property, including parking lots and other nonwork areas. The collective agreement authorized the company to issue rules for the “maintenance of orderly conditions op plant property,” provided the rules were not “unfair” or “discriminatory.” It also provided that bulletin boards would be available for the posting of union notices, subject to the company’s right to reject “controversial” notices. All subsequent contracts contained similar provisions. Throughout the period since 1954 respondent has prohibited employees from distributing literature even in nonworking areas during nonworking time.

In due course, the IUE challenged the validity of the company’s rule and requested that the rule be changed. The request was denied and the IUE filed charges against respondent for unfair labor practices in violation of § 8 (a) (1) of the National Labor Relations Act, 49 Stat. 452, as amended, 29 U. S. C. § 158 (a)(1). The Board held for the IUE, following its earlier decision in Gale Products, 142 N. L. R. B. 1246, where it had said:

“Their place of work is.the one location where employees are brought together on a daily basis. It is the one place where they clearly share common interests and where they traditionally seek to persuade fellow workers in matters affecting their union organizational life and other matters related to their status as employees.” Id., at 1249.

The remedy in Gale Products ran in favor of employees whose distribution project was to reject a union representative. The Board in the present case, however, broadened the relief to embrace those who wanted to support a union representative, 195 N. L. R. B. 265. The Court of Appeals denied enforcement of the Board's order, because in its view the union had waived objection to the ban on on-premises distribution of literature and had the authority to do so. 474 F. 2d 1269. The case is here on petition for certiorari, which we granted because of the conflict between this decision of the Court of Appeals for the Sixth Circuit with that of the Eighth in International Association of Machinists v. NLRB, 415 F. 2d 113, and that of the Fifth in NLRB v. Mid-States Metal Products, 403 F. 2d 702.

Employees have the right recognized in § 7 of the Act “to form, join, or assist labor organizations” or “to refrain” from such activities. 29 U. S. C. § 157. We agree that a ban on the distribution of union literature or the solicitation of union support by employees at the plant during nonworking time may constitute an interference with § 7 rights. The Board had earlier held that solicitation outside working hours but on company property was protected by § 7 and that a rule prohibiting it was “discriminatory in the absence of evidence that special circumstances make the rule necessary in order to maintain production or discipline.” In re Peyton Packing Co., 49 N. L. R. B. 828, 843-844. We approved that ruling in Republic Aviation Corp. v. NLRB, 324 U. S. 793, 801-803. No contention is made here that considerations of production or discipline make respondent’s rule necessary. The sole issue concerns the power of the collective-bargaining representative to waive those rights.

The union may, of course, reach an agreement as to wages and other employment benefits and waive the right to strike during the time of the agreement as the quid pro quo for the employer’s acceptance of the grievance and arbitration procedure. Textile Workers v. Lincoln Mills, 353 U. S. 448, 455. Such agreements, however, rest on “the premise of fair representation” and presuppose that the selection of the bargaining representative “remains free.” Mastro Plastics Corp. v. NLRB, 350 U. S. 270, 280. In that case we held that the waiver of the “right to strike” did not embrace a waiver of the right to strike “against unlawful practices destructive of the foundation on which collective bargaining must rest.” Id., at 281. We dealt there with rights in the economic area. Yet, as the Fifth Circuit held in the Mid-States case, a different rule should obtain where the rights of the employees to exercise their choice of a bargaining representative is involved — whether to have no bargaining representative, or to retain the present one, or to obtain a new one. When the right to such a choice is at issue, it is difficult to assume that the incumbent union has no self-interest of its own to serve by perpetuating itself as the bargaining representative. 403 F. 2d, at 705. The place of work is a place uniquely appropriate for dissemination of views concerning the bargaining representative and the various options open to the employees. So long as the distribution is by employees to employees and so long as the in-plant solicitation is on nonworking time, banning of that solicitation might seriously dilute § 7 rights. For Congress declared in § 1 of the Act that it was the policy of the United States to protect “the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing.” 29 U. S. C. § 151.

