author: Mr. Justice Stewart

text:
    KEY et al. v. DOYLE et al.
    No. 76-1057.
    Argued October 5, 1977
    Decided November 14, 1977

      Floyd Willis III argued the cause and filed a brief for appellants.

      Carl F. Bauersfeld argued the cause for appellees. With him on the brief for appellee Calvary Baptist Church was Charles H. Burton. William A. Glasgow, Stephen A. Trimble, and Nicholas D. Ward filed a brief for appellee St. Matthews Cathedral.

        Leo Pfeffer and Paul S. Berger filed a brief for the American Jewish Congress as amicus curiae urging affirmance.

   Mr. Justice Stewart

delivered the opinion of the Court.

Sallye Lipscomb French died 20 days after executing a will leaving most of her estate to certain churches in the District of Columbia. Section 18-302 of the D. C. Code (1973) voids religious devises and bequests made within 30 days of death. Prevented by this statutory provision from carrying out the terms of the will, appellee Doyle as executor sought instructions in the Probate Division of the Superior Court of the District of Columbia. Both that court and the District of Columbia Court of Appeals held the statute unconstitutional. The decedent’s heirs and next of kin brought an appeal to this Court under 28 U. S. C. § 1257 (1), which provides for review by appeal in cases “where is drawn in question the validity of a . . . statute of the United States and the decision is against its validity.” We postponed consideration of the question of our appellate jurisdiction to the hearing of the case on the merits. 430 U. S. 929. Because we conclude that a law applicable only in the District of Columbia is not a “statute of the United States” for purposes of 28 U. S. C. § 1257 (1), we dismiss the appeal for lack of jurisdiction.

Before 1970 the judgments of the trial courts of the District of Columbia were appealable to the United States Court of Appeals. Ultimate review in this Court was available under 28 U. S. C. § 1254, which was applicable to all of the 11 Federal Courts of Appeals. A right of appeal to this Court from the United States Court of Appeals for the District of Columbia Circuit thus existed only where that court had invalidated a state statute. All other cases, including those challenging the validity of local statutes of the District of Columbia, were reviewable here by writ of certiorari.

The District of Columbia Court Reform and Criminal Procedure Act of 1970 substantially modified the structure and jurisdiction of the courts in the District, but there is no indication that Congress intended these changes to enlarge the right of appeal to this Court from the courts of that system. The aim of the Act was to establish “a Federal-State court system in the District of Columbia analogous to court systems in the several States.” H. R. Rep. No. 91-907, p. 35 (1970). The Act provided that cases would no longer have to proceed from the local courts to the United States Court of Appeals, and then to this Court under § 1254. Instead, the judgments of the newly created local Court of Appeals were made directly reviewable here, like the judgments of state courts. Accordingly, § 1257, the jurisdictional provision concerning Supreme Court review of state-court decisions, was amended to include the District of Columbia Court of Appeals as “the highest court of a State.”

In Palmore v. United States, 411 U. S. 389 (1973), we recognized that the analogy between the local courts of the District and the courts of the States was not perfect. Although Congress had expressly classified the District of Columbia Court of Appeals as a state court, it had not indicated that D. C. Code provisions should be treated as state statutes. Thus, where the District of Columbia courts had upheld a local statute against constitutional attack, we concluded that an appeal as of right would not lie to this Court under § 1257 (2), which applies to state-court decisions rejecting constitutional challenges to state statutes. Underlying our decision was the long-established principle that counsels a narrow construction of jurisdictional provisions authorizing appeals as of right to this Court, in the absence of clear congressional intent to enlarge the Court’s mandatory jurisdiction. 411 U. S., at 396.

The legislative history of the 1970 Act is as unenlightening about the applicability of § 1257 (1) as it is about that of § 1257 (2). In the Senate Committee hearings on an early version of the Act, there was one brief reference to § 1257:

“The Chairman [Senator Tydings], ... On page 3, section 11-102 there is a provision relating to appeal:
“ ‘The highest court of the District of Columbia is the District of Columbia Court of Appeals. For purposes of appeal to the Supreme Court and other purposes of law, it shall be deemed the highest court of the state.’ [Emphasis added.]
“Now, my question to you is a question raised about that language. Is that sufficiently broad to allow the Supreme Court review by certiorari?
“Mr. Kleindienst. We believe so.
“The Chairman. As well as appeal pursuant to 28 U. S. C. 12750 [sic] ? Because the language, you know, leaves out certiorari. Certiorari is an important vehicle to reach the Supreme Court.
“Mr. Kleindienst. We believe the language covers cer-tiorari but it would be easy to clarify.”

Although Senator Tydings seems to have assumed that both the appeal and certiorari provisions of § 1257 would apply to the judgments of the District of Columbia Court of Appeals, it is not clear whether he thought the appeal provision of § 1257 (1) or that of § 1257 (2) would govern. And if he had in mind § 1257 (1), he made no reference to possible distinctions between federal statutes of solely local concern and those of broader scope. Nowhere in the legislative history do we find further discussion of this point.

The omission is understandable. The question had not arisen before the 1970 reorganization because § 1257 then applied only to state courts, which seldom if ever confronted federal statutes of wholly local application. Although the courts of the District were accustomed to seeing such federal statutes, the jurisdictional provision that applied to them did not mention “statutes of the United States.” Rather, § 1254 divides cases from the courts of appeals into’ two categories— those invalidating state statutes and all others.

Although the precise question at issue in this case thus seems to have escaped the attention of Congress, it was clear that a general right of appeal from the District of Columbia courts to this Court on questions concerning the validity of local law did not exist at the time of the 1970 reorganization. In the absence of an express provision so ordaining, it cannot be assumed that Congress intended to enlarge this Court’s mandatory appellate jurisdiction by simply shifting review of District of Columbia court judgments from § 1254 to § 1257.

Indeed, the purposes of the 1970 Act strongly imply the contrary. As we noted in Patmore, Congress intended “to establish an entirely new court system with functions essentially similar to those of the local courts found in the 50 States of the Union with responsibility for trying and deciding those distinctively local controversies that arise under local law, including local criminal laws having little, if any, impact beyond the local jurisdiction.” 411 U. S., at 409.

This Court’s mandatory appellate jurisdiction over state-court judgments under § 1257 is reserved for cases threatening the supremacy of federal law. When state courts invalidate state statutes on federal grounds, uniformity of national law is not threatened and there is no automatic right of appeal to this Court. From the analogy of the local D. C. courts to state courts drawn by Congress in the 1970 Act, it follows that no right of appeal should lie to this Court when a local court of the District invalidates a law of exclusively local application. From such judgments and from similar state-court judgments, there is no appeal to this Court, but only review by writ of certiorari according to the terms of § 1257 (3).

This construction of § 1257 (1) neither enlarges nor reduces this Court’s mandatory appellate jurisdiction as a result of the 1970 Act. It gives litigants in the courts of the District the same right of review in this Court as is enjoyed by litigants in the courts of the States.

For the reasons expressed in this opinion, the appeal is dismissed for lack of jurisdiction.

It is so ordered.

Mr. Justice White, with whom The Chief Justice, Mr. Justice Blackmun, and Mr. Justice Powell join, dissenting.

In Palmore v. United States, 411 U. S. 389 (1973), this Court held that provisions of the District of Columbia Code enacted by the United States Congress were not “state laws” within the meaning of 28 U. S. C. § 1257 (2) and that a decision of the D. C. Court of Appeals upholding such provisions was reviewable in this Court only on certiorari. Today, this Court holds that an Act of Congress relating exclusively to the District of Columbia is also not a “statute of the United States” within the meaning of 28 U. S. C. § 1257 (1). Thus, even where the D. C. Court of Appeals strikes down such a congressional enactment on federal constitutional grounds, there is no right of direct appeal to this Court, review being limited to this Court’s discretionary acceptance of a writ of certiorari. Because I believe that this holding is inconsistent with the prior decisions of this Court and contrary to the congressional scheme determining Supreme Court jurisdiction, I dissent from the majority opinion.

I

In the early years of the judicial system, all cases from the federally created-court in the District of Columbia involving more than a specified jurisdictional amount were appealable to the United States Supreme Court. In 1885, the jurisdictional amount was raised to $5,000, but special provision was made for appeal without regard to the sum in dispute in

“any case ... in which is drawn in question the validity of a treaty or statute of or an authority exercised under the United States . . . .” Ch. 355, 23 Stat. 443.

Since the enactment of this statute, this Court has consistently held that a constitutional attack upon a congressional enactment relating exclusively to the District of Columbia draws into question a “statute” or “law” of the United States within the meaning of the relevant jurisdictional statute.

This view underlies the opinion in Baltimore & Potomac R. Co. v. Hopkins, 130 U. S. 210 (1889), in which an absence of jurisdiction was found for another reason. It was made explicit in Parsons v. District of Columbia, 170 U. S. 45 (1898), in which the Court upheld its jurisdiction over a challenge to a congressional scheme for water main assessments in the District of Columbia. “ [W] e think it plainly appears,” the Court stated, “that the validity of statutes of the United States and of an authority exercised under the United States was drawn into question in the court below . . . Id., at 50. Accord, Smoot v. Heyl, 227 U. S. 518 (1913) (upholding Supreme Court jurisdiction over a challenge to the validity of a District of Columbia party-wall regulation).

