author: Me. Justice Rehnquist Mr. Justice Powell, Mr. Justice Marshall,

text:
    KELLEY, COMMISSIONER, SUFFOLK COUNTY POLICE DEPARTMENT v. JOHNSON
    No. 74-1269.
    Argued December 8, 1975
    Decided April 5, 1976
    Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Blacicmun, and Powell, JJ., joined. Powell, J., filed a concurring opinion, post, p. 249. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined,
      post, p. 249. Stevens, J., took no part in the consideration or decision of the case.

      Patrick A. Sweeney argued the cause for petitioner. With him on the brief was Hoivard E. Packman.

      Leonard D. Wexler argued the cause for respondent. With him on the brief was Richard T. Haefeli.

         James vanR. Springer filed a brief for the International Brotherhood of Police Officers as amicus curiae urging affirmance.

   Me. Justice Rehnquist

delivered the opinion of the Court.

The District Court for the Eastern District of New York originally dismissed respondent’s complaint seeking declaratory and injunctive relief against a regulation promulgated by petitioner limiting the length of a policeman’s hair. On respondent’s appeal to the Court of Appeals for the Second Circuit, that judgment was reversed, and on remand the District Court took testimony and thereafter granted the relief sought by respondent. The Court of Appeals affirmed, and we granted certiorari, 421 U. S. 987 (1975), to consider the constitutional doctrine embodied in the rulings of the Court of Appeals. We reverse.

I

In 1971 respondent’s predecessor, individually and as president of the Suffolk County Patrolmen’s Benevolent Association, brought this action under the Civil Rights Act of 1871, 42 U. S. C. § 1983, against petitioner’s predecessor, the Commissioner of the Suffolk County Police Department. The Commissioner had promulgated Order No. 71-1, which established hair-grooming standards applicable to male members of the police force. The regulation was directed at the style and length of hair, sideburns, and mustaches; beards and goatees were prohibited, except for medical reasons; and wigs conforming to the regulation could be worn for cosmetic reasons. The regulation was attacked as violative of respondent patrolman's right of free expression under the First Amendment and his guarantees of due process and equal protection under the Fourteenth Amendment, in that it was “not based upon the generally_accepted standard of grooming in the community” and. .placed “an undue restriction” upon his activities therein. '

The Court of Appeals held that cases characterizing the uniformed civilian services as “para-military,” and sustaining hair regulations on that basis, were not soundly grounded historically. It said that the fact that a police force is organized “with a centralized administration and a disciplined rank and file for efficient conduct of its affairs" did not foreclose respondent’s claim, but instead bore only upon “the existence of a legitimate state interest to be reasonably advanced by the regulation.” Dwen v. Barry, 483 F. 2d 1126, 1128-1129 (1973). The Court of Appeals went on to decide that “choice of personal appearance is an ingredient of an individual’s personal liberty” and is protected by the Fourteenth Amendment. It further held that the police department had “failed to make the slightest showing of the relationship between its regulation and the legitimate interest it sought to promote.” Id., at 1130-1131. On the basis of this reasoning it concluded that neither dismissal nor summary judgment in the District Court was appropriate, since the department “has the burden of establishing a genuine public need for the regulation.” Id., at 1131.

Thereafter the District Court, under the compulsion of the remand from the Court of Appeals, took testimony on the question of whether or not there was a “genuine public need.” The sole witness was the Deputy Commissioner of the Suffolk County Police Department, petitioner’s subordinate, who testified as to the police department’s concern for the safety of the patrolmen, and the need for some standards of uniformity in appearance. The District Court held that “[n]o proof” was offered to support any claim of the need for the protection of the police officer, and that while “proper grooming” is an ingredient of a good police department’s esprit de corps, petitioner's standards did not establish a public need because they ultimately reduced to “[ujniformity for uniformity’s sake.” The District Court granted the relief prayed for by respondent, and on petitioner's appeal that judgment was affirmed without opinion by the Court of Appeals. 508 F. 2d 836.

I h-I

Section 1 of the Fourteenth Amendment to the United States Constitution provides in pertinent part:

“No State shall . . . deprive any person of life, liberty, or property, without due process of law.”

This section affords not only a procedural guarantee against the deprivation of “liberty,” but likewise protects substantive aspects of liberty against unconstitutional restrictions by the State. Board of Regents v. Roth, 408 U. S. 564, 572 (1972); Griswold v. Connecticut, 381 U. S. 479, 502 (1965) (White, J., concurring).

The “liberty” interest claimed by respondent here, of course, is distinguishable from the interests protected by the Court in Roe v. Wade, 410 U. S. 113 (1973); Eisenstadt v. Baird, 405 U. S. 438 (1972); Stanley v. Illinois, 405 U. S. 645 (1972); Griswold v. Connecticut, supra; and Meyer v. Nebraska, 262 U. S. 390 (1923). Each of those cases involved a substantial claim of infringement on the individual's freedom of choice with respect to certain basic matters of procreation, marriage, and family life. But whether the citizenry at large has some sort of “liberty” interest within the Fourteenth Amendment in matters of personal appearance is a question on which this Court's cases offer little, if any, guidance. We can, nevertheless, assume an affirmative answer for purposes of deciding this case, because we find that assumption insufficient to carry the day for respondent's claim.

Respondent has sought the protectiqn.:Jíf-_the- Fourteenth Amendment, not as a member of the citizenry at large, but on the contrary as an employee of the police department of Suffolk County, a subdivision o'f the State of New York. While the Court of Appeals made passing reference to this distinction, it was thereafter apparently ignored. We think, however, it is highly significant. In Pickering v. Board of Education, 391 U. S. 563, 568 (1968), after noting that state employment may not be conditioned on the relinquishment of First Amendment rights, the Court stated that “[a]t the same time it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.” More recently, we have sustained comprehensive and substantial restrictions upon activities of both federal and state employees lying at the core of the First Amendment. CSC v. Letter Carriers, 413 U. S. 548 (1973); Broadrick v. Oklahoma, 413 U. S. 601 (1973). If such state regulations may survive challenges based on the explicit language of the First Amendment, there is surely even more room fór restrictive regulations of state employees where the claim implicates only the more general contours of the substantive liberty interest protected by the Fourteenth Amendment.

The hair-length regulation here touches respondent as ax) employee of the county and, more particularly, as a policeman. Respondent's employer has, in accordance wijth its well-established duty to keep the peace, placed myriad demands upon the members of the police force, duties which have no counterpart with respect to the public at large. Respondent must wear a standard uniform, specific in each detail. When in uniform he must salute the flag. He may not take an active role in local political affairs by way of being a party delegate or contributing or soliciting political contributions. He may not smoke in public. All of these and other regulations of the Suffolk County Police Department infringe on respondent's freedom of choice in personal matters, and it was apparently the view of the Court of Appeals that the burden is on the State to prove a “genuine public need” for each and every one of these regulations.

This view was based upon the Court of Appeals’ reasoning that the “unique judicial deference” accorded by the judiciary to regulation of members of the military was inapplicable because there was no historical or functional justification for the characterization of the police as “para-military.” But the conclusion that such cases are inapposite, however correct, in no way detracts from the deference due Suffolk County’s choice of an organizational structure for its police force. Here the county has chosen a mode of organization which it undoubtedly deems the most efficient in enabling its police to carry out the duties assigned to them under state and local law. Such a choice necessarily gives weight to the overall need for discipline, esprit de corps, and uniformity.