It is argued that the use of the bulletin board is a fair substitute. But as the Fifth Circuit said in the Mid-States case the bulletin board may be an adequate medium for “preserving the status quo” and yet not give a union’s adversaries “equal access to and communication with their fellow employees.” 403 F. 2d, at 705.

Moreover, a limitation of the right of in-plant distribution of literature to employees opposing the union does not give a fair balance to § 7 rights, as the Board ruled in the present case. For employees supporting the union have as secure § 7 rights as those in opposition. The Board’s position, as noted, has not always been consistent. But its present ruling is, we think, quite consistent with § 7 rights of employees. It is the Board’s function to strike a balance among “conflicting legitimate interests” which will “effectuate national labor policy,” including those who support versus those who oppose the union. NLRB v. Truck Drivers Union, 353 U. S. 87, 96. Moreover, as respects employers, the rights of solicitation of employees by employees concerning § 7 rights are not absolute. As we noted in Republic Aviation Corp. the Board may well conclude that considerations of production or discipline may make controls necessary. No such evidence existed here and the trial examiner so found. Accordingly, this is not the occasion to balance the availability of alternative channels of communication against a legitimate employer business justification for barring or limiting in-plant communications.

Reversed.

Mr. Justice Stewart,

with whom Mr. Justice Powell and Mr. Justice Rehnquist join, concurring in part and dissenting in part.

To the extent the Court holds that a union cannot contractually waive the right of disaffected employees to distribute in nonwork areas and during nonwork time literature advocating the displacement of the incumbent collective-bargaining representative, I am in complete agreement. This is the essence of the Board's decision in Gale Products, 142 N. L. R. B. 1246. But it seems to me wholly inconsistent with the letter and spirit of the National Labor Relations Act to relieve the union of its promise that its own self-serving literature will not be so distributed in the plant.

Although the union is deemed to represent all employees in the bargaining unit, both pro-union and anti-union, and may waive important § 7 rights in the course of collective bargaining, presumably in return for management concessions on other fronts, this authority cannot extend to rights with respect to which the union and the individual employees have essentially conflicting interests. The Board stated the point succinctly in its decision in General Motors Corp., 158 N. L. R. B. 1723, 1727:

“[T]he employees, by once selecting the union as their representative, do not forfeit their fundamental right to change their representative at appropriate times. When a union acts to abridge that right in the manner presented in this case, it is essentially benefiting the union qua union, to the detriment of the employees it represents.”

Any such attempted waiver of the rights of others is so clearly in the union’s self-interest of perpetuating its status as the bargaining agent, and at odds with the interests of the disaffected employees, that “the premise of fair representation” underlying contractual waivers of § 7 rights is wholly undermined. Mastro Plastics Corp. v. NLRB, 350 U. S. 270, 280.

Judicial nullification of contractual concessions, however, is contrary to what the Court has recognized as “[o]ne of [the] fundamental policies” of the National Labor Relations Act — “freedom of contract.” H. K. Porter Co. v. NLRB, 397 U. S. 99, 108. “The theory of the Act is that free opportunity for negotiation with accredited representatives of employees is likely to promote industrial peace and may bring about the adjustments and agreements which the Act in itself does not attempt to compel.” NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 45. Contractual waivers against a union’s own interests are seldom if ever gratuitously granted in the give and take of the collective-bargaining process. In return, the union typically exacts some form of quid pro quo from the management negotiators. Since it is usually impossible to identify the consideration given in return for a particular union concession, the result of nullifying a union’s agreement to waive the § 7 rights of its supporters will necessarily be to deprive management of the benefit of its bargain and to leave the union with a windfall. This sort of invalidation of bargained-for concessions does not promote stability in the collective-bargaining process and must certainly have a negative effect on labor-management relations. For this reason, the Board and the courts should not relieve the parties of the promises they have made unless a contractual provision violates a specific section of the Act or a clear underlying policy of federal labor law.