In 1911 the Congress abolished this Court’s jurisdiction over appeals from the District of Columbia predicated on jurisdictional amount, but added a provision for appeal in cases in which “the construction of any law of the United States is drawn in question by the defendant.” 36 Stat. 1159. In American Security & Trust Co. v. District of Columbia Comm’rs, 224 U. S. 491 (1912), the Court construed this provision not to include laws pertaining exclusively to the District of Columbia, because the alternative construction would have defeated the congressional purpose “to effect a substantial relief to this court from indiscriminate appeals where a sum above $5,000 was involved.” Id., at 495. Nevertheless, the Court noted that “there is no doubt that the special act of Congress was in one sense a law of the United States” and the Court’s opinion distinguished the statutory provision pertaining to appeals in “Cases involving the constitutionality of any law of the United States.”

In Heald v. District of Columbia, 254 U. S. 20 (1920), the Court squarely held once again that a constitutional attack on a federal statute pertaining exclusively to the District of Columbia drew into question the validity of a “law of the United States” within the meaning of the appeal statute. The Court explicitly rejected the suggestion that American Security & Trust Co. was controlling, since that case itself had recognized a “difference between the two subjects.” 254 U. S., at 22. The Court also noted that the current appeal statute had been intended to “reenact provisions of prior statutes which had been construed as conveying authority to review controversies concerning the constitutional power of Congress to enact local statutes.” Id., at 22-23, citing Parsons v. District of Columbia, supra, and Smoot v. Heyl, supra. Since the Heald decision, this Court has not commented further on the issue raised therein, but commentators have concluded that a “federal statute, for purposes of § 1257 (1), plainly means enactments by the Congress of the United States, including those which are limited in operation to the District of Columbia . . . .” R. Stern & E. Gressman, Supreme Court Practice 82 (4th ed. 1969). Accord, Boskey, Appeals from State Courts under the Federal Judicial Code, 30 Va. L. Rev. 57, 59 (1943).

II

It was against this background that Congress enacted the District of Columbia Court Reform and Criminal Procedure Act of 1970. 84 Stat. 473. It established a separate court system for the District of Columbia, headed by the District of Columbia Court of Appeals. Appeals from that court to the United States Supreme Court were to be regulated by 28 U. S. C. § 1257, which was amended to provide:

“For the purposes of this section, the term ‘highest court of a State’ includes the District of Columbia Court of Appeals.”

The Act also included a provision specifying that for purposes of determining the original jurisdiction of the district courts, “references to laws of the United States or Acts of Congress do not include laws applicable exclusively to the District of Columbia.” 28 U. S. C. § 1363, added by § 172 (c)(1) of the Reorganization Act, 84 Stat. 590. No proviso was added to 28 U. S. C. § 1257 (1) to indicate that the reference to “statute of the United States” in that provision was not to include federal laws pertaining to the District of Columbia.

The clear implication of Congress’ action with respect to § 1257 was that statutes relating to the District of Columbia would continue to be viewed, as they had been in the past, as statutes of the United States. Although Congress amended § 1257, characterizing the District of Columbia Court of Appeals as a “state court,” it did not also insert a restrictive provision similar to that limiting the jurisdiction of the district courts with respect to D. C. Code provisions. The legislative history gives no indication that Congress disagreed with the prior decisions of this Court holding that a constitutional attack upon a federal law local in operation would be viewed as a challenge to a “statute” or “law of the United States” within the meaning of the applicable appeal statute. In these circumstances, one can only conclude that the Congress intended that decisions invalidating laws concerning the District of Columbia would receive the same scrutiny from this Court as decisions invalidating other federal laws.

This Court’s decision in Palmore v. United States, 411 U. S. 389 (1973), supports — if indeed it does not require — that conclusion. The Court there held that provisions of the District of Columbia Code enacted by Congress were not “statutes of a state” within the meaning of § 1257 (2) and that D. C. court decisions upholding these laws would be reviewable only on certiorari. The Court reasoned:

“We are entitled to assume that in amending § 1257, Congress legislated with care, and that had Congress intended to equate the District Code and state statutes for the purposes of § 1257, it would have said SO' expressly and not left the matter to mere implication.” 411 U. S., at 395.

The Court suggested that an express provision “ ‘would have been easy,’ ” id., at 395 n. 5, quoting Farnsworth v. Montana, 129 U. S. 104, 113 (1889), and pointed out several exceptions for the District of Columbia within the Federal Judicial Code, including the provision added by the 1970 Act excluding federal statutes relating to the District of Columbia from the original jurisdiction of the district courts.

This reasoning obviously applies with even greater force to the language of § 1257 (1). Had Congress wished to exclude laws relating to the District of Columbia, it could have used almost precisely the same device as was used with respect to district court jurisdiction. “Jurisdictional statutes are to be construed 'with precision and with fidelity to the terms by which Congress has expressed its wishes.’ ” Palmore v. United States, supra, at 396, quoting Cheng Fan Kwok v. INS, 392 U. S. 206, 212 (1968).

Read together with Palmore, the effect of this Court’s decision is to put District of Columbia statutes in a unique class: They are neither statutes of a State nor statutes of the United States. Whether the District of Columbia Court of Appeals upholds them or strikes them down, there is no appeal to this Court. If Congress had intended that its enactments relating to the District of Columbia were to be treated as mongrel statutes, distinct from the recognized classifications of the Judicial Code, it would surely have said so.

III

Appellee St. Matthew’s Cathedral recognizes that this Court’s mandatory jurisdiction over appeals of state decisions invalidating federal laws was designed to assure that national legislation would not erroneously be set aside by local courts. Appellee argues that there is no necessity for such review of the decisions of the District of Columbia Court of Appeals because “it is an Article I court over which Congress has pie-. nary power.” Brief for Appellee St. Matthew’s Cathedral 11. I have some doubt as to whether that power could or should be used in the manner that appellee appears to contemplate. In any event, Congress, in amending § 1257, has made clear that the District of Columbia Court.of Appeals should be regarded as the “highest court of a State.” Appellee’s argument, which is predicated on the notion that the District of Columbia Court of Appeals is a type of federal court, must therefore be rejected.

Nor do I agree that we should view federal legislation relating to the District of Columbia as not sufficiently national in significance to merit mandatory review. We are not free to disregard § 1257 (1). Moreover, the clause giving the Congress power to legislate for the District of Columbia stands beside the other enumerated powers of Congress in Art. I, § 8, of the United States Constitution. “ ‘The object of the grant of exclusive legislation over the district was . . . national in the highest sense, and the city organized under the grant became the city, not of a state, not of a district, but of a nation.’ ” O’Donoghue v. United States, 289 U. S. 516, 539-540 (1933), quoting Grether v. Wright, 75 F. 742, 756-757 (CA6 1896) (Taft, J.). Though today the District of Columbia has a measure of home rule, the United States retains important interests in the District of Columbia, ranging from extensive federal property to the welfare of hundreds of thousands of federal employees. That the statute involved in this case is narrow in scope should not be permitted to camouflage the Nation's vital interest in the validity of laws governing its Capital.

I can see no reason for denying mandatory jurisdiction of constitutional challenges to D. C. Code provisions other than the general need to lessen the number of cases heard by this Court. While this may be a worthy objective, it should be effectuated by statutory amendment, not strained construction. Jurisdiction is not a handy tool for carving a workload of acceptable size and shape, but a solemn obligation imposed by the Congress and enforceable by every deserving litigant. Because I believe that the Court here shirks that duty, I dissent from the opinion of the Court.

       Section 18-302 states:
      “A devise or bequest of real or personal property to a minister, priest, rabbi, public teacher, or preacher of the gospel, as such, or to a religious sect, order or denomination, or to or for the support, use, or benefit thereof, or in trust therefor, is not valid unless it is made at least 30 days before the death of the testator.”
      This provision originated in the Organic Act of 1801, 2 Stat. 103, ch. 15, § 1. It was amended by Congress as recently as 1965. 79 Stat. 688.

       The Superior Court opinion is unpublished. The opinion of the Court of Appeals appears at Estate of French, 365 A. 2d 621 (1976).
      Stressing that the statute “is directed only to religious groups and practitioners,” the Superior Court held the statute to be “an invalid infringement of the free exercise of religion provisions of the First Amendment” and “invalid as a denial of due process guaranteed by the Fifth Amendment.”
      The D. C. Court of Appeals invalidated the statute only under the Due Process Clause of the Fifth Amendment. The majority concluded “that the classification established by §18-302 [religious legatees versus all others] has no rational relationship to the purpose of the legislation and hence denies religious legatees equal protection of the law.” Id., at 624.
      Six States have somewhat similar statutes, although none of them is restricted to religious bequests and devises. Fla. Stat. § 732.803 (1976); Ga. Code § 113-107 (1975); Idaho Code § 15-2-615 (Supp. 1977); Miss. Code Ann. § 91-5-31 (1973); Mont. Rev. Codes Ann. § 91-142 (1964); Ohio Rev. Code Ann. §2107.06 (1976). As stated above, the D. C. statute’s singular focus on religious beneficiaries is apparently what prompted the Superior Court and the Court of Appeals to declare it unconstitutional. Thus the decisions of the trial and appellate courts in this case do not necessarily raise doubts about the constitutionality of the somewhat similar statutes of the other six jurisdictions.