The county’s choice of an organizational structure, therefore, does not depend for its constitutional validity on any doctrine of historical prescription. Nor, indeed, has respondent made any such claim. His argument does not challenge the constitutionality of the organizational structure, but merely asserts that the present hair-length regulation infringes his asserted liberty interest under the Fourteenth Amendment. We believe, however, that the hair-length regulation cannot be viewed in isolation, but must be rather considered in the context of the county’s chosen mode of organization for its police force.

The promotion of safety of persons and property is unquestionably at the core of the State’s police power, and virtually all state and local governments employ a uniformed police force to aid in the accomplishment of that purpose. Choice of organization, dress, and equipment for law enforcement personnel is a decision entitled to the same sort of presumption of legislative validity as are state choices designed to promote other aims within the cognizance of the State’s police power. Day-Brite Lighting, Inc. v. Missouri, 342 U. S. 421, 423 (1952); Prince v. Massachusetts, 321 U. S. 158, 168-170 (1944); Olsen v. Nebraska, 313 U. S. 236, 246-247 (1941). Having recognized in other contexts the wide latitude accorded the government in the “dispatch of its own internal affairs,” Cafeteria Workers v. McElroy, 367 U. S. 886, 896 (1961), we think Suffolk County’s police regulations involved here are entitled to similar weight. Thus the question is not, as the Court of Appeals conceived it to be, whether the State can “establish” a “genuine public need” for the specific regulation. It is whether respondent can demonstrate that there is no rational connection between the regulation, based as it is on the county’s method of organizing its police force, and the promotion of safety of persons and property. United Public Workers v. Mitchell, 330 U. S. 75, 100-101 (1947); Jacobson v. Massachusetts, 197 U. S. 11, 30-31, 35-37 (1905).

We think the answer here is so clear that the District Court was quite right in the first instance to have dismissed respondent’s complaint. Neither this Court, the Court of Appeals, nor the District Court is in a position to weigh the policy arguments in favor of and against a rule regulating hairstyles as a part of regulations governing a uniformed civilian service. The constitutional issue to be decided by these courts is whether petitioner’s determination that such regulations should be enacted is so irrational that it may be branded “arbitrary,” and therefore a deprivation of respondent’s “liberty” interest in freedom to choose his own hairstyle. Williamson v. Lee Optical Co., 348 U. S. 483, 487-488 (1955). The overwhelming majority of state and local police of the present day are uniformed. This fact itself testifies to the recognition by those who direct those operations, and by the people of the States and localities who directly or indirectly choose such persons, that similarity in appearance of police officers is desirable. This choice may be based on a desire to make police officers readily recognizable to the members of the public, or a desire for the esprit de corps which such similarity is felt to inculcate within the police force itself. Either one is a sufficiently rational justification for regulations so as to defeat respondent’s claim based on the liberty guarantee of the Fourteenth Amendment.

The Court of Appeals relied on Garrity v. New Jersey, 385 U. S. 493 (1967), and amicus in its brief in support of respondent elaborates an argument based on the language in Garrity that “policemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights.” Id., at 500. Garrity, of course, involved the protections afforded by the Fifth Amendment to the United States Constitution as made applicable to the States by the Fourteenth Amendment. Malloy v. Hogan, 378 U. S. 1 (1964). Certainly its language cannot be taken to suggest that the claim of a member of a uniformed civilian service based on the “liberty” interest protected by the Fourteenth-Amaiidment must necessarily be treated for constitutional purposes the same as a similar claim by a member of the general public.

The regulation challenged_here — did- not violate any right guaranteed respondent by the Fourteenth Amendment to the United States Constitution, and the Court of Appeals was therefore wrong in reversing the District Court’s original judgment dismissing the action. The judgment of the Court of Appeals is

Reversed.

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

Mr. Justice Powell,

concurring.

I concur in the opinion of the Court and write to make clear that, contrary to the concern expressed in the dissent, I find no negative implication in the opinion with respect to a liberty interest within the Fourteenth Amendment as to matters of personal appearance. See Poe v. Ullman, 367 U. S. 497, 541-543 (1961) (Harlan, J., dissenting). When the State has an interest in regulating one’s personal appearance, as it certainly does in this case, there must be a weighing of the degree of infringement of the individual’s liberty interest against the need for the regulation. This process of analysis justifies the application of a reasonable regulation to a uniformed police force that would be an impermissible intrusion upon liberty in a different context.

Mr. Justice Marshall,

with whom Mr. Justice Brennan joins, dissenting.

The Court today upholds the constitutionality of Suffolk County’s regulation limiting the length of a policeman’s hair. While the Court only assumes for purposes of its opinion that “the citizenry at large has some sort of 'liberty’ interest within the Fourteenth Amendment in matters of personal appearance . . . ,” ante, at 244, I think it clear that the Fourteenth Amendment does indeed protect against comprehensive regulation of what citizens may or may not wear. And I find that the rationales offered by the Court to justify the regulation in this case are insufficient to demonstrate its constitutionality. Accordingly, I respectfully dissent.

I

As the Court recognizes, the Fourteenth Amendment’s guarantee against the deprivation of liberty “protects substantive aspects of liberty against unconstitutional restrictions by the State.” Ante, at 244. And we have observed that “[l]iberty under law extends to the full range of conduct which the individual is free to pursue.” Bolling v. Sharpe, 347 U. S. 497, 499 (1954). See also Poe v. Ullman, 367 U. S. 497, 543 (1961) (Harlan, J., dissenting). It seems to me manifest that that “full range of conduct” must encompass one’s interest in dressing according to his own taste. An individual’s personal appearance may reflect, sustain, and nourish his personality and may well be used as a means of expressing his attitude and lifestyle. In taking control over a citizen’s personal appearance, the government forces him to sacrifice substantial elements of his integrity and identity as well. To say that the liberty guarantee of the Fourteenth Amendment does not encompass matters of personal appearance would be fundamentally inconsistent with the values of privacy, self-identity, autonomy, and personal integrity that I have always assumed the Constitution was designed to protect. See Roe v. Wade, 410 U. S. 113 (1973); Stanley v. Georgia, 394 U. S. 557, 564 (1969); Griswold v. Connecticut, 381 U. S. 479, 485 (1965); Olmstead v. United States, 277 U. S. 438, 478 (1928) (Brandeis, J., dissenting).

If little can be found in past cases of this Court or indeed in the Nation’s history on the specific issue of a citizen’s right to choose his own personal appearance, it is only because the right has been so clear as to be beyond question. When the right has been mentioned, its existence has simply been taken for granted. For instance, the assumption that the right exists is reflected in the 1789 congressional debates over which guarantees should be explicitly articulated in the Bill of Rights. I. Brant, The Bill of Rights 53-67 (1965). There was considerable debate over whether the right of assembly should be expressly mentioned. Congressman Benson of New York argued that its inclusion was necessary to assure that the right would not be infringed by the government. In response, Congressman Sedg-wick of Massachusetts indicated:

“If the committee were governed by that general principle . . . they might have declared that a man should have a right to wear his hat if he pleased . . . but [I] would ask the gentleman whether he thought it necessary to enter these trifles in a declaration of rights, in a Government where none of them were intended to he infringed.” Id., at 54-55 (emphasis added).

Thus, while they did not include it in the Bill of Rights, Sedgwick and his colleagues clearly believed there to be a right in one’s personal appearance. And, while they may have regarded the right as a trifle as long as it was honored, they clearly would not have so regarded it if it were infringed.

This Court, too, has taken as an axiom that there is a right in one’s personal appearance. Indeed, in 1958 we used the existence of that right as support for our recognition of the right to travel:

“The right to travel is a part of the 'liberty’ of which the citizen cannot be deprived without due process of law under the Fifth Amendment. ... It may he as close to the heart of the individual as the choice of what he eats, or wears, or reads.” Kent v. Dulles, 357 U. S. 116, 125-126 (1958) (emphasis added).