In Gale Products the Board correctly determined that the union could not waive the distribution rights of employees who sought to distribute literature advocating the ouster of the incumbent union; for the clear policy of federal labor law forbids either the union or the employer to freeze out another union or to entrench the incumbent union by infringing the § 7 rights of dissident employees. I see no justification, however, for the Board’s extension of the Gale Products rule to prevent the union’s waiver of the distribution rights of its supporters in the bargaining unit.

The considerations that distinguish the waiver of supporters’ distribution rights from the waiver of opponents’ distribution rights were cogently stated by the Fifth Circuit in NLRB v. Mid-States Metal Products, 403 F. 2d 702, 705:

“Where union and employee interests are one it can fairly be assumed that employee rights will not be surrendered except in return for bargained-for concessions from the employer of benefit to employees. But the rationale of allowing waiver by the union disappears where the subject matter waived goes to the heart of the right of employees to change their bargaining representative, or to have no bargaining representative, a right with respect to which the interests of the union and employees may be wholly adverse. Solicitation and distribution of literature on plant premises are important elements in giving full play to the right of employees to seek displacement of an incumbent union. We cannot presume that the union, in agreeing to bar such activities, does so as a bargain for securing other benefits for the employees and not from the self-interest it has in perpetuating itself as bargaining representative.
“A waiver of the right to solicit and distribute literature does not hamper the union as it does the union’s adversaries. The union can communicate through the bulletin board, union meetings and the force of status as bargaining representative, enjoying an advantage in preserving the status quo. Its adversaries will not have equal access to and communication with their fellow employees.”

In nullifying, the union’s promise to waive the literature-distribution rights of its own supporters, the Board and today the Court are upsetting the delicate balance achieved in the give and take of negotiations and presenting the union with an undeserved windfall. This nullification, at the behest of the union that made the promise, can only contribute to future instability in collective bargaining between labor and management.

One can, of course, envision exceptional circumstances in which the union supporters’ access to and communication with their fellow employees in the bargaining unit might be so restricted that it would be extremely difficult, in the absence of their § 7 distribution rights, for them to respond to the arguments made in literature distributed by their opponents. In such a case, the waiver of the supporters’ rights might result in such a distortion of the labor political process as to prevent the balanced presentation of the issues to the employees that national labor policy seeks to promote. This concern was aptly expressed by the Board in its General Motors decision, 158 N. L. R. B., at 1726:

''[W]e recognizfe] the salutary purpose of refusing to disturb concessions yielded by either party through the processes of collective bargaining even where such a concession may infringe upon rights guaranteed employees under Section 7 of the Act. . . . [T]he validity of a particular concession or waiver must depend upon whether the interference with the employees’ statutory rights is so great as to override any legitimate reasons for upholding the waiver, or would unduly hamper the employees in exercising their basic rights under the Act.” (Internal quotations omitted.)

Thus, if in the absence of § 7 distribution rights the union supporters would be incapable of adequately presenting their position to the employees in a representation controversy, a strong argument could be made that the union’s agreement was contrary to a basic policy of the. National Labor Relations Act and that, despite the negative effect on the bargaining process, the union’s promise could not be effective.

In this case, however, there is no suggestion of such exceptional circumstances that would incapacitate the union’s supporters in any dispute regarding the union’s continued status as the collective-bargaining agent. It is clear from the record that the union supporters have access to the company bulletin boards; that they may still solicit support, although not distribute literature, in non work areas during nonwork time; and that they may distribute literature, and have done so in the past, at the gates of the plant. Thus, it is evident that the union supporters would not be disabled by this provision of the collective-bargaining agreement from maintaining their end of the political discourse that national labor policy seeks to foster.