       Title 28 U. S. C. § 1257 states:
      “Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court as follows:
      “(1) By appeal, where is drawn in question the validity of a treaty or statute of the United States and the decision is against its validity.
      “(2) By appeal, where is drawn in question the validity of a statute of any state on the ground of its' being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity.
      “(3) By writ of certiorari, where the validity of a treaty or statute of the United States is drawn in question or where the validity of a State statute is drawn in question on the ground of its being repugnant to the Constitution, treaties or laws of the United States, or where any title, right, privilege or immunity is specially set up or claimed under the Constitution, treaties or statutes of, or commission held or authority exercised under, the United States.
      “For the purposes of this section, the term 'highest court of a State’ includes the District of Columbia Court of Appeals.”

       The jurisdiction of the local courts substantially overlapped that of the federal courts in the District before 1970. See Palmore v. United States, 411 U. S. 389, 392 n. 2 (1973). Appeals from all these courts were channeled through the Court of Appeals for the District of Columbia, which became the United States Court of Appeals for the District of Columbia Circuit in 1934. Ch. 426, 48 Stat. 926.

       Title 28 U. S. C. § 1254 states:
      “Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods:
      “(1) By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree;
      “(2) By appeal by a party relying on a State statute held by a court of appeals to be invalid as repugnant to the Constitution, treaties or laws of the United States, but such appeal shall preclude review by writ of certiorari at the instance of such appellant, and the review on appeal shall be restricted to the Federal questions presented;
      “(3) By certification at any time by a court of appeals of any question of law in any civil or criminal case as to which instructions are desired, and upon such certification the Supreme Court may give binding instructions or require the entire record to be sent up for decision of the entire matter in controversy.”
      Section 1254 was largely derived from §§ 239 and 240 of the Judiciary Act of 1925, 43 Stat. 938.
      Before 1925, there was a right of appeal to the Supreme Court from the Court of Appeals of the District of Columbia (predecessor to the United States Court of Appeals) in cases involving the constitutionality of local statutes, but not in cases involving the coristruetion of local statutes. This rule arose from a somewhat strained construction given the jurisdictional statute of 1911, 36 Stat. 1159, § 250. Paragraph three of that section provided for appeals from the District's courts in “cases involving .. . the constitutionality of any law of the United States . . . .” Paragraph six provided for appeals in “cases in which the construction of any law of the United States is drawn in question by the defendant.” The Court construed the same words- — -“any law of the United States”— differently in the two paragraphs.
      In American Security & Trust Co. v. District of Columbia Comm’rs, 224 U. S. 491 (1912), the Court concluded that a congressional Act applicable solely to the District of Columbia was not a “law of the United States” for purposes of paragraph six. Mr. Justice Holmes’ opinion for the Court reasoned that “all cases in the District arise under acts of Congress and probably it would require little ingenuity to raise a question of construction in almost any one of them.” By restricting paragraph six to laws of national scope, the Court thought that its jurisdiction would be “confined to what naturally and properly belongs to it.” Id., at 494-495.
      In Heald v. District of Columbia, 254 U. S. 20 (1920), the Court construed paragraph three to allow appeals in cases involving the constitutionality of local statutes. This paragraph re-enacted “provisions of prior statutes which had been construed as conveying authority to review controversies concerning the constitutional power of Congress to enact local statutes.” Id., at 22-23. Although it meant interpreting the identical words in the same jurisdictional statute in different ways, the Court held that the prior construction should continue “in the absence of plain implication to the contrary.” Id., at 23.

       Or by certification. See 28 U. S. C. § 1254 (3), set out in n. 5, supra. Some cases arising in the District reached this Court by routes other than § 1254. In Shapiro v. Thompson, 394 U. S. 618 (1969), the Court heard direct appeals from several three-judge District Court decisions, one of them a decision in the District of Columbia holding a D. C. Code provision unconstitutional. After noting that 28 U. S. C. § 2282 (which has since been repealed) required a three-judge court to hear a-challenge to the constitutionality of “any Act of Congress,” the Court without further discussion concluded that it saw “no reason to make an exception for Acts of Congress pertaining to the District of Columbia.” 394 U. S., at 625 n. 4.
      In United States v. Vuitch, 402 U. S. 62 (1971), the Court reviewed a District Court judgment holding a criminal provision of the D. C. Code unconstitutional. The United States had taken a direct appeal to the Supreme Court under 18 U. S. C. §3731 (1964 ed.), which had been recently amended, but which was still applicable to that case. Section 3731 allowed direct appeals “in all criminal cases . . . dismissing any indictment . . . where such decision ... is based upon the invalidity ... of the statute upon which the indictment ... is founded.” By a margin of 5-4, the Court held that the word “statute” in § 3731 encompassed D. C. Code provisions. Stressing the nationwide confusion surrounding criminal statutes like the one in question, the Court reasoned that the purpose underlying § 3731 “would not be served by our refusing to decide this case now after it has been orally argued.” 402 U. S., at 66. Writing for the four dissenters, Mr. Justice Harlan attributed the Court’s expansive reading of this jurisdictional provision to the fact that it had been amended and would have no effect upon subsequent cases. Id., at 93.
      In both these cases, the Court concluded that D. C. Code provisions were federal statutes for purposes of the applicable appellate provisions. However, each jurisdictional provision is to be interpreted in the light of its own antecedents, purposes, and context. See American Security & Trust Co. v. District of Columbia Comm’rs, supra. The special circumstances of these two cases thus render them of little aid in the task of construing § 1257 (1).

       84 Stat. 473.

       84 Stat. 475, § 111.

       84 Stat. 590, § 172. See n. 3, supra.

       Hearings on S. 1066, S. 1067, S. 1214, S. 1215, S. 1711, and S. 2601 (Reorganization of the District of Columbia Courts) before the Subcommittee on Improvements in Judicial Machinery of the Senate Committee on the Judiciary, 91st Cong., 1st Sess., 1159 (1969). The draft of the bill offered by the administration apparently had used the word “appeal” in the broad sense of direct review. The provision was later revised to reflect that intention:
      “Final judgments and decrees of the District of Columbia Court of Appeals are reviewable by the Supreme Court of the United States in accordance with section 1257 of title 28, United States Code.” 84 Stat. 475.

       Cf. n. 6, supra.

         As part of the 1970 Court Reform Act, Congress enacted 28 U. S. C. § 1363, which provides:
      “For the purposes of this chapter, references to laws of the United States or Acts of Congress do not include laws applicable exclusively to the District of Columbia.”
      Chapter 85 of Title 28, to which § 1363 refers, governs the jurisdiction of the United States district courts. The enactment of this section hardly implies that Congress must have intended that references to “laws of the United States” found in all other jurisdictional chapters and sections (including § 1257) would include provisions of the D. C. Code.
      Before 1970, the district courts had jurisdiction over some cases arising under D. C. Code provisions. See n. 4, supra. This jurisdiction rested on three jurisdictional provisions of the D. C. Code (§§ 11-521, 11-522, 11-523 (1967)) and on various jurisdictional provisions found in ch. 85, many of which referred to “statutes of the United States” or “Acts of Congress.” The 1970 Act repealed these three jurisdictional provisions of the D. C. Code and also enacted 28 U. S. C. § 1363 as a conforming amendment to assure the removal from the jurisdiction of the District Court for the District of Columbia of those cases arising under D. C. Code provisions. In view of its limited focus, the enactment of § 1363 cannot rationally support the inference that Congress examined other jurisdictional provisions and decided, as to them, that references to “statutes of the United States” should include D. C. Code provisions. Such an inference would be especially tenuous if applied to § 1257, because § 1257 did not previously govern eases questioning the validity of D. C. Code provisions. See supra, at 66. In any event, a clearer indication of congressional intent than this sort of negative implication is required to extend this Court’s mandatory appellate jurisdiction.

       It is more the nature of the D. C. Code than its limited geographical impact that distinguishes it from other federal statutes. Unlike most congressional enactments, the Code is a comprehensive set of laws equivalent to those enacted by state and local governments having plenary power to legislate for the general welfare of their citizens.

       Of course, 1257 (1) would be applicable if the District of Columbia Court of Appeals should invalidate a federal law other than a provision of the D. C. Code.

       Treating “the papers whereon the appeal was taken ... as a petition for writ of certiorari,” 28 U. S. C. § 2103, we deny the petition. See n. 2, supra.

       See 2 Stat. 106 (judgments of the Circuit Court of the District of Columbia in excess of $100 could be reviewed by appeal or writ of error); ch. 39, 3 Stat. 261 (raising jurisdictional amount to $1,000); 12 Stat. 764 (decisions of the Supreme Court of the District of Columbia, which replaced the Circuit Court, would be reviewable on the same basis).

       The Court found that the validity of the Act involved there had not been drawn into question.

       Between 1925 and 1970 all cases from local District of Columbia courts were channeled through the Court of Appeals for the District of Columbia, which later became the United States Court of Appeals for the District of Columbia Circuit. See ante, at 61 n. 4. Since that court was clearly a federal court composed of judges tenured under Art. Ill of the Constitution, there was no need for mandatory review of decisions of that court invalidating federal statutes. Hence its decisions were reviewable in this Court on the same basis as the decisions of the other federal courts of appeals. 43 Stat. 938.

       As the majority recognizes, see ante, at 63-64, n. 6, this Court has recently ruled in other contexts that D. C. Code provisions are “statutes of the United States,” United States v. Vuitch, 402 U. S. 62 (1971) (criminal appeal statute), and “Acts of Congress,” Shapiro v. Thompson, 394 U. S. 618 (1969) (three-judge court appeals). While these decisions may not be directly relevant here, they confirm the traditional understanding that— in the absence of contrary congressional command — congressional enactments dealing with the District of Columbia are to be treated like other federal laws.