To my mind, the right in one’s personal appearance is inextricably bound up with the historically recognized right of “every individual to the possession and control of his own person,” Union Pacific R. Co. v. Botsford, 141 U. S. 250, 251 (1891), and, perhaps even more fundamentally, with “the right to be let alone — the most comprehensive of rights and the right most valued by civilized men.” Olmstead v. United States, supra, at 478 (Brandeis, J., dissenting). In an increasingly crowded society in which it is already extremely difficult to maintain one’s identity and personal integrity, it would be distressing, to say the least, if the government could regulate our personal appearance unconfined by any constitutional strictures whatsoever.

II

Acting on its assumption that the Fourteenth Amendment does encompass a right in one’s personal appearance, the Court justifies the challenged hair-length regulation on the grounds that such regulations may “be based on a desire to make police officers readily recognizable to the members of the public, or a desire for the esprit de corps which such similarity is felt to inculcate within the police force itself.” Ante, at 248. While fully accepting the aims of “identifiability” and maintenance of esprit de corps, I find no rational relationship between the challenged regulation and these goals.

As for the first justification offered by the Court, I simply do not see how requiring policemen to maintain hair of under a certain length could rationally be argued to contribute to making them identifiable to the public as policemen. Surely, the fact that a uniformed police officer is wearing his hair below his collar will make him no less identifiable as a policeman. And one cannot easily imagine a plainclothes officer being readily identifiable as such simply because his hair does not extend beneath his collar.

As for the Court’s second justification, the fact that it is the president of the Patrolmen’s Benevolent Association, in his official capacity, who has challenged the regulation here would seem to indicate that the regulation would if anything, decrease rather than increase the police force’s esprit de corps. And even if one accepted the argument that substantial similarity in appearance would increase a force’s esprit de corps, I simply do not understand how implementation of this regulation could be expected to create any increment in similarity of appearance among members of a uniformed police force. While the regulation prohibits hair below the ears or the collar and limits the length of sideburns, it allows the maintenance of any type of hairstyle, other than a ponytail. Thus, as long as their hair does not go below their collars, two police officers, one with an “Afro” hair style and the other with a crewcut could both be in full compliance with the regulation.

The Court cautions us not to view the hair-length regulation in isolation, but rather to examine it “in the context of the county's chosen mode of organization for its police force.” Ante, at 247. While the Court’s caution is well taken, one should also keep in mind, as I fear the Court does not, that what is ultimately under scrutiny is neither the overall structure of the police force nor the uniform and equipment requirements to which its members are subject, but rather the regulation which dictates acceptable hair lengths. The fact that the uniform requirement, for instance, may be rationally related to the goals of increasing police officer “identifi-ability” and the maintenance of esprit de corps does absolutely nothing to establish the legitimacy of the hair-length regulation. I see no connection between the regulation and the offered rationales and would accordingly affirm the judgment of the Court of Appeals.

       Order No. 71-1 (1971), amending Chapter 2 of the Rules and Procedures, Police Department, County of Suffolk, N. Y., provided:
      “2/75.0 Members of the Force and Department shall be neat and clean at all times while on duty. Male personnel shall comply with the following grooming standards unless excluded by the Police Commissioner due to special assignment:
      “2/75.1 HAIR: Hair shall be neat, clean, trimmed, and present a groomed appearance. Hair will not touch the ears or the collar except the closely cut hair on the back of the neck. Hair in front will be groomed so that it does not fall below the band of properly worn headgear. In no case will the bulk or length of the hair interfere with the proper wear of any authorized headgear. The acceptability of a member’s hair style will be based upon the criteria in this paragraph and not upon the style in which he chooses to wear his hair.
      “2/75.2 SIDEBURNS: If an individual chooses to wear sideburns, they will be neatly trimmed and tapered in the same manner as his haircut. Sideburns will not extend below the lowest part of the exterior ear opening, will be of even width (not flared), and will end with a clean-shaven horizontal line.
      "2/75.3 MUSTACHES: A short and neatly trimmed mustache may be worn, but shall not extend over the top of the upper lip or beyond the corners of the mouth.
      “2/75.4 BEARDS & GOATEES: The face will be clean-shaven other than the wearing of the acceptable mustache or sideburns. Beards and goatees are prohibited, except that a Police Surgeon may grant a waiver for the wearing of a beard for medical reasons with the approval of the Police Commissioner. When a Surgeon prescribes that a member not shave, the beard will be kept trimmed symmetrically and all beard hairs will be kept trimmed so that they do not protrude more than one-half inch from the skin surface of the face.
      “2/75.5 WIGS: Wigs or hair pieces will not be worn on duty in uniform except for cosmetic reasons to cover natural baldness or physical disfiguration. If under these conditions, a wig or hair piece is worn, it will conform to department standards.” App. 57-58.

        E. g., Stradley v. Andersen, 478 F. 2d 188 (CA8 1973); Greenwald v. Frank, 40 App. Div. 2d 717, 337 N. Y. S. 2d 225 (1972), aff’d without opinion, 32 N. Y. 2d 862, 299 N. E. 2d 895 (1973). The District Court’s dismissal was based on cases upholding the discretionary power of the military and National Guard to regulate a soldier’s hair length. See Gianatasio v. Whyte, 426 F. 2d 908 (CA2), cert. denied, 400 U. S. 941 (1970); Raderman v. Kaine, 411 F. 2d 1102 (CA2), cert. dismissed, 396 U. S. 976 (1969).

       483 F. 2d, at 1130. While it recognized the distinction between citizens and uniformed employees of police and fire departments, the Court of Appeals stated that the individual’s status did not bear on the existence of his right but on whether the right was outweighed by a legitimate state interest. Id., at 1130 n. 9.

       On remand, the complaint was appropriately amended to reflect the interim renumbering and modification of the hair-grooming regulation. The former sections 2/75.0-2/75.3, see n. 1, supra, were modified to provide as follows:
      “Members of the Force will be neat and clean at all times while on duty. Male personnel will comply with the following grooming standards unless excluded by the Police Commissioner due to special assignments:
      “A. Hair will be neat, clean, trimmed and present a groomed appearance. Hair will not go below the ears or the collar except the closely cut hair on the back of the neck. Pony tails are prohibited. In no case will the bulk or length of the hair interfere with the proper wear of any authorized headgear.
      “B. If a member chooses to wear sideburns, they will be neatly trimmed. Sideburns will not extend below the lowest part of the ear. Sideburns shall not be flared beyond 2" in width and will end with a clean-shaven horizontal line. Sideburns shall not connect with the mustache.
      “C. A neatly trimmed mustache may be worn.” Rules and Procedures, Police Department, County of Suffolk, N. Y., 2/2.16 (hereinafter Rules and Procedures).
      Sections 2/75.4-2/75.5, see n. 1, supra, were simply renumbered as 2/2.16, subdivisions D and E, respectively. Deputy Commissioner Rapp’s testimony on remand was directed to the regulation as modified. For present purposes, the differences are immaterial.