I cannot agree to a general rule that allows the Board to nullify the union’s promise, contained in a collective-bargaining agreement, that its supporters will not distribute literature in the plant. For this reason, I dissent from the judgment and the opinion of the Court insofar as they hold that the union could not validly waive the distribution rights of the employees who support it.

      IUE, in a brief supporting the Board’s position, states there are some 2,300 employees in the bargaining unit who live scattered over a two-state area covering more than 100 square miles. The plant is located in Greenville, Tennessee. Some workers live 30 miles distant in Johnson City, Tennessee, and others live in Morrison, North Carolina. It claims that handing out leaflets at the plant gate is impractical as cars enter or exit four abreast at fast speeds. We mention these statements not to resolve a controversy, but to indicate at least a part of the range of any inquiry into the need for in-plant solicitation if § 7 rights are to be protected.

      Tlie Board held, and I presume the Court agrees, that the union could waive any right that the employees might have to distribute union institutional literature. The only question in this ease relates to the waivability of rights to distribute literature regarding the proposed selection, retention, or displacement of the collective-bargaining agent.


text:
    SPEIGHT, T/A HAREM BOOK STORE, et al. v. SLATON et al.
    No. 72-1557.
    Argued January 7-8, 1974
    Decided February 27, 1974

      Robert Eugene Smith argued the cause for appellants. With him on the brief was D. Freeman Hutton.

      Thomas R. Moran argued the cause and filed a brief for appellees.
   Per Curiam.

This is an appeal from a decision of a three-judge District Court (356 F. Supp. 1101) declining to intervene in a pending state civil proceeding and holding that such intervention was barred by our decision in Younger v. Harris, 401 U. S. 37. The state proceeding, brought against appellants by the Solicitor General of Fulton County, Georgia, sought an injunction against the operation of appellant Speight’s bookstore, and confiscation and destruction of all merchandise on the store’s premises, on the grounds that the store was being used for the “advertising, storage, sale, and exhibition for sale of materials obscene within the meaning of Section 26-2101 of the Criminal Code of Georgia.” The basis for the State’s action was § 26-2103 of the Code under which the use of any premises for the violation of § 26-2101 constitutes a “public nuisance,” thereby triggering the application of state statutory provisions for the abatement of public nuisances, c. 72-2 of the Code of Georgia. The case is here on appeal. 28 U. S. C. §§ 1253, 2101 (b). We noted probable jurisdiction to decide whether under these circumstances federal intervention in the pending state proceedings was barred by our holding in Younger v. Harris, supra.

Since oral argument of this case the Georgia Supreme Court has struck down the application of § 26-2103 in another case involving similar facts. Sanders v. State, 231 Ga. 608, 203 S. E. 2d 153 (1974). In Sanders the State had brought an action to enjoin the operation of a bookstore on the ground that certain publications sold by the store were obscene under § 26-2101. The supreme court held that this application of § 26-2103 “represents an unconstitutional prior restraint when construed and applied to authorize the permanent closure of the book store as a public nuisance upon a finding that a single publication, obscene under the standards of Code Ann. § 26-2101 (b), was sold on its premises.” Id., at 611, 203 S. E. 2d, at 155. As we understand the Georgia court’s decision, the operation of a bookstore could not be enjoined merely because some of its merchandise had been judicially determined to be obscene. The Georgia court cited both the Federal and Georgia Constitutions in its decision, although it was not explicit as to whether each provided, in its view, an independent ground for its holding.

It would appear that this Georgia Supreme Court decision would probably foreclose the state action against which federal injunctive relief was sought by appellants in this case. In that event appellants could obtain full relief in the state court proceeding merely by moving to dismiss the state action, in accord with state procedural rules, in light of Sanders v. State. If that is the case, appellants could not now make any showing of irreparable injury by reason of the state court proceeding, and such a showing is of course required before the federal court could grant the equitable relief, apart from any special considerations involved in Younger v. Harris, supra, at 46.

We therefore vacate the judgment below and remand to the District Court for reconsideration in light of the decision of the Georgia Supreme Court in Sanders v. State, supra.