       The majority argues that, as of 1970, no general right of appeal existed from District of Columbia courts to this Court in constitutional challenges to D. C. Code provisions and that "it cannot be assumed that Congress intended to enlarge this Court’s mandatory appellate jurisdiction by simply shifting review of District of Columbia court judgments from § 1254 to § 1257.” Ante, at 66. This argument is flawed for two reasons. First, as the majority opinion itself concedes, the shift from § 1254 to § 1257 did enlarge this Court’s mandatory appellate jurisdiction, by including cases arising in the District of Columbia which invalidated federal statutes of national scope. See ante, at 68 n. 14. Second, and more importantly, the shift in review provisions was not a “simple” or technical change, but rather basic to the whole concept of the D. C. court reorganization. The law established the District of Columbia court system as an independent, local court system. Congress amended § 1257 to make that point unmistakably clear. By virtue of inclusion within § 1257, the decisions of the District of Columbia Court of Appeals would no longer be filtered through the United States Court of Appeals, but would be appeal-able as state decisions to the United States Supreme Court. Since the scope of appellate jurisdiction specified by § 1257 for state-court decisions is different from that provided under § 1254 for decisions of the United States courts of appeals, there can be little doubt that Congress effected a change in this Court’s mandatory appellate jurisdiction.

       The majority’s construction of “statute of the United States” in § 1257 (1) is also disturbing because it may ultimately undermine this Court’s certiorari jurisdiction over cases from the D. C. Court of Appeals. The majority does not explain its rationale for assuming certiorari jurisdiction in this case. Presumably it views this case as one in which a “right” has been “specially set up or claimed under the Constitution,” within the meaning of § 1257 (3). However, in cases involving the construction of federal laws dealing with the District of Columbia, that approach would not be available. While there is provision in § 1257 (3) for cases in which the right is derived from a “statute” of the United States, invocation of that provision would require that the Court interpret identical words in the jurisdictional statute in two different ways, a practice the majority evidently disapproves. See ante, at 62-63, n. 5. Thus, this Court may ultimately be left with no jurisdiction whatsoever over cases in which the D. C. Court of Appeals construes a federal statute dealing with the District of Columbia. It is highly improbable that Congress would have given such free rein in interpreting federal laws to a court which it regarded as “the highest court of a State” or that it would have so restricted this Court's appellate jurisdiction without expressly saying so.

       The majority opinion argues that no appeal is needed in the circumstances of this case because the “uniformity of national law is not threatened” when a local court invalidates a federal law “of exclusively local application.” See ante, at 67, 68. But there are a great number of federal laws which, though applicable only to a limited area, deal with a vital national interest. E. g., Point Reyes National Seashore Act of 1976, 90 Stat. 2515 (designating as wilderness 33,000 acres of land in California). Just as an appeal is allowed to protect these statutes against constitutional attack, an appeal should be allowed for federal legislation dealing with the Nation’s Capital.


source: Caselaw Access Project

author: Mr. Justice Brennan MR. Justice Blackmun,

license: Public Domain

text:
    COMMISSIONER OF INTERNAL REVENUE v. KOWALSKI et ux.
    No. 76-1095.
    Argued October 12, 1977
    Decided November 29, 1977

      Stuart A. Smith argued the cause for petitioner. With him on the brief were Solicitor General McCree and Acting Assistant Attorney General Baum.

      Carl B. Cordes argued the cause for respondents. With him on the brief was Herrick K. Lidstone.

   Mr. Justice Brennan

delivered the opinion of the Court.

This case presents the question whether cash payments to state police troopers, designated as meal allowances, are included in gross income under § 61 (a) of the Internal Revenue Code of 1954, 26 U. S. C. § 61 (a), and, if so, are otherwise excludable under § 119 of the Code, 26 U. S. C. § 119.

I

The pertinent facts axe not in dispute. Respondent is a state police trooper employed by the Division of State Police of the Department of Law and Public Safety of the State of New Jersey. During 1970, the tax year in question, he received a base salary of $8,739.38, and an additional $1,697.54 designated as an allowance for meals.

The State instituted the cash meal allowance for its state police officers in July 1949. Prior to that time, all troopers were provided with midshift meals in kind at various meal stations located throughout the State. A trooper unable to eat at an. official meal station could, however, eat at a restaurant and obtain reimbursement. The meal-station system proved unsatisfactory to the State because it required troopers to leave their assigned areas of patrol unguarded for extended periods of time. As a result, the State closed its meal stations and instituted a cash-allowance system. Under this system, troopers remain on call in their assigned patrol areas during their midshift break. Otherwise, troopers are not restricted in any way with respect to where they may eat in the patrol area and, indeed, may eat at home if it is located within that area. Troopers may also bring their midshift meal to the job and eat it in or near their patrol cars.

The meal allowance is paid biweekly in advance and is included, although separately stated, with the trooper’s salary. The meal-allowance money is also separately accounted for in the State’s accounting system. Funds are never commingled between the salary and meal-allowance accounts. Because of these characteristics of the meal-allowance system, the Tax Court concluded that the “meal allowance was not intended to represent additional compensation.” 65 T. C. 44, 47 (1975).

Notwithstanding this conclusion, it is not disputed that the meal allowance has many features inconsistent with its characterization as a simple reimbursement for meals that would otherwise have been taken at a meal station. For example, troopers are not required to spend their meal allowances on their midshift meals, nor are they required to account for the manner in which the money is spent. With one limited exception not relevant here, no reduction in the meal allowance is made for periods when a trooper is not on patrol because, for example, he is assigned to a headquarters building or is away from active duty on vacation, leave, or sick leave. In addition, the cash allowance for meals is described on a state police recruitment brochure as an item of salary to be received in addition to an officer’s base salary and the amount of the meal allowance is a subject of negotiations between the State and the police troopers’ union. Finally, the amount of an officer’s cash meal allowance varies with his rank and is included in his gross pay for purposes of calculating pension benefits.

On his 1970 income tax return, respondent reported $9,066 in wages. That amount included his salary plus $326.45 which represented cash meal allowances reported by the State on respondent’s Wage and Tax Statement (Form W-2). The remaining amount of meal allowance, $1,371.09, was not reported. On audit, the Commissioner determined' that this amount should have been included in respondent’s 1970 income and assessed a deficiency.

Respondent sought review in the United States Tax Court, arguing that the cash meal allowance was not compensatory but was furnished for the convenience of the employer and hence was not “income” within the meaning of § 61 (a) and that, in any case, the allowance could be excluded under § 119. In a reviewed decision, the Tax Court, with six dissents, held that the cash meal payments were income within the meaning of § 61 and, further, that such payments were not excludable under § 119. 65 T. C. 44 (1975). The Court of Appeals for the Third Circuit, in a per curiam opinion, held that its earlier decision in Saunders v. Commissioner, 215 F. 2d 768 (1954), which determined that cash payments under the New Jersey meal-allowance program were not taxable, required reversal. 544 F. 2d 686 (1976). We granted certiorari to resolve a conflict among the Courts of Appeals on the question. 430 U. S. 944 (1977). We reverse.

II

A

The starting point in the determination of the scope of “gross income” is the cardinal principle that Congress in creating the income tax intended “to use the full measure of its taxing power.” Helvering v. Clifford, 309 U. S. 331, 334 (1940); accord, Helvering v. Midland Mutual Life Ins. Co., 300 U. S. 216, 223 (1937); Douglas v. Willcuts, 296 U. S. 1, 9 (1935); Irwin v. Gavit, 268 U. S. 161, 166 (1925). In applying this principle to the construction of § 22 (a) of the Internal Revenue Code of 1939 this Court stated that “Congress applied no limitations as to the source of taxable receipts, nor restrictive labels as to their nature [, but intended] to tax all gains except those specifically exempted.” Commissioner v. Glenshaw Glass Co., 348 U. S. 426, 429-430 (1955), citing Commissioner v. Jacobson, 336 U. S. 28, 49 (1949), and Helvering v. Stockholms Enskilda Bank, 293 U. S. 84, 87-91 (1934). Although Congress simplified the definition of gross income in § 61 of the 1954 Code, it did not intend thereby to narrow the scope of that concept. See Commissioner v. Glenshaw Glass Co., supra, at 432, and n. 11; H. R. Rep. No. 1337, 83d Cong., 2d Sess., A18 (1954); S. Rep. No. 1622, 83d Cong., 2d Sess., 168 (1954). In the absence of a specific exemption, therefore, respondent’s meal-allowance payments are income within the meaning of § 61 since, like the payments involved in Glenshaw Glass Co., the payments are “undeniably] accessions to wealth, clearly realized, and over which the '[respondent has] complete dominion.” Commissioner v. Glenshaw Glass Co., supra, at 431. See also Commissioner v. LoBue, 351 U. S. 243, 247 (1956); Van Rosen v. Commissioner, 17 T. C. 834, 838 (1951).