       Illustrating one safety problem, Rapp showed that an assailant could throw an officer off balance by grabbing his hair from the rear and levering against the patrolman’s back. After noting that the prohibition against “ponytails” was thus a proper one, the District Court stated:
      “The remainder of 2/2.16A, however, bears no relationship to safety but rather related to hair styling. The potential danger in hairdress is the ability of the offender to grip the hair and hold the fate of the police officer in his hand. Bulk and length of the hair is not regulated except as it interferes with ‘the proper wear of any authorized headgear.’ Thus the regulation would permit bulky and lengthy hair on the top of the head, thereby presenting the very problem that was demonstrated. In the remaining subdivisions, sideburns, mustaches and wigs are regulated and beards are barred. No proof was offered to support any claim of the need for the protection of the police officer in the pertinent regulations.” Pet. for Cert. 7a.
      The District Court’s findings with respect to the relationship between morale and grooming standards are as follows:
      “The high morale of police personnel is a matter of grave concern to the department. Proper grooming is an ingredient of the esprit de corps of a good law enforcement organization. The self-esteem generated in the individual and the respect commanded from the public it serves promotes [sic] the efficiency of the organization’s work. However, with the exception of the general requirement that hair, sideburns and mustaches be neatly trimmed, the regulations do not provide standards for proper grooming. Rather, the standards do nothing more than demand uniformity. Uniformity for uniformity’s sake does not establish a public need. Defendant offered no proof that beards, goatees, hair styles that extend below the ears or collar, or sideburns that extend below the lowest part of the ear or beyond 2" in width and do not end with a cleanshaven horizontal line affect the morale of the members of the police department or earn the disrespect of the public.” Id., at 7a-8a.
      While noting Rapp’s testimony that uniformity was required for identification, the District Court stated: “It would appear, however, that the uniform (issued by the department) supplies the necessary identification for police work.”

       Rules and Procedures 4/1.0-4/1.3.

         Id., 6/2.2.

         Id., 2/2.5.

        Id., 2/5.1.

       See, e. g., id., 2/14.0 et seq. (Code of Ethics).

       The Court of Appeals itself found that while there was no desire on the part of local governments like Suffolk County to create a “military force,” “[t]he use of such organization evolved as a 'practical administrative solution . . . 483 F. 2d, at 1128-1129 (emphasis added).

       We have held that the Constitution’s protection of liberty encompasses the interest of parents in having their children learn German, Meyer v. Nebraska, 262 U. S. 390 (1923); the interest of parents in being able to send their children to private as well as public schools, Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (1925); the interest of citizens in traveling abroad, Kent v. Dulles, 357 U. S. 116, 125 (1958); Aptheker v. Secretary of State, 378 U. S. 500, 505 (1964); the interest of a woman in deciding whether or not to terminate her pregnancy, Roe v. Wade, 410 U. S. 113, 153 (1973); and the interest of a student in the damage to his reputation caused by a 10-day suspension from school. Goss v. Lopez, 419 U. S. 565, 574-575 (1975).

       While the parties did not address any First Amendment issues in any detail in this Court, governmental regulation of a citizen’s personal appearance may in some circumstances not only deprive him of liberty under the Fourteenth Amendment but violate his First Amendment rights as well. Tinker v. Des Moines School Dist., 393 U. S. 503 (1969).

       There has been a substantial amount of lower-court litigation concerning the constitutionality of hair-length and dress-code regulations as applied to schoolchildren. Some of the cases have found the rationales offered for such regulations to be sufficient to support their constitutionality. See, e. g., King v. Saddleback Junior College Dist., 445 F. 2d 932 (CA9), cert. denied, 404 U. S. 979 (1971); Gfell v. Rickelman, 441 F. 2d 444 (CA6 1971); Ferrell v. Dallas Independent School Dist., 392 F. 2d 697 (CA5), cert. denied, 393 U. S. 856 (1968). Other cases have found similar regulations unconstitutional. See, e. g., Richards v. Thurston, 424 F. 2d 1281 (CA1 1970); Breen v. Kahl, 419 F. 2d 1034 (CA7 1969), cert. denied, 398 U. S. 937 (1970). None of the cases, however, have indicated that the Constitution may offer no protection at all against comprehensive regulation of the personal appearance of the citizenry at large.

       History is dotted with instances of governments regulating the personal appearance of their citizens. For instance, in an effort to stimulate his countrymen to adopt a modem lifestyle, Peter the Great issued an edict in 1698 regulating the wearing of beards throughout Russia. W. & A. Durant, The Age of Louis XIV, p. 398 (1963). Anyone who wanted to grow a beard had to pay an annual tax of from one kopek for a peasant to one hundred rubles for a rich merchant. Ibid. Of those who could not afford the “beard tax,” there were many “who, after having their beards shaved off, saved them preciously, in order to have them placed in their coffins, fearing that they would not be allowed to enter heaven without them.” J. Robinson, Readings in European History 390 (1906).
      There are more recent instances, too, of governments regulating the personal appearance of their citizens. See, e. g., N. Y. Times, Feb. 18, 1974, p. 22, col. 4 (Czech police stop long-haired young men, telling them to get haircuts); id., July 23, 1972, p. 4, col. 1 (Libyan Government tells youths to trim hair and wear more sober clothes or submit themselves for training in the army); id., July 7, 1971, p. 22, col. 8 (over 1,000 young men rounded up and given haircuts by South Korean police in what was described by government officials as a “social purification” campaign); id., Oct. 13, 1970, p. 11, col. 1 (police force more than 1,400 South Vietnamese youths to cut their hair). It is inconceivable to me that the Constitution would offer no protection whatsoever against the carrying out of similar actions by either our Federal or State Governments.

       A policeman does not surrender his right in his own personal appearance simply by joining the police force. See Tinker v. Des Moines School Dist., 393 U. S., at 506. I agree with the Court of Appeals that the “status of the individual raising the claim bears [not on the existence of the right, but rather] on the question of whether the right is outweighed by a legitimate state interest.” 483 F. 2d, at 1130 n. 9. Thus, the need to evaluate the governmental interest and the connection between it and the challenged governmental action is as present when the party whose rights have allegedly been violated is a public employee as when he is a private employee. See CSC v. Letter Carriers, 413 U. S. 548, 564-567 (1973). To hold that citizens somehow automatically give up constitutional rights by becoming public employees would mean that almost 15 million American citizens are currently affected by having “executed” such “automatic waivers.” Statistical Abstract of the United States 1975, p. 272.

       Nor, to say the least, is the esprit de corps argument bolstered by the fact that the International Brotherhood of Police Officers, a 25,000-member union representing uniformed police officers, has filed a brief as amicus curiae arguing that the challenged regulation is unconstitutional.

       The regulation itself eschews what would appear to be a less intrusive means of achieving similarity in the hair length of on-duty officers. According to the regulation, a policeman cannot comply with the hair-length requirements by wearing a wig with hair of the proper length while on duty. The regulation prohibits the wearing of wigs or hairpieces "on duty in uniform except for cosmetic reasons to cover natural baldness or physical disfiguration.” Ante, at 240 n. 1. Thus, while the regulation in terms applies to grooming standards of policemen while on duty, the hair-length provision effectively controls both on-duty and off-duty appearance.

       Because, to my mind, the challenged regulation fails to pass even a minimal degree of scrutiny, there is no need to determine whether, given the nature of the interests involved and the degree to which they are affected, the application of a more heightened scrutiny would be appropriate.


source: Caselaw Access Project

author: Per Curiam. Mr. Justice Stewart,

license: Public Domain

text:
    OHIO v. GALLAGHER
    No. 74-492.
    Argued December 2, 1975
    Decided April 5, 1976

      Herbert M. Jacobson argued the cause for petitioner. With him on the brief was Lee C. Falke.

      Jack T. Schwarz, by appointment of the Court, 421 U. S. 985, argued the cause and filed a brief for respondent.

        Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, Frederick R. Millar, Jr., and Theodora Berger, Deputy Attorneys General, filed a brief for the State of California as amicus curiae urging reversal.