It is so ordered.


author: Mr. Justice Douglas

text:
    NATIONAL CABLE TELEVISION ASSN., INC. v. UNITED STATES et al.
    No. 72-948.
    Argued December 3, 1973
    Decided March 4, 1974

      Douglas, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, and Rehnquist, JJ., joined. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined, •post, p. 352. Blackmun and Powell, JJ., took no part in the decision of the case.

      Stuart F. Feldstein argued the cause for petitioner. With him on the briefs was Stephen A. Gold.

      Edward R. Korman argued the cause for the United States et al. With him on the brief were Solicitor General Bork, Assistant Attorney General Kauper, John W. Pettit, and Joseph A. Marino.

       Briefs of amici curiae urging reversal were filed by Harold J. Cohen, F. Mark Garlinghouse, and Lloyd D. Young for the American Telephone & Telegraph Co., and by John B. Summers for the National Association of Broadcasters.

   Mr. Justice Douglas

delivered the opinion of the Court.

The Independent Offices Appropriation Act, 1952, Tit. 5, 65 Stat. 290, 31 U. S. C. § 483a, provides in relevant part: “It is the sense of the Congress that any work, service .. . benefit, . . . license, ... or similar thing of value or utility performed, furnished, provided, granted ... by any Federal agency ... to or for any person (including . . . corporations ...)... shall be self-sustaining to the full extent possible, and the head of each Federal agency is authorized by regulation ... to prescribe therefor . . . such fee, charge, or price, if any, as he shall determine ... to be fair and equitable taking into consideration direct and indirect cost to the Government, value to the recipient, public policy or interest served, and other pertinent facts . ...” Petitioner is a trade association representing community antenna television (CATV) systems which transmit TV programs by cable. The Federal Communications Commission is authorized to regulate these CATV outlets, as the Court held in United States v. Southwestern Cable Co., 392 U. S. 157. The power to regulate, though not in the form of granting licenses, extends to the promulgation of regulations requiring the compulsory origination of programs by CATV. United States v. Midwest Video Corp., 406 U. S. 649. These CATV’s, however, are not under the exclusive oversight of the Commission. Local governments and even some States provide permits or franchises to CATV’s, including rights of way for the cables used. Some communities in return for their permits require the CATV to pay an annual percentage fee as a gross receipts tax.

The Commission in 1964 established only nominal filing fees that produced revenues which approximated 25% of the Commission’s annual appropriation. See 21 F. C. C. 2d 502, 503. See also Aeronautical Radio, Inc. v. United States, 335 F. 2d 304. The Bureau of the Budget urged higher fee schedules; and so did the committees of the Congress. See H. R. Rep. No. 91-316, pp. 7-8, and H. R. Conf. Rep. No. 91-649, p. 6, where it was stated:

“The committee of conference is agreed that the fee structure for the Commission should be adjusted to fully support all its activities so the taxpayers will not be required to bear any part of the load in view of the profits regulated by this agency.”

The Commission, after notice and hearing, revised existing fees for licensees and for the first time imposed fees upon CATV's. It first estimated its direct and indirect costs for CATV regulation which were $1,145,400 or 4.6% of its total budget request for that year. Filing fees were retained; and there was added an annual fee for each cable television system at the rate of 30 cents for each subscriber. The Commission, finding that subscription rates clustered at about $5 a month, concluded that the 30-cent fee would typically amount to only about one-half of 1% of a CATV system’s gross revenues from subscription. The fees would produce, it said, $1,145,000 annually, and it concluded that the 30-cent fee would approximate the “value to the recipient” used in the Act, 23 F. C. C. 2d 880; 28 F. C. C. 2d 139.