Respondent contends, however, that § 119 can be construed to be a specific exemption covering the meal-allowance payments to New Jersey troopers. Alternatively, respondent argues that notwithstanding § 119 a specific exemption may be found in a line of lower-court cases and administrative rulings which recognize that benefits conferred by an employer on an employee “for the convenience of the employer” — at least when such benefits are not “compensatory” — are not income within the meaning of the Internal Revenue Code. In responding to these contentions, we turn first to § 119. Since we hold that § 119 does not cover cash payments of any kind, we then trace the development over several decades of the convenience-of-the-employer doctrine as a determinant of the tax status of meals and lodging, turning finally to the question whether the doctrine as applied to meals and lodging survives the enactment of the Internal Revenue Code of 1954.

B

Section 119 provides that an employee may exclude from income “the value of any meals . . . furnished to him by his employer for the convenience of the emloyer, but only if . . . the meals are furnished on the business premises of the employer By its terms, § 119 covers meals furnished by the employer and not cash reimbursements for meals. This is not a mere oversight. As we shall explain at greater length below, the form of § 119 which Congress enacted originated in the Senate and the Report accompanying the Senate bill is very clear: “Section 119 applies only to meals or lodging furnished in kind.” S. Rep. No. 1622, 83d Cong., 2d Sess., 190 (1954). See also Treas. Reg. § 1.119-1 (c)(2), 26 CFR § 1.119-1 (1977). Accordingly, respondent’s meal-allowance payments are not subject to exclusion under § 119.

C

The convenience-of-the-employer doctrine is not a tidy one. The phrase “convenience of the employer” first appeared in O. D. 265, 1 Cum. Bull. 71 (1919), in a ruling exempting from the income tax board and lodging furnished seamen aboard ship. The following year, T. D. 2992, 2 Cum. Bull. 76 (1920), was issued and added a convenience-of-the-employer section to Treas. Regs. 45, Art. 33, the income tax regulations then in effect. As modified, Art. 33 stated:

“Art. 33. Compensation paid other than in cash. . . . When living quarters such as camps are furnished to employees for the convenience of the employer, the ratable value need not be added to the cash compensation of the employee, but where a person receives as compensation for services rendered a salary and in addition thereto living quarters, the value to such person of the quarters furnished constitutes income subject to tax. . . .”

While T. D. 2992 extended the convenience-of-the-employer test as a general rule solely to items received in kind, O. D. 514, 2 Cum. Bull. 90 (1920), extended the convenience-of-the-employer doctrine to cash payments for “supper money.”

The rationale of both T. D. 2992 and O. D. 514 appears to have been that benefits conferred by an employer on an employee in the designated circumstances were not compensation for services and hence not income. Subsequent rulings equivocate on whether the noncompensatory character of a benefit could be inferred merely from its characterization by the employer or whether there must be additional evidence that employees are granted a benefit solely because the employer’s business could not function properly unless an employee was furnished that benefit on the employer’s premises. O. D. 514, for example, focuses only on the employer’s characterization. Two rulings issued in 1921, however, dealing respectively with cannery workers and hospital employees, emphasize the necessity of the benefits to the functioning of the employer’s business, and this emphasis was made the authoritative interpretation of the convenience-of-the-employer provisions of the regulations in Mim. 5023, 1940-1 Cum. Bull. 14.

Adding complexity, however, is Mim. 6472, 1950-1 Cum. Bull. 15, issued in 1950. This mimeograph states in relevant part:

“The 'convenience of the employer’ rule is simply an administrative test to be applied only in cases in which the compensatory character of . . . benefits is not otherwise determinable. It follows that the rule should not be applied in any case in which it is evident from the other circumstances involved that the receipt of quarters or meals by the employee represents compensation for services rendered.” Ibid,

Mimeograph 6472 expressly modified all previous rulings which had suggested that meals and lodging could be excluded from income upon a simple finding that the furnishing of such benefits was necessary to allow an employee to perform his duties properly. However, the ruling apparently did not affect O. D. 514, which, as noted above, creates an exclusion from income based solely on an employer’s characterization of a payment as noncompensatory.

Coexisting with the regulations and administrative determinations of the Treasury, but independent of them, is a body of case law also applying the convenience-of-the-employer test to exclude from an employee’s statutory income benefits conferred by his employer.

An early case is Jones v. United States, 60 Ct. Cl. 552 (1925). There the Court of Claims ruled that neither the value of quarters provided an Army officer for nine months of a tax year nor payments in commutation of quarters paid the officer for the remainder of the year were includable in income. The decision appears to rest both on a conclusion that public quarters by tradition and law were not “compensation received as such” within the meaning of § 213 of the Revenue Act of 1921, 42 Stat. 237, and also on the proposition that “public quarters for the housing of. . . officers is as much a military necessity as the procurement of implements of warfare or the training of troops.” 60 Ct. Cl., at 569; see id., at 565-568. The Court of Claims, in addition, rejected the argument that money paid in commutation of quarters was income on the ground that it was not “gain derived . . . from labor” within the meaning of Eisner v. Macomber, 252 U. S. 189 (1920), but apparently was at most a reimbursement to the officer for furnishing himself with a necessity of his job in those instances in which the Government found it convenient to leave the task of procuring quarters to an individual officer. 60 Ct. Cl., at 574-578.

Subsequent judicial development of the convenience-of-the-employer doctrine centered primarily in the Tax Court. In two reviewed cases decided more than a decade apart, Benaglia v. Commissioner, 36 B. T. A. 838 (1937), and Van Rosen v. Commissioner, 17 T. C. 834 (1951), that court settled on the business-necessity rationale for excluding food and lodging from an employee’s income. Van Rosen’s unanimous decision is of particular interest in interpreting the legislative history of the 1954 recodification of the Internal Revenue Code since it predates that recodification by only three years. There, the Tax Court expressly rejected any reading of Jones, supra, that would make tax consequences turn on the intent of the employer, even though the employer in Van Rosen as in Jones was the United States and, also as in Jones, the subsistence payments involved in the litigation were provided by military regulation. In addition, Van Rosen refused to follow the Jones holding with respect to cash allowances, apparently on the theory that a civilian who receives cash allowances for expenses otherwise nondeductible has funds he can “take, appropriate, use and expend,” 17 T. C., at 838, in substantially the same manner as “any other civilian employee whose employment is such as to permit him to live at home while performing the duties of his employment.” Id., at 836; see id., at 839-840. It is not clear from the opinion whether the last conclusion is based on notions of equity among taxpayers or is simply an evidentiary conclusion that, since Van Rosen was allowed to live at home while performing his duties, there was no business purpose for the furnishing of food and lodging.

Two years later, the Tax Court in an unreviewed decision in Doran v. Commissioner, 21 T. C. 374 (1953), returned in part to the employer’s-characterization rationale rejected by Van Rosen. In Doran, the taxpayer was furnished lodging in kind by a state school. State law required the value of the lodging to be included in the employee’s compensation. Although the court concluded that the lodging was furnished to allow the taxpayer to be on 24-hour call, a reason normally sufficient to justify a convenience-of-the-employer exclusion, it required the value of the lodging to be included in income on the basis of the characterization of the lodging as compensation under state law. The approach taken in Doran is the same as that in Mim. 6472, supra. However, the Court of Appeals for the Second Circuit, in Diamond v. Sturr, 221 F. 2d 264 (1955), on facts indistinguishable from Doran, reviewed the law prior to 1954 and held that the business-necessity view of the convenience-of-the-employer test, “having persisted through the interpretations of the Treasury and the Tax Court throughout years of re-enactment of the Internal Revenue Code,” was the sole test to be applied. 221 F. 2d, at 268.

D

Even if we assume that respondent’s meal-allowance payments could have been excluded from income under the 1939 Code pursuant to the doctrine we have just sketched, we must nonetheless inquire whether such an implied exclusion survives the 1954 recodification of the Internal Revenue Code. Cf. Helvering v. Winmill, 305 U. S. 79, 83 (1938). Two provisions of the 1954 Code are relevant to this inquiry: § 119 and § 120, now repealed, which allowed police officers to exclude from income subsistence allowances of up to $5 per day.

In enacting § 119, the Congress was determined to “end the confusion as to the tax status of meals and lodging furnished an employee by his employer.” H. R. Rep. No. 1337, 83d Cong., 2d Sess., 18 (1954); S. Rep. No. 1622, 83d Cong., 2d Sess., 19 (1954). However, the House and Senate initially differed on the significance that should be given the convenience-of-the-employer doctrine for the purposes of § 119. As explained in its Report, the House proposed to exclude meals from gross - income “if they [were] furnished at the place of employment and the employee [was] required to accept them at the place of employment as a condition of his employment.” H. R. Rep. No. 1337, supra, at 18; see H. R. 8300, 83d Cong., 2d Sess., § 119 (1954). Since no reference whatsoever was made to the concept, the House view apparently was that a statute “designed to end the confusion as to the tax status of meals and lodging furnished an employee by his employer” required complete disregard of the convenience-of-the-employer doctrine.

The Senate, however, was of the view that the doctrine had at least a limited role to play. After noting the existence of the doctrine and the Tax Court’s reliance on state law to refuse to apply it in Doran v. Commissioner, supra, the Senate Report states:

“Your committee believes that the House provision is ambiguous in providing that meals or lodging furnished on the employer’s premises, which the employee is required to accept as a condition of his employment, are excludable from income whether or not furnished as compensation. Your committee has provided that the basic test of exclusion is to be whether the meals or lodging are furnished primarily for the convenience of the employer (and thus excludable) or whether they were primarily for the convenience of the employee (and therefore taxable). However, in deciding whether they were furnished for the convenience of the employer, the fact that a State statute or an employment contract fixing the terms of the employment indicate the meals or lodging are intended as compensation is not to be determinative. This means that employees of State institutions who are required to live and eat on the premises will not be taxed on the value of the meals and lodging even though the State statute indicates the meals and lodging are part of the employee’s compensation.” S. Rep. No. 1622, supra, at 19.