   Per Curiam.

We granted certiorari to determine whether the' admission in evidence of statements made by an accused in response to in-custody questioning by his parole officer violates the rule of Miranda v. Arizona, 384 U. S. 436 (1966).

On June 21, 1972, the respondent, Terry L. Gallagher, was arrested and later charged with the armed robbery of a food store. On the morning following his arrest, two detectives advised respondent of his rights under Miranda and then questioned him.

Four days later, respondent’s parole officer, William Sykes, went to the jail to talk to him about the food store robbery as a possible violation of parole. Respondent refused to discuss it, but on a return visit a week later, Gallagher gave Sykes a detailed account of his participation in the crime. It is undisputed that, at no time, did the parole officer advise Gallagher that he had a right to remain silent or that any statements he made would be used as evidence against him. At trial, the parole officer was called as a prosecution witness and testified, over defense objection, to the incriminating statements made to him by Gallagher.

Respondent was convicted of armed robbery in the Ohio Court of Common Pleas. The Ohio Court of Appeals affirmed. 36 Ohio App. 2d 29, 301 N. E. 2d 888 (1973).

The Supreme Court of Ohio granted respondent’s motion for leave to appeal and reversed the judgment of conviction. 38 Ohio St. 2d 291, 313 N. E. 2d 396 (1974). In its opinion, the state court defined the question presented by respondent’s appeal as “whether testimony, concerning certain statements made by [respondent] to his parole officer about his involvement in a crime, was received at trial in violation of [respondent’s] privilege against self-incrimination, as guaranteed by Section 10, Article I of the Ohio Constitution, and the Fifth Amendment to the United States Constitution.” Id., at 294, 313 N. E. 2d, at 398-399. The Ohio Supreme Court held that testimony relating the statements of an accused in response to questions by his parole officer is inadmissible at trial if, prior to the questioning, the parole officer failed to advise the accused of his right to remain silent and his right to be provided with counsel prior to questioning, and to warn him that any statement might be used as evidence against him. Id., at 297, 313 N. E. 2d, at 400.

From the briefs and oral argument, we are unable to determine whether the Ohio Supreme Court rested its decision upon the Fifth and Fourteenth Amendments to the Constitution of the United States, or Art. I, § 10, of the Ohio Constitution, or both. In its full opinion, the Ohio court cited with approval an excerpt from the opinion of the Court of Appeals for the Fifth Circuit in United States v. Deaton, 468 F. 2d 541 (1972), a case which, in the view of the state court, presented the precise question then before it. We are unsure whether the Ohio court made reference to Deaton merely to lend support to its view that a parolee is under heavy-pressure to cooperate with his parole officer or whether the court intended to demonstrate its reliance on a federal constitutional ground. Indeed, we cannot be certain that the Ohio court did not construe its constitutional provision to be identical to that contained in the Fifth Amendment and thus render judgment simultaneously under both state and federal law.

We also note that, except for per curiam opinions, it is the settled rule in Ohio that its Supreme Court speaks as a court only through the syllabi of its cases. See Cassidy v. Glossip, 12 Ohio St. 2d 17, 24, 231 N. E. 2d 64 (1967); see also Beck v. Ohio, 379 U. S. 89, 93 (1964). The italicized headnote which appears in the instant syllabus can be read as a holding based only on points of criminal law and the law of evidence; it contains nothing to indicate that a point of federal constitutional law is decided. Because we decline to speculate from the choice of words used in the syllabus and the authorities cited by the author of the opinion as to which constitutional provision formed the basis for the judgment of the state court, we vacate the judgment of the Supreme Court of Ohio and remand the cause to permit that court to explicate whether or not its judgment relies on federal law. California v. Krivda, 409 U. S. 33 (1972); Mental Hygiene Dept. v. Kirchner, 380 U. S. 194 (1965); Minnesota v. National Tea Co., 309 U. S. 551 (1940). We intimate no view on the merits of the Fifth and Fourteenth Amendment issue presented.

Vacated and remanded.

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

Mr. Justice Stewart,

with whom Mr. Justice Marshall and Mr. Justice Blackmun concur,

dissenting.

It is clear to me that the judgment of the Supreme Court of Ohio rests upon both the Constitution of the State of Ohio and the Constitution of the United States. That being so, the writ of certiorari must be dismissed as improvidently granted under the doctrine of Jankovich v. Toll Road Comm’n, 379 U. S. 487.

The issue that the Ohio court thought it had to decide could hardly have been more unambiguously stated than it was by Justice William B. Brown in the opening paragraph of the opinion of the court:

“The question presented is whether testimony, concerning certain statements made by appellant to his parole officer about his involvement in a crime, was received at trial in violation of appellant’s privilege against self-incrimination, as guaranteed by Section 10, Article I of the Ohio Constitution, and the Fifth Amendment to the United States Constitution.” 38 Ohio St. 2d 291, 294, 313 N. E. 2d 396, 398-399.

I would dismiss the writ of certiorari as improvidently granted.

       420 U. S. 1003 (1975).

       Statements elicited from the respondent during this police interrogation were later suppressed by the trial court on the ground that they were induced by promises of leniency and, as such, were involuntary.

      For more than 100 years the Ohio Supreme Court in other than per curiam opinions has stated the law of the case only in the syllabus. The syllabus in the present case makes no reference whatever to constitutional law, state or federal, but appears to be no more than a ruling in the area of state-evidence law. If the law of this case is to be so understood, it would a fortiori present no federal question.


author: Per Curiam.

text:
    BUTLER et al. v. DEXTER
    No. 75-623.
    Decided April 19, 1976
   Per Curiam.

This is an appeal under 28 U. S. C. § 1253 from an order of a three-judge District Court enjoining the appellants from prosecuting the appellee on the felony charge that his motion picture projector is a “criminal instrument” under § 16.01 of the Texas Penal Code. Since no substantial question about the constitutionality of § 16.01 has been raised, we dismiss the appeal for want of jurisdiction in this Court.

The facts of this case are relatively simple. The ap-pellee, Richard Dexter, ran the Fiesta Theatre in San Antonio, Tex., which in June and July 1974 was exhibiting the film “Deep Throat.” On three separate occasions, an officer of the San Antonio police force paid for admission, entered the theater, and viewed the film. The officer, on each occasion, then wrote out a “Motion for Adversary Hearing” to determine whether there was probable cause to seize the film for violating the Texas obscenity laws. Each time, a magistrate held a short “hearing” in the lobby of the theater, at which he heard the testimony of the police officer, then viewed the film. Each time, the magistrate then issued a warrant to seize the film and to seize the projector as a “criminal instrument” under § 16.01 of the Texas Penal Code. Ap-pellee was then arrested and charged with “commercial obscenity” in violation of Texas Penal Code, § 43.23, and “use of a criminal instrument” in violation of § 16.01. The charge of commercial obscenity is a Class B misdemeanor, carrying a fine not to exceed $1,000, confinement not to exceed 180 days, or both. Appellee did not, according to the trial court, pursue any complaint about these charges in the federal court. He was brought to trial on these charges in the state courts and they are not in issue here. His challenge, rather, was against the prosecutor’s charging him with violations of the criminal instruments statute for his possession of ordinary 16-mm. movie projectors. Violation of that statute is a third-degree felony, and carries a penalty of from 2 to 10 years’ confinement and a fine not to exceed $5,000. Although the felony complaints were lodged and appellee was forced to post some $31,000 in bonds, these charges were never presented to the grand jury.