Petitioner obtained review of the decision in the Court of Appeals, which approved the Commission’s action, 464 F. 2d 1313. The case is here on a petition for certiorari which we granted, 411 U. S. 981, because of an apparent conflict between the decision in this case and the decision in New England Power Co. v. FPC, 151 U. S. App. D. C. 371, 467 F. 2d 425, of the Court of Appeals for the District of Columbia Circuit.

Taxation is a legislative function, and Congress, which is the sole organ for levying taxes, may act arbitrarily and disregard benefits bestowed by the Government on a taxpayer and go solely on ability to pay, based on property or income. A fee, however, is incident to a voluntary act, e. g., a request that a public agency permit an applicant to practice law or medicine or construct a house or run a broadcast station. The public agency performing those services normally may exact a fee for a grant which, presumably, bestows a benefit on the applicant, not shared by other members of society. It would be such a sharp break with our traditions to conclude that Congress had bestowed on a federal agency the taxing power that we read 31 U. S. C. § 483a narrowly as authorizing not a “tax” but a “fee.” A “fee” connotes a “benefit” and the Act by its use of the standard “value to the recipient” carries that connotation. The addition of “public policy or interest served, and other pertinent facts,” ij read literally, carries an agency far from its customary orbit and puts it in search of revenue in the manner of an Appropriations Committee of the House.

The lawmaker may, in light of the “public policy or interest served,” make the assessment heavy if the lawmaker wants to discourage the activity; or it may make the levy slight if a bounty is to be bestowed; or the lawmaker may make a substantial levy to keep entrepreneurs from exploiting a semipublic cause for their own personal aggrandizement. Such assessments are in the nature of “taxes” which under our constitutional regime are traditionally levied by Congress.

There is no doubt that the main function of the Commission is to safeguard the public interest in the broadcasting activities of members of the industry. If assessments are made by the Commission against members of the industry which are sufficient to recoup costs to the Commission for its oversight, the CATV's and other broadcasters would be paying not only for benefits they received but for the protective services rendered the public by the Commission. The fixing of such assessments, it is argued, is the levying of taxes. The Court, speaking through Mr. Chief Justice Hughes said in Schechter Corp. v. United States, 295 U. S. 495, 529:

“The Constitution provides that 'All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives/ Art. I, § 1. And the Congress is authorized 'To make all laws which shall be necessary and proper for carrying into execution' its general powers. Art. I, § 8, par. 18. The Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested.”

Congress, of course, does delegate powers to agencies, setting standards to guide their determination. Thus, in Hampton & Co. v. United States, 276 U. S. 394, Congress enacted a flexible tariff law which authorized the imposition of customs duties on articles imported which equaled the difference between the cost of producing them in a foreign country and of selling them here and the cost of producing and selling like or similar articles in the United States. Provision was made for the investigation and determination of these differences by the Tariff Commission which reported to the President who increased or decreased the duty accordingly. The Court in sustaining that system said: “If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power.” Id., at 409.

Whether the present Act meets the requirement of Schechter and Hampton is a question we do not reach. But the hurdles revealed in those decisions lead us to read the Act narrowly to avoid constitutional problems.

The phrase “value to the recipient” is, we believe, the measure of the authorized fee. The words “public policy or interest served, and other pertinent facts” would not seem relevant to the present case, whatever may be their ultimate reach. The backbone of CATV is individual enterprise and ingenuity, not governmental largesse. The regulatory regime placed by Congress and the courts over CATV was not designed to make entrepreneurs rich but to serve the public interest by “mak[ing] available ... to all the people of the United States a rapid, efficient, Nation-wide, and world-wide wire and radio communications service.” 48 Stat. 1064, as amended, 47 U. S. C. § 151.