In a technical a]}pendix, the Senate Report further elaborated:

“Section 119 applies only to meals or lodging furnished in kind. Therefore, any cash allowances for meals or lodging received by an employee will continue to be includible in gross income to the extent that such allowances constitute compensation.” Id., at 190-191.

After conference, the House acquiesced in the Senate’s version of § 119. Because of this, respondent urges that § 119 as passed did not discard the convenience-of-the-employer doctrine, but indeed endorsed the doctrine shorn of the confusion created by Mim. 6472 and cases like Doran. Respondent further argues that, by negative implication, the technical appendix to the Senate Report creates a.class of noncom-pensatory cash meal payments that are to be excluded from income. We disagree.

The Senate unquestionably intended to overrule Doran and rulings like Mim. 6472. Equally clearly the Senate refused completely to abandon the convenience-of-the-employer doctrine as the House wished to do. On the other hand, the Senate did not propose to leave undisturbed the convenience-of-the-employer doctrine as it had evolved' prior to the promulgation of Mim. 6472. The language of § 119 quite plainly rejects the reasoning behind rulings like O. D. 514, see n. 15, supra, which rest on the employer’s characterization of the nature of a payment. This conclusion is buttressed by the Senate’s choice of a term of art, “convenience of the employer,” in describing one of the conditions for exclusion under § 119. In so choosing, the Senate obviously intended to adopt the meaning of that term as it had developed over time, except, of course, to the extent § 119 overrules decisions like Doran. As we have noted above, Van Rosen v. Commissioner, 17 T. C. 834 (1951), provided the controlling court definition at the time of the 1954 recodification and it expressly rejected the Jones theory of “convenience of the employer” — and by implication the theory of O. D. 514— and adopted as the exclusive rationale the business-necessity theory. See 17 T. C., at 838-840. The business-necessity theory was also the controlling administrative interpretation of “convenience of the employer” prior to Mim. 6472. See supra, at 85-86, and n. 19. Finally, although the Senate Report did not expressly define “convenience of the employer” it did describe those situations in which it wished to reverse the courts and create an exclusion as those where “an employee must accept . . . meals or lodging in order properly to perform his duties.” S. Rep. No. 1622, supra, at 190.

As the last step in its restructuring of prior law, the Senate adopted an additional restriction created by the House and not theretofore a part of the law, which required that meals subject to exclusion had to be taken on the business premises of the employer. Thus § 119 comprehensively modified the prior law, both expanding and contracting the exclusion for meals and lodging previously provided, and it must therefore be construed as its draftsmen obviously intended it to be— as a replacement for the prior law, designed to “end [its] confusion.”

Because § 119 replaces prior law, respondent’s further argument — that the technical appendix in the Senate Report recognized the existence under § 61 of an exclusion for a class of noncompensatory cash payments — is without merit. If cash meal allowances could be excluded on the mere showing that such payments served the convenience of the employer, as respondent suggests, then cash would be more widely excluded from income than meals in kind, an extraordinary result given the presumptively compensatory nature of cash payments and the obvious intent of § 119 to narrow the circumstances in which meals could be excluded. Moreover, there is no reason to suppose that Congress would have wanted to recognize a class of excludable cash meal payments. The two precedents for the exclusion of cash — O. D. 514 and Jones v. United States — both rest on the proposition that the convenience of the employer can be inferred from the characterization given the cash payments by the employer, and the heart of this proposition is undercut by both the language of § 119 and the Senate Report. Jones also rests on Eisner v. Macomber, 252 U. S. 189 (1920), but Congress had no reason to read Eisner’s, definition of income into § 61 and, indeed, any assumption that Congress did is squarely at odds with Commissioner v. Glenshaw Class Co., 348 U. S. 426 (1955). See id., at 430-431. Finally, as petitioner suggests, it is much more reasonable to assume that the cryptic statement in the technical appendix — “cash allowances . . . will continue to be includable in gross income to the extent that such allowances constitute compensation” — was meant to indicate only that meal payments otherwise deductible under § 162 (a)(2) of the 1954 Code were not affected by § 119.

Moreover, even if we were to assume with respondent that cash meal payments made for the convenience of the employer could qualify for an exclusion notwithstanding the express limitations upon the doctrine embodied in § 119, there would still be no reason to allow the meal .allowance here to be excluded. Under the pre-1954 convenience-of-the-employer doctrine respondent’s allowance is indistinguishable from that in Van Rosen v. Commissioner, supra, and hence it is income. Indeed, the form of the meal allowance involved here has drastically changed from that passed on in Saunders v. Commissioner, 215 F. 2d 768 (CA3 1954), relied on by the Third Circuit below, see supra, at 82, and in its present form the allowance is not excludable even under Saunders’ analysis. In any case, to avoid the completely unwarranted result of creating a larger exclusion for cash than kind, the meal allowances here would have to be demonstrated to be necessary to allow respondent “properly to perform his duties.” There is not even a suggestion on this record of any such necessity.

Finally, respondent argues that it is unfair that members of the military may exclude their subsistence allowances from income while respondent cannot. While this may be so, arguments of equity have little force in construing the boundaries of exclusions and deductions from income many of which, to be administrable, must be arbitrary. In any case, Congress has already considered respondent's equity argument and has rejected it in the repeal of § 120 of the 1954 Code. That provision as enacted allowed state troopers like respondent to exclude from income up to $5 of subsistence allowance per day. Section 120 was repealed after only four years, however, because it was “inequitable since there are many other individual taxpayers whose duties also require them to incur subsistence expenditures regardless of the tax effect. Thus, it appears that certain police officials by reason of this exclusion are placed in a more favorable position taxwise than other individual income taxpayers who- incur the same types of expense. . . H. R. Rep. No. 775, 85th Cong., 1st Sess., 7 (1957).

Reversed.

MR. Justice Blackmun,

with whom The Chief Justice joins, dissenting.

More than a decade ago the United States Court of Appeals for the Eighth Circuit, in United States v. Morelan, 356 F. 2d 199 (1966), held that the $3-per-day subsistence allowance paid Minnesota state highway patrolmen was excludable from gross income under § 119 of the Internal Revenue Code of 1954, 26 U. S. C. §119. It held, alternatively, that if the allowance were includable in gross income, it was deductible as an ordinary and necessary meal-cost trade or business expense under § 162 (a) (2) of the Code, 26 U. S. C. § 162 (a) (2). I sat as a Circuit Judge on that case. I was happy to join Chief Judge Vogel's opinion because I then felt, and still do, that it was correct on both grounds. Certainly, despite the usual persistent Government opposition in as many Courts of Appeals as were available, the ruling was in line with other authority at the appellate level at that time. Two cases, Magness v. Commissioner, 247 F. 2d 740 (CA5 1957), cert. denied, 355 U. S. 931 (1958), and Hyslope v. Commissioner, 21 T. C. 131 (1953), were distinguished. 356 F. 2d, at 207.

On December 11, 1967, however, this Court by a 5-3 vote decided United States v. Correll, 389 U. S. 299, restricting to overnight trips the travel-expense deduction for meal costs under §162 (a)(2). That decision, of course, disapproved Mor elan’s, alternative ground for decision. I am frank to say that had I been a Member of this Court at the time Correll was decided, I would have joined its dissent, 389 U. S., at 307, for I fully agree with Mr. Justice Douglas’ observation there, joined by Justices Black and Fortas — an observation which, for me, is unanswerable and unanswered — that the Court, with a bow to the Government’s argument for administrative convenience, and conceding an element of arbitrariness, id., at 303, read the word “overnight” into § 162 (a)(2), a statute that speaks only in geographical terms.

The taxpayer in the present case, faced with Correll, understandably does not press the § 162 (a) (2) issue, but confines his defense to §§ 61 and 119.

I have no particular quarrel with the conclusion that the payments received by the New Jersey troopers constituted income to them under § 61. I can accept that, but my stance in Mor elan leads me to disagree with the Court’s conclusion that the payments are not excludable under § 119. The Court draws an in-cash or in-kind distinction. This has no appeal or persuasion for me because the statute does not speak specifically in such terms. It does no more than refer to “meals . . . furnished on the business premises of the employer,” and from those words the Court draws the in-kind consequence. I am not so sure. In any event, for me, as was the case in Mor elan, the business premises of the State of New Jersey, the trooper’s employer, are wherever the trooper is on duty in that State. The employer’s premises are statewide.

The Court in its opinion makes only passing comment, with a general reference to fairness, on the ironical difference in tax treatment it now accords to the paramilitary New Jersey state trooper structure and the federal military. The distinction must be embarrassing to the Government in its position here, for the Internal Revenue Code draws no such distinction. The Commissioner is forced to find support for it— support which the Court in its opinion in this case does not stretch to find — only from a regulation, Treas. Reg. § 1.61-2 (b), 26 CFR § 1.61-2 (b) (1977), excluding subsistence allowances granted the military, and the general references in 37 U. S. C. § 101 (25) (1970 ed., Supp. V), added by Pub. L. 93-419, § 1, 88 Stat. 1152, to “regular military compensation” and “Federal tax advantage accruing to the aforementioned allowances because they are not subject to Federal income tax.” This, for me, is thin and weak support for recognizing a substantial benefit for the military and denying it for the New Jersey state trooper counterpart.