A “criminal instrument,” for purposes of the Texas statute, is anything “specially designed, made, or adapted for the commission of an offense.” From an examination of the “clear language of the statute” and from an examination of the unofficial “practice commentary” to the statute, the District Court concluded that “[b]y no stretch of the imagination could this statute be used to cover the plaintiff’s actions or the possession of an ordinary portable 16 millimeter motion picture projector with removable interchangeable reels.”

From its conclusion as to the obvious inapplicability of the statute, and from the prosecutor’s failure to present the charges to the grand jury, the District Court found that “[cjharging the plaintiff with a § 16.01 violation . . . cannot have been undertaken with any design to actually convict the plaintiff of the crime. .. . Such a blatant use of an inappropriate statute, which bootstrapped the misdemeanor offense into a felony was effective in requiring that bail for a felony offense be set, not once but several times. The authorities could not believe, however, that Dexter would ultimately be convicted.”

Appellants present several contentions regarding the jurisdiction of the District Court and the correctness of its decision. We do not reach these questions, however, as we have concluded that we have no jurisdiction to consider this case on direct appeal. Jurisdiction is predicated on 28 U. S. C. § 1253, granting the right of direct appeal from an order “granting an . . . injunction in any civil action . . . required by any Act of Congress to be heard and determined by a district court of three judges.” Title 28 U. S. C. § 2281 provides that “[a]n . . . injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute . . . shall not be granted . . . upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges . . . .” Under this statute a three-judge court is required if “a complaint seeks to enjoin a state statute on substantial grounds of federal unconstitutionality, . . . even though nonconstitutional grounds of attack are also alleged . . . .” Florida Lime Growers v. Jacobsen, 362 U. S. 73, 85 (1960). However, in this case the District Court ruled that the actions of the appellants were not taken in the enforcement of the statute and thus no serious question about the constitutionality of the statute was presented.

As noted above, the District Court found that the felony “criminal instruments” charges were made in bad faith and without any design actually to convict ap-pellee on those charges. Rather, the felony charges were made as part of a pattern of harassment by the San Antonio police designed to force appellee to stop exhibiting “Deep Throat.” But the arrests and the charges were not made in any attempt to enforce § 16.01. Nor was the injunction granted on the ground that § 16.01 was unconstitutional; rather, it was granted on the ground that the local officials had acted unconstitutionally in using that statute as a pretext for arrest and the setting of felony bonds when they knew that the statute was inapplicable and that no conviction could ever be obtained. Since no substantial question concerning the constitutionality of § 16.01 was presented to the District Court, a three-judge court was not required. Cf. Bailey v. Patterson, 369 U. S. 31 (1962).

A somewhat better argument might be made that the prosecutor’s actions were part of an effort to enforce the commercial obscenity statute, albeit in a somewhat irregular manner. However, it could not be contended that the District Court grounded its injunction in any way on the unconstitutionality of the commercial obscenity statute; the constitutionality of that statute was not even considered in this case.

Since a three-judge court was not required in this case, the appeal should have been taken to the Court of Appeals for the Fifth Circuit. Since the time for appeal may have passed, we vacate the judgment and remand to the District Court so that it may enter a fresh decree from which a timely appeal can, if desired, be taken. Gonzalez v. Automatic Employees Credit Union, 419 U. S. 90 (1974); Moody v. Flowers, 387 U. S. 97 (1967).

It is so ordered.

       Texas Penal Code Ann. § 16.01 (1974):
      “Unlawful Use of Criminal Instrument
      “(a) A person commits an offense if:
      “(1) he possesses a criminal instrument with intent to use it in the commission of an offense; or
      “(2) with knowledge of its character and with intent to use or aid or permit another to use in the commission of an offense, he manufactures, adapts, sells, installs, or sets up a criminal instrument.
      “(b) For purposes of this section, ‘criminal instrument’ means anything that is specially designed, made, or adapted for the commission of an offense.
      “(c) An offense under this section is a felony of the third degree.”

       Although the appellee has not moved to dismiss the appeal, this Court must take notice on its own motion where jurisdiction does not appear. Brown Shoe Co. v. United States, 370 U. S. 294, 306 (1962).

       There was another occasion where substantially the same events occurred, but appellee was not arrested, although a theater employee named William Walker was.

       Tex. Penal Code Ann. § 12.22 (1974).

       Tex. Penal Code Ann. § 12.34 (1974).

       Appellants argued below that the District Attorney believed he was precluded from pursuing those charges by the restraining order issued by the federal court. However, the restraining order specifically provided that "no pending state criminal prosecutions are enjoined and the State is free to bring to trial and try any such cases.” The District Judge also informed the appellants on at least two occasions during the hearings that the restraining order did not bar the bringing of indictments on any pending charges.

       See n. 1, supra.

        Universal Amusement Co. v. Vance, 404 F. Supp. 33, 48, 51 (SD Tex. 1975).

        Id., at 48.

       Cf. Phillips v. United States, 312 U. S. 246, 252 (1941): “But an attack on lawless exercise of authority in a particular case is not an attack upon the constitutionality of a statute conferring the authority .... It is significant that the United States in its complaint did not charge the enabling acts of Oklahoma with unconstitutionality, but assailed merely the Governor’s action as exceeding the bounds of law.” This situation is, of course, to be distinguished from an attack on a statute said to be unconstitutional “as applied.” See also Ex parte Bransford, 310 U. S. 354 (1940).

       We have no occasion to consider whether the District Court was correct in deciding that § 16.01 did not — and that appellants knew it did not — authorize appellants’ actions. Nor do we consider whether, having so decided, the court was empowered to grant appellee relief enjoining the State from prosecuting him on the pending felony charges purportedly filed pursuant to that section. We hold only that by having made that decision, the court removed from the case any possibility that the statute might be enjoined on the grounds of its unconstitutionality.

       This ease was consolidated in the District Court with several other cases, at least some of which did bring into question the constitutionality of a state statute. Each case before this Court, however, must' be considered separately to determine whether or not this Court has jurisdiction to consider its merits.


author: Per Curiam. Mr. Justice Stevens,

text:
    DIAMOND NATIONAL CORP. et al. v. STATE BOARD OF EQUALIZATION
    No. 75-1038.
    Decided April 19, 1976
   Per Curiam.

The judgment is reversed. We are not bound by the California court’s contrary conclusion and hold that the incidence of the state and local sales taxes falls upon the national bank as purchaser and not upon the vendors. The national bank is therefore exempt from the taxes under former 12 U. S. C. § 548 (1964 ed.), which was in effect at the time here pertinent. First Agricultural Nat. Bank v. Tax Comm’n, 392 U. S. 339, 346-348 (1968).

Reversed.

Mr. Justice Stevens,

with whom Mr. Justice Rehnquist joins,

dissenting.

Appellants contend that California may not impose its sales tax on the sale of printed forms and other tangibles to Crocker-Citizens National Bank because the legal incidence of the tax falls upon a federal instrumentality. The California Court of Appeal, applying a construction of the California statute that has been consistently followed for over 40 years, held that the legal incidence of the tax falls upon the vendor rather than the purchaser.

Since the case involves a federal claim of immunity from state taxation, we are not bound by the California court's determination of where the incidence of the tax falls. On the other hand, we are not free simply to disregard the state court's determination. More narrowly, I believe we must accept the state court's interpretation of the meaning of a state statute insofar as it defines the legal obligations of the vendor, the purchaser, and the tax collector independently of any claim of federal immunity.

In this case we have the benefit of completely consistent construction by the California courts since the statute was enacted in 1933. Both in cases involving a federal claim of immunity, and also in cases which involved no question of federal law, the California courts have unambiguously held that the statute imposes no legal obligation on a purchaser either to pay the tax himself or to reimburse his vendor.