While those who operate CATV's may receive special benefits, we cannot be sure that the Commission used the correct standard in setting the fee. It is not enough to figure the total cost (direct and indirect) to the Commission for operating a CATV unit of supervision and then to contrive a formula that reimburses the Commission for that amount. Certainly some of the costs inured to the benefit of the public, unless the entire regulatory scheme is a failure, which we refuse to assume. The philosophy of § 483a was stated by Congressman Sidney Yates of the House Committee on Appropriations. While he spoke of TV and radio broadcasters, what he said is germane to the CATV problem:

“I think it is only fair that in exchange for the franchise that the Government gives the broadcasting company and the protection which the Government affords to such broadcasting company to assure its freedom from interference in the operation of its broadcasting facilities in the particular point of the spectrum which it occupies, ... it should pay some of the costs of the hearings. It is perfectly proper that the franchised company make a profit, and there has been much profit making. Such companies should assume a greater share of the costs, because regulation is necesary.” 97 Cong. Rec. 4809.

That congressional aim can be achieved within the framework of “value to the recipient” as contrasted to the public policy or interest that is also served.

The result is that we reverse the Court of Appeals so that the case can be remanded to the Federal Communications Commission for further proceedings consistent with this opinion.

Reversed and remanded.

Mr. Justice Blackmun and Mr. Justice Powell took no part in the decision of this case.

[For dissenting opinion of Mr. Justice Marshall, see post, p. 352.]

       The Committee Report, H. R. Rep. No. 384, 82d Cong, 1st Sess., 2-3, makes the following comment on this measure:
      “The Committee is concerned that the Government is not receiving full return from many of the services which it renders to special beneficiaries. Many fees for such services are specifically fixed by law, and in some cases, it is specifically provided that no fees shall be charged. In other cases, however, no fees are charged even though the charging of fees is not prohibited; and in still others, fees are charged upon the basis of formulae prescribed in law, but the application of the formulae needs to be re-examined to bring the actual charges into line with present-day costs and other related considerations.
      “It is understood that other committees of the Congress have interested themselves in this matter and that studies now are under way which may result in further legislation to require that adequate consideration be received for such services. However, such studies are necessarily time-consuming and the required legislation may not be enacted for a considerable period. Accordingly, the Committee has inserted language in the bill (Title V, page 60) which would authorize and encourage the charging or increasing of fees to the extent permitted under present basic laws, but which would in no way conflict with studies now under way to effect changes in such basic laws.
      “It is estimated that in 1952 the Government will receive more than $300,000,000 in fees from sources of the type here under consideration. It seems entirely possible that many of these fees could be raised, and that fees could be charged for other services of similar types in cases where no charge is now made, to the extent that the Government might realize upwards of $50,000,000 additional revenue.
      “The bill would provide authority for Government agencies to make charges for these services in cases where no charge is made at present, and to revise charges where present charges are too low, except in cases where the charge is specifically fixed by law or the law specifically provides that no charge shall be made. It is not the Committee’s intention in including this provision to disturb existing practices with respect to charges for postal services, sales of power, or the interest on loans by the Government.”

       The most recent CATV rules adopted by the Commission (37 Fed. Reg. 3280) require a CATV to receive a certificate of compliance from the Commission, 47 CFR §76.11 (b), and require it to obtain from the appropriate local government authority a certificate containing prescribed recitations and provisions. 47 CFR § 76.31. The new rules also limit the franchise fees that may be imposed on CATV’s by the localities where they operate. 47 CFR § 76.31. Included in the new rules are restrictions on telephone companies on whose poles the CATV cable is usually strung. See 47 CFR §§ 63.54-63.57, 64.601-64.602. And see General Telephone Co. v. United States, 449 F. 2d 846, 851; Report of Jan. 14, 1974, Cabinet Committee on Cable Communications (known as the Whitehead Report).

       By Art. I, § 8, cl. 1, of the Constitution it is the Congress that has the “Power to lay and collect Taxes.”

       Mr. Chief Justice Marshall is credited with the statement that “the power to tax is the power to destroy,” to which Mr. Justice Holmes replied, “The power to tax is not the power to destroy while this Court sits.” Panhandle Oil Co. v. Knox, 277 U. S. 218, 223 (dissenting opinion).