I fear that state troopers the country over, not handsomely paid to begin with, will never understand today’s decision. And I doubt that their reading of the Court’s opinion — if, indeed, a layman can be expected to understand its technical wording — will convince them that the situation is as clear as the Court purports to find it.

       “§ 61. Gross income defined.
      “'(a) General definition.
      “Except as otherwise provided in this subtitle, gross income means all income from whatever source derived, including (but not limited to) the following items:
      “(1) Compensation for services, including fees, commissions, and similar items . . . .”

       “§ 119. Meals or lodging furnished for the convenience of the employer.
      “There shall be excluded from gross income of an employee the value of any meals or lodging furnished to him by his employer for the convenience of the employer, but only if—
      “(1) in the case of meals, the meals are furnished on the business premises of the employer ....
      “In determining whether meals ... are furnished for the convenience of the employer, the provisions of an employment contract or of a State statute fixing terms of employment shall not be determinative of whether the meals or lodging are intended as compensation.”

       References to “respondent” are to Robert J. Kowalski. Nancy A. Kowalski, also a respondent, is a party solely because she filed a joint return with her husband for the 1970 tax year.

         Respondent was entitled to $1,740 in meal allowances, see n. 7, infra, but for reasons not disclosed by the record received the lesser amount.

       While on active duty, New Jersey troopers are generally required to live in barracks. Meals furnished in kind at the barracks before or after a patrol shift are not involved in this case. Nor is the meal allowance intended to pay for meals eaten before or after a shift in those instances in which the trooper is not living in the barracks. However, because of the duration of some patrols, a trooper may be required to eat more than one meal per shift while on the road.

       The amount of the allowance is adjusted only when an officer is on military leave.

         Troopers, such as respondent, and other noncommissioned officers received $1,740 per year; lieutenants and captains received $1,776, majors $1,848, and the Superintendent $2,136.

       On October 1, 1970, the Division of State Police began to withhold income tax from amounts paid as cash meal allowances. No claim has been made that the change in the Division's withholding policy has any relevance for this case.

       A seventh judge concurred in the majority opinion with respect to §§ 61 and 119, but dissented on the ground that the meal allowance was deductible under § 162 (a) of the Code, see n. 30, infra, as “ordinary and necessary expenditures required as a part of petitioner’s duties.” 65 T. C., at 63. Since respondent has not made this contention here, we have no occasion to consider it.

       The Tax Court also determined that amounts of meal allowance attributable to respondent’s expenses while “away from home” as defined in § 162 (a) (2) of the Code, see n. 30, infra, were properly deducted from respondent’s income as travel expenses. See United States v. Correll, 389 U. S. 299 (1967). The Commissioner did not appeal from this holding.

       See Wilson v. United States, 412 F. 2d 694 (CA1 1969) (troopers’ subsistence allowance taxable); United States v. Keeton, 383 F. 2d 429 (CA10 1967) (per curiam) (troopers’ subsistence allowance nontaxable); United States v. Morelan, 356 F. 2d 199 (CA8 1966) (same); United States v. Barrett, 321 F. 2d 911 (CA5 1963) (same); Magness v. Commissioner, 247 F. 2d 740 (CA5 1957) (troopers’ subsistence allowance taxable), cert. denied, 355 U. S. 931 (1958); Saunders v. Commissioner, 215 F. 2d 768 (CA3 1954) (troopers’ meal allowance nontaxable). See also Ghastin v. Commissioner, 60 T. C. 264 (1973) (troopers’ subsistence allowance taxable); Hyslope v. Commissioner, 21 T. C. 131 (1953) (troopers’ meal allowance taxable).

       53 Stat. 9, as amended, ch. 59, 53 Stat. 574. This section provided:
      “(a) GENERAL DEFINITION.' — '’Gross income’ includes gains, profits, and income derived from salaries, wages, or compensation for personal service, ... or gains or profits and income derived from any source whatever.” (Emphasis added.)

       The House and Senate Reports state:
      “[Section 61] corresponds to section 22 (a) of the 1939 Code. While the language in existing section 22 (a) has been simplified, the all-inclusive nature of statutory gross income has not been affected thereby. Section 61 (a) is as broad in scope as section 22 (a).”

       Substantially identical language appeared in the income tax regulations on the date of the 1954 recodification of the Internal Revenue Code. See Treas. Regs. 111, § 29.22 (a)-3 (1943); Treas. Regs. 118, § 39.22 (a)-3 (1953).

       “ ‘Supper money’ paid by an employer to an employee, who voluntarily performs extra labor for his employer after regular business hours, such payment not being considered additional compensation and not being charged to the salary account, is considered as being paid for the convenience of the employer . . . .” (Emphasis added.)

       See n. 15, supra. O. D. 914, 4 Cum. Bull. 85 (1921), is another ruling that makes tax consequences turn on the intention of the employer. Under 0. D. 914, lodging furnished to employees of the Indian Service was determined to be income if the Department of the Interior charged such lodging to the appropriation from which compensation was normally paid ; otherwise, it was not. See also O. D. 11, 1 Cum. Bull. 66 (1919) (semble) (“maintenance” paid to Red Cross workers includable in income only to the extent it exceeds actual living expenses).

         “Where, from the location and nature of the work, it is necessary that employees engaged in fishing and canning be furnished with lodging and sustenance by the employer, the value of such lodging and sustenance may be considered as being furnished for the convenience of the employer and need not, therefore, be included in computing net income . . . .” O. D. 814, 4 Cum. Bull. 84, 84-85 (1921).

       “Where the employees of a hospital are subject to immediate service on demand at any time during the twenty-four hours of the day and on that account are required to accept quarters and meals at the hospital, the value of such quarters and meals may be considered as being furnished for the convenience of the hospital and does not represent additional compensation to the employees. On the other hand, where the employees . . . could, if they so desired, obtain meals and lodging elsewhere than in the hospital and yet perform the duties required of them by such hospital, the ratable value of the board and lodging furnished is considered additional compensation.” O. D. 915, 4 Cum. Bull. 85, 85-86 (1921).

       “3. As a general rule, the test of ‘convenience of the employer’ is satisfied if living quarters or meals are furnished to an employee who is required to accept such quarters and meals in order to perform properly his duties.” 1940-1 Cum. Bull., at 15, citing O. D. 915, supra, n. 18.

       See 1950-1 Cum. Bull., at 16.

       “The better and more accurate statement of the reason for the exclusion from the employee’s income of the value of subsistence and quarters furnished in kind is found, we think, in Arthur Benaglia, 36 B. T. A. 838, where it was pointed out that, on the facts, the subsistence and quarters were not supplied by the employer and received by the employee 'for his personal convenience^] comfort or pleasure, but solely because he could not otherwise perform the services required of him.’ In other words, though there was an element of gain to the employee, in that he received subsistence and quarters which otherwise he would have had to supply for himself, he had nothing he could take, appropriate, use and expend according to his own dictates, but rather, the ends of the employer’s business dominated and controlled, just as in the furnishing of a place to work and in the supplying of the tools and machinery with which to work. The fact that certain personal wants and needs of the employee were satisfied was plainly secondary and incidental to the employment.” Van Rosen v. Commissioner, 17 T. C., at 838.

       Van Rosen was a civilian ship captain employed by the United States Army Transportation Corps. Id., at 834. In this capacity, his pay and subsistence allowances were determined by the Marine Personnel Regulations of the Transportation Corps of the Army. Id., at 837. His principal argument in the Tax Court was the factual similarity of his case to Jones v. United States, 60 Ct. Cl. 552 (1925). See 17 T. C., at 837.

       See Benaglia v. Commissioner, 36 B. T. A. 838, 839-840 (1937); O. D. 915, supra, n. 18.

       See also Diamond v. Sturr, 116 F. Supp. 28 (NDNY 1953), rev’d, 221 F. 2d 264 (CA2 1955) (value of lodgings held taxable on same facts as Doran); Romer v. Commissioner, 28 T. C. 1228 (1957) (following Doran for tax years governed by 1939 Code); Dietz v. Commissioner, 25 T. C. 1255 (1956) (holding the value of an apartment to be includable in income under 1939 Code where the apartment was the only consideration received by the taxpayers for performing janitorial services).

       “Sec. 120. STATUTORY SUBSISTENCE ALLOWANCE RECEIVED BY POLICE.
      “(a) General Rule. — Gross income does not include any amount received as a statutory subsistence allowance by an individual who is employed as a police official....
      “(b) Limitations.—
      “(1) Amounts to which subsection (a) applies shall not exceed $5 per day.
      “(2) If any individual receives a subsistence allowance to which subsection (a) applies, no deduction shall be allowed under any other provision of this chapter for expenses in respect of which be has received such allowance, except to the extent that such expenses exceed the amount excludable under subsection (a) and the excess is otherwise allowable as a deduction under this chapter.” 68A Stat. 39.

         See Technical Amendments Act of 1958, § 3, 72 Stat. 1607.

      “[T]he provisions of an employment contract . . . shall not be determinative of whether . . . meals . . . are intended as compensation.”

       We do not decide today whether, notwithstanding § 119, the “supper money” exclusion may be justified on other grounds. See, e. g., Treasury Department, Proposed Fringe Benefit Regulations, 40 Fed. Reg. 41118, 41121 (1975) (example 8). Nor do we decide whether sporadic meal reimbursements may be excluded from income. Cf. United States v. Correll, 389 U. S. 299 (1967).