That consistent, nondiscriminatory construction of California law avoids appellants' reliance on First Agricultural Nat. Bank v. Tax Comm’n, 392 U. S. 339. In that case we held that “a sales tax which by its terms must be passed on to the purchaser imposes the legal incidence of the tax upon the purchaser." Id., at 347 (emphasis added). This is not a case in which the state statute, either by its own terms or as construed by the state courts, imposes any legal obligation on the purchaser.

It is true that the bank expressly agreed to assume the economic burden imposed by the tax and, furthermore, that the statutory scheme contemplates that as a practical matter the vendor will pass that burden on to his customers. As I understand our cases, however, these facts do not provide a sufficient basis for concluding that the legal incidence of the tax falls upon the purchaser.

Deciding where the legal incidence of a state tax falls is not the most intriguing task that judges are called upon to perform. Such work is facilitated, however, when the controlling standards are expressed in simple language. I had thought two rather clear rules controlled this case. First, the location of the economic impact of a tax does not identify the place where its legal incidence falls. Second, it is only if the State imposes a legal obligation on the purchaser either to pay the tax, or to reimburse the vendor for a tax payment, that the legal incidence is on the purchaser. The Court’s disposition of this appeal apparently is not predicated on either of those rules. However, I am persuaded that they require us to affirm the judgment of the California Court of Appeal.

       49 Cal. App. 3d 778, 123 Cal. Rptr. 160 (1975).

       See Society for Savings v. Bowers, 349 U. S. 143, 151.

       As we said in American Oil Co. v. Neill, 380 U. S. 451, 455-456: “When a state court has made its own definitive determination as to the operating incidence [of a tax], our task is simplified. We give this finding great weight in determining the natural effect of a statute, and if it is consistent with the statute's reasonable interpretation it will be deemed conclusive.”

       The very question which confronts us here arose in Western Lithograph Co. v. State Board of Equalization, 11 Cal. 2d 156, 78 P. 2d 731 (1938); in that case the plaintiff-vendor claimed not to be liable for taxes measured by sales made to the Bank of America National Trust and Savings Association. The Supreme Court of California affirmed the denial of a refund, holding that the incidence of the tax was on the retailer, not on the consumer.

       In National Ice & Cold Storage Co. of California v. Pacific Fruit Express Co., 11 Cal. 2d 283, 79 P. 2d 380 (1938), the court held that the vendor could not add sales tax reimbursement to the price paid by a vendee under a pre-existing contract, even though the court was required, in order to reach this result, to hold unconstitutional a section of the taxing statute which expressly allowed such a result. The court reasoned that while it was not beyond the power of the legislature to impose a tax on the consumer, it had not done so, and it was beyond the power of the legislature to require the vendee to pay the vendor’s debt.
      That this left the California sales tax reimbursement as a matter of contract between vendor and vendee is affirmed by the later holdings of the lower California courts in Clary v. Basalt Rock Co., 99 Cal. App. 2d 458, 222 P. 2d 24 (1950), which held that there was no venue against the vendee in a particular county because it could not be found that any tax obligation arose against the vendee when a sale was made, and Livingston Rock & Gravel Co. v. DeSalvo, 136 Cal. App. 2d 156, 288 P. 2d 317 (1955), where the vendor under a lease-sale overlooked providing for sales tax reimbursement. Although the vendor had been held liable for payment to the State, the court held that the vendor could not collect the tax from the vendee.

       We have recently explained "the controlling significance” of First Agricultural Bank in this way:
      “But the controlling significance of First Agricultural Bank for our purposes is the test formulated by that decision for the determination where the legal incidence of the tax falls, namely, that where a State requires that its sales tax be passed on to the purchaser and be collected by the vendor from him, this establishes as a matter of law that the legal incidence of the tax falls upon the purchaser.” United States v. Mississippi Tax Comm’n, 421 U. S. 599, 608.
      In this case, unlike First Agricultural Bank, the State does not require that its sales tax be passed on to the purchaser.

       Appellants have placed great stress on the wording of § 6052 of the California Revenue and Taxation Code (1970), which provides:
      “§ 6052 Collection by retailer from consumer. The tax hereby imposed shall be collected by the retailer from the consumer in so far as it can be done.”
      On its face this provision could reasonably be read to require that the tax be paid by the consumer. However, in the face of the state courts’ consistent interpretation of the state statute as not requiring that result, we are not free to place our own interpretation on the statute.

       In Gurley v. Rhoden, 421 U. S. 200, 204-205, we explained:
      “The economic burden of taxes incident to the sale of merchandise is traditionally passed on to the purchasers of the merchandise. Therefore, the decision as to where the legal incidence of either tax falls is not determined by the fact that petitioner, by increasing his pump prices in the amounts of the taxes, shifted the economic burden of the taxes from himself to the purchaser-consumer. The Court has laid to rest doubts on that score raised by such decisions as Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U. S. 218 (1928); Indian Motorcycle Co. v. United States, 283 U. S. 570 (1931); and Kern-Limerick, Inc. v. Scurlock, 347 U. S. 110 (1954), at least under taxing schemes, as here, where neither statute required petitioner to pass the tax on to the purchaser-ccnsumer. See Alabama v. King & Boozer, 314 U. S. 1 (1941); Lash’s Products Co. v. United States, 278 U. S. 175 (1929); Wheeler Lumber Co. v. United States, 281 U. S. 572 (1930); First Agricultural Nat. Bank v. Tax Comm’n, 392 U. S. 339 (1968); American Oil Co. v. Neill, 380 U. S. 451 (1965).”


author: Mr. Justice Brennan

text:
    SAKRAIDA v. AG PRO, INC.
    No. 75-110.
    Argued March 3, 1976
    Decided April 20, 1976
    BreNNAN, J., delivered the opinion for a unanimous Court.

      Stephen B. Tatem, Jr., argued the cause for petitioner. With him on the briefs was James F. Hulse.

      J. Pierre Kolisch argued the cause for respondent. With him on the brief was John W. Stuart.

        Mary Helen Sears filed a brief for the Texas Farmers Union as amicus curiae urging reversal.

        Helen W. Nies, Donald R. Dunner, and David N. Webster filed a brief for the Bar Association of the District of Columbia as amicus curiae.

   Mr. Justice Brennan

delivered the opinion of the Court.

Respondent Ag Pro, Inc., filed this action against petitioner Sakraida on October 8, 1968, in the District Court for the Western District of Texas for infringement of United States Letters Patent 3,223,070, entitled “Dairy Establishment,” covering a water flush system to remove cow manure from the floor of a dairy barn. The patent was issued December 14, 1965, to Gribble and Bennett, who later assigned it to respondent.

The District Court's initial grant of summary judgment for petitioner was reversed by the Court of Appeals for the Fifth Circuit. 437 F. 2d 99 (1971). After a trial on remand, the District Court again entered a judgment for petitioner. The District Court held that the patent “does not constitute invention, is not patentable, and is not a valid patent, it being a combination patent, all of the elements of which are old in the dairy business, long prior to 1963, and the combination of them as described in the said patent being neither new nor meeting the test of non-obviousness.” The Court of Appeals again reversed and held the patent valid. 474 F. 2d 167 (1973). On rehearing, the court remanded “with directions to enter a judgment holding the patent valid, subject, however, to . . . consideration of a motion under Rule 60 (b)(2), F. R. Civ. P., to be filed in the District Court by the [petitioner] Sakraida on the issue of patent validity based on newly discovered evidence.” 481 F. 2d 668, 669 (1973). The District Court granted the motion and ordered a new trial. The Court of Appeals again reversed, holding that the grant of the motion was error, because “the record on the motion establishes that [petitioner] failed to exercise due diligence to discover the new evidence prior to entry of the former judgment.” 512 F. 2d 141, 142 (1975). The Court of Appeals further held that “[o]ur prior determination of patent validity is reaffirmed.” Id., at 144. We granted certio-rari. 423 U. S. 891 (1975). We hold that the Court of Appeals erred in holding the patent valid and also in reaffirming its determination of patent validity. We therefore reverse and direct the reinstatement of the District Court’s judgment for petitioner, and thus we have no occasion to decide whether the Court of Appeals properly found that petitioner had not established a case for a new trial under Rule 60 (b)(2).