       Moreover, it must be recognized that § 213 of the Revenue Act of 1921, 42 Stat. 237, which was involved in Jones v. United States, made a distinction by its terms between “gross income” which included “salaries, wages, or compensation for personal service” and the “compensation received as such” by an officer of the United States. See 60 Ct. Cl., at 563. The Court of Claims assumed that Congress by so distinguishing intended to tax United States officers more narrowly than other taxpayers by levying the income tax only on amounts expressly characterized by Congress as compensation. See ibid. For this reason, Jones is of limited value in construing § 61 which contains no language even remotely similar to § 213.

       “§ 162. Trade or business expenses.

        “ (a) In general. — There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including—
      “(i) • • • ;
      “(2) Traveling expenses (including amounts expended for meals and lodging other than amounts which are lavish or extravagant under the circumstances) while away from home in the pursuit of a trade of business . . .

       Compare supra, at 80-81 and Magness v. Commissioner, 247 F. 2d 740 (CA5 1957), with Saunders v. Commissioner.

        Saunders v. Commissioner, 215 F. 2d 768 (CA3 1954); United States v. Barrett, 321 F. 2d 911 (CA5 1963); Hanson v. Commissioner, 298 F. 2d 391 (CA8 1962). As in Morelan, certiorari apparently was not sought in any of this line of cases up to that time.


author: Per Curiam.

text:
    SHELL OIL CO. v. DARTT
    No. 76-678.
    Argued November 7, 1977
    Decided November 29, 1977

      Mary T. Matthies argued the cause for petitioner. With her on the briefs was Brynn F. Aurelius.

      Jefferson G. Greer argued the cause and filed a brief for respondent.

        Jay S. Siegel, Frank C. Morris, Jr., Robert E. Williams, and Douglas S. McDowell filed a brief for the Equal Employment Advisory Council as amicus curiae urging reversal.

   Per Curiam.

The judgment is affirmed by an equally divided Court.

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


author: Per Curiam. Mr. Justice Blackmun, Mr. Justice Brennan, Mr. Justice Stevens,

text:
    IDAHO DEPARTMENT OF EMPLOYMENT v. SMITH
    No. 76-1291.
    Decided December 5, 1977
   Per Curiam.

Petitioner challenges a ruling of the Idaho Supreme Court that the denial of unemployment benefits to otherwise eligible persons who attend school during the day violates the Equal Protection Clause of the Fourteenth Amendment. Idaho Code § 72-1312 (a) (1973) states that “no person shall be deemed to be unemployed while he is attending a regular established school excluding night school . . . The Idaho Supreme Court held that this provision impermissibly discriminates between those unemployed persons who attend night school and those who attend school during the day and that petitioner could not constitutionally deny unemployment benefits to an otherwise eligible person such as respondent whose attendance at daytime classes would not interfere with employment in her usual occupation and did not affect her availability for full-time work. We grant the petition for certiorari and reverse the judgment of the Idaho Supreme Court.

The holding below misconstrues the requirements of the Equal Protection Clause in the field of social welfare and economics. This Court has consistently deferred to legislative determinations concerning the desirability of statutory classifications affecting the regulation of economic activity and the distribution of economic benefits. “If the classification has some 'reasonable basis/ it does not offend the Constitution simply because the classification 'is not made with mathematical nicety or because in practice it results in some inequality.’ ” Dandridge v. Williams, 397 U. S. 471, 485 (1970), quoting Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 78 (1911). See also Massachusetts Board of Retirement v. Murgia, 427 U. S. 307 (1976); Mathews v. De Castro, 429 U. S. 181 (1976); Jefferson v. Hackney, 406 U. S. 535 (1972). The legislative classification at issue here passes this test. It was surely rational for the Idaho Legislature to conclude that daytime employment is far more plentiful than nighttime work and, consequently, that attending school during daytime hours imposes a greater restriction upon obtaining full-time employment than does attending school at night. In a world of limited resources, a State may legitimately extend unemployment benefits only to those who are willing to maximize their employment potential by not restricting their availability during the day by attending school. Moreover, the classification serves as a predictable and convenient means for distinguishing between those who are likely to be students primarily and part-time workers only secondarily and thus ineligible for unemployment compensation and those who are primarily full-time workers and students only secondarily without the necessity of making costly individual eligibility determinations which would deplete available resources. The fact that the classification is imperfect and that the availability of some students desiring full-time employment may not be substantially impaired by their attendance at daytime classes does not, under the cases cited supra, render the statute invalid under the United States Constitution.

Reversed.

Mr. Justice Blackmun,

concurring.

Petitioner Department ruled that respondent became ineligible for state employment insurance benefits when she “enrolled in summer school” (Pet. for Cert. 3) and attended classes from 7 a. m. to 9 a. m., Monday through Friday. These early morning hours of instruction obviously preceded the working day of a retail clerk, respondent's occupation. I would have thought, in light of the fact those school hours did not impinge upon the working day, that the Supreme Court of Idaho might have regarded this as attendance at “night school,” within the meaning of Idaho Code § 72-1312 (a) (1973). That court, however, chose not to do so and, instead, rested its decision upon difficult and precarious federal equal protection analysis. Correct equal protection analysis, it seems to me, necessarily redounds to petitioner’s, rather than respondent’s, benefit, and I therefore am compelled, albeit somewhat reluctantly (because the respondent, who was without counsel in the state proceedings, will never understand why the law is against her in this respect), to join the Court’s opinion summarily reversing the judgment of the Idaho court.

Mr. Justice Brennan,

with whom Mr. Justice Marshall joins,

dissenting in part.

I agree with my Brother Stevens that there is no basis for granting certiorari in this case. I add only that, for me, the record presents serious problems of mootness that have been addressed by neither party’s counsel and, in addition, I question whether the federal issue argued by the State here was properly presented below. In light of these additional problems, our summary reversal may indeed “create the unfortunate impression that the Court is more interested in upholding the power of the State than in vindicating individual rights.” Post, at 105.

Nonetheless, if the federal issue is properly before us, I must agree that the Supreme Court of Idaho committed error. See Ohio Bureau of Employment Services v. Hodory, 431 U. S. 471 (1977). This does not mean, of course, that respondent must lose her unemployment benefits. As my Brother Blackmun notes, the Supreme Court of Idaho on remand may well want to consider whether the purpose of the Idaho Legislature in passing the “night school” provision of Idaho Code § 72-1312 (a) (1973) would not be better served by construing that phrase to include early morning classes, which like night classes are apparently intended by their provider, Boise State University, to allow persons both to work (or seek work) and to go to school. If this construction is not adopted, the court may want to consider whether the Idaho Constitution invalidates § 72-1312 (a). See generally Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977).

Mr. Justice Stevens,

dissenting in part.

In defining the jurisdiction of this Court to review the final judgments rendered by the highest court of a State, Congress has sharply differentiated between cases in which the state court has rejected a federal claim and those in which the federal claim has been vindicated. In the former category our jurisdiction is mandatory; in the latter, it is discretionary.

Our jurisdiction in this case is in the discretionary category. The Idaho Supreme Court has ordered the Idaho Department of Employment to pay benefits to an Idaho resident, resting its decision on an interpretation of the Fourteenth Amendment. Since this decision does not create a conflict and does not involve a question of national importance, it is inappropriate to grant certiorari and order full briefing and oral argument.

Even though there was error in the Idaho Supreme Court’s use of the Fourteenth Amendment as a basis for providing an Idaho resident with more protection than the Federal Constitution requires, I do not believe that error is a sufficient justification for the exercise of this Court’s discretionary jurisdiction. We are much too busy to correct every error that is called to our attention in the thousands of certiorari petitions that are filed each year. Whenever we attempt to do so summarily, we court the danger of either committing error ourselves or of confusing rather than clarifying the law. This risk is aggravated when the losing litigant is too poor to hire a lawyer, as is true in this case. Moreover, this Court’s random and spasmodic efforts to correct errors summarily may create the unfortunate impression that the Court is more interested in upholding the power of the State than in vindicating individual rights.

For these reasons, although I have no quarrel with the majority’s analysis of the merits, I think it would have been wise for the Court to deny certiorari in this case.

       Title 28 U. S. C. § 1257 provides:
      “§ 1257. State courts; appeal; certiorari
      “Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court as follows:
      .“(1) By appeal, where is drawn in question the validity of a treaty or statute of the United States and the decision is against its validity.
      “(2) By appeal, where is drawn in question the validity of a statute of any state on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity.
      “(3) By writ of certiorari, where the validity of a treaty or statute of the United States is drawn in question or where the validity of a State statute is drawn in question on'the ground of its being repugnant to the Constitution, treaties or laws of the United States, or where any title, right, privilege or immunity is specially set up or claimed under the Constitution, treaties or statutes of, or commission held or authority exercised under, the United States.
      “Eor the purposes of this section, the term 'highest court of a State’ includes the District of Columbia Court of Appeals.”

       Cf. Hammer v. Oregon State Penitentiary, 276 Ore. 651, 556 P. 2d 1348 (1976), summarily vacated and remanded, post, p. 945. (Stevens, J., dissenting).

       Respondent originally submitted a pro se letter in opposition to the petition for certiorari. Through the efforts of petitioner itself, a brief was eventually submitted on her behalf by a professor at the Idaho College of Law.