Systems using flowing water to clean animal wastes from barn floors have been familiar on dairy farms since ancient times. The District Court found, and respondent concedes, that none of the 13 elements of the Dairy Establishment combination is new, and many of those elements, including storage of the water in tanks or pools, appear in at least six prior patented systems. The prior art involved spot delivery of water from tanks or pools to the barn floor by means of high pressure hoses or pipes. That system required supplemental hand labor, using tractor blades, shovels, and brooms, and cleaning by these methods took several hours. The only claimed inventive feature of the Dairy Establishment combination of old elements is the provision for abrupt release of the water from the tanks or pools directly onto the barn floor, which causes the flow of a sheet of water that washes all animal waste into drains within minutes and requires no supplemental hand labor. As an expert witness for respondent testified concerning the effect of Dairy Establishment’s combination: “[W]ater at the bottom has more friction than this water on the top and it keeps moving ahead and as this water keeps moving ahead^we get a rolling action of this water which produced the cleaning action. ... You do not get this in a hose. . . . [UJnless that water is continuously directed toward the cleaning area the cleaning action almost ceases instantaneously. ...”

The District Court found that “[n] either the tank which holds the water, nor the means of releasing the water quickly is new, but embrace [s] tanks and doors which have long been known,” and further that “their use in this connection is one that is obvious, and the patent in that respect is lacking in novelty. The patent does not meet the non-obvious requirements of the law.” The District Court therefore held that Dairy Establishment “may be relevant to commercial success, but not to invention,” because the combination “was reasonably obvious to one with ordinary skill in the art.” Moreover, even if the combination filled a “long-felt want and . . . has enjoyed commercial success, those matters, without invention, will not make patentability.” Finally, the District Court concluded: “[T]o those skilled in the art, the use of the old elements in combination was not an invention by the obvious-nonobvious standard. Even though the dairy barn in question attains the posture of a successful venture, more than that is needed for invention.” The Court of Appeals disagreed with the District Court’s conclusion on the crucial issue of obviousness.

It has long been clear that the Constitution requires that there be some “invention” to be entitled to patent protection. Dann v. Johnston, ante, p. 219. As we explained in Hotchkiss v. Greenwood, 11 How. 248, 267 (1851): “[U]nless more ingenuity and skill . . . were required . . . than were possessed by an ordinary mechanic acquainted with the business, there was an absence of that degree of skill and ingenuity which constitute essential elements of every invention. In other words, the improvement is the work of the skillful mechanic, not that of the inventor.” This standard was enacted in 1952 by Congress in 35 U. S. C. § 103 “as a codification of judicial precedents . . . with congressional directions that inquiries into the obviousness of the subject matter sought to be patented are a prerequisite to patentability.” Graham v. John Deere Co., 383 U. S. 1, 17 (1966). Section 103 provides:

“A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.”

The ultimate test of patent validity is one of law, Great A. & P. Tea Co. v. Supermarket Corp., 340 U. S. 147, 155 (1950), but resolution of the obviousness issue necessarily entails several basic factual inquiries, Graham v. John Deere Co., supra, at 17.

“Under § 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved.” Ibid.

The Court of Appeals concluded that “the facts presented at trial clearly do not support [the District Court’s] finding of obviousness under the three-pronged Graham test . . . .” 474 F. 2d, at 172. We disagree and hold that the Court of Appeals erroneously set aside the District Court’s findings.

The scope of the prior art was shown by prior patents, prior art publications, affidavits of people having knowledge of prior flush systems analogous to respondent’s, and the testimony of a dairy operator with 22 years of experience who described flush systems he had seen on visits to dairy farms throughout the country. Our independent examination of that evidence persuades us of its sufficiency to support the District Court's finding “as a fact that each and all of the component parts of this patent . . . were old and well-known throughout the dairy industry long prior to the date of the filing of the application for the Gribble patent .... What Mr. Gribble referred to ... as the essence of the patent, to-wit, the manure flush system, was old, various means for flushing manure from dairy barns having been used long before the filing of the application . Indeed, respondent admitted at trial “that the patent is made up of a combination of old elements” and “that all elements are individually old . . . Accordingly, the District Court properly followed our admonition in Great A. & P. Tea Co. v. Supermarket Corp., supra, at 152: “Courts should scrutinize combination patent claims with a care proportioned to the difficulty and improbability of finding invention in an assembly of old elements.... A patent for a combination which only unites old elements with no change in their respective functions ... obviously withdraws what already is known into the field of its monopoly and diminishes the resources available to skillful men. ...”

The Court of Appeals recognized that the patent combined old elements for applying water to a conventional sloped floor in a dairy barn equipped with drains at the bottom of the slope and that the purpose of the storage tank — to accumulate a large volume of water capable of being released in a cascade or surge — was equally conventional. 474 F. 2d, at 169. It concluded, however, that the element lacking in the prior art was any evidence of an arrangement of the old elements to effect the abrupt release of a flow of water to wash animal wastes from the floor of a dairy barn. Ibid. Therefore, “although the [respondent’s] flush system does not embrace a complicated technical improvement, it does achieve a synergistic result through a novel combination.” Id., at 173.

We cannot agree that the combination of these old elements to produce an abrupt release of water directly on the barn floor from storage tanks or pools can properly be characterized as synergistic, that is, “result [ing] in an effect greater than the sum of the several effects taken separately.” Anderson’s-Black Rock v. Pavement Co., 396 U. S. 57, 61 (1969). Rather, this patent simply arranges old elements with each performing the same function it had been known to perform, although perhaps producing a more striking result than in previous combinations. Such combinations are not patentable under standards appropriate for a combination patent. Great A. & P. Tea Co. v. Supermarket Corp., supra; Anderson’s-Black Rock v. Pavement Co., supra. Under those authorities this assembly of old elements that delivers water directly rather than through pipes or hoses to the barn floor falls under the head of “the work of the skilful mechanic, not that of the inventor.” Hotchkiss v. Greenwood, 11 How., at 267. Exploitation of the principle of gravity adds nothing to the sum of useful knowledge where there is no change in the respective functions of the elements of the combination; this particular use of the assembly of old elements would be obvious to any person skilled in the art of mechanical application. See Dann v. Johnston, ante, at 229-230.

Though doubtless a matter of great convenience, producing a desired result in a cheaper and faster way, and enjoying commercial success, Dairy Establishment “did not produce a 'new or different function’ . . . within the test of validity of combination patents.” Anderson’s-Black Rock v. Pavement Co., supra, at 60. These desirable benefits “without invention will not make patentability.” Great A. & P. Tea Co. v. Supermarket Corp., 340 U. S., at 153. See Dann v. Johnston, ante, at 230 n. 4.

Reversed.

       Among the labors of Hercules is the following:
      “Heracles now set out to perform his fifth Labour, and this time his task was- to cleanse the stables of Augeas in a single day. Augeas was a rich king of Elis, who had three thousand cattle. At night the cattle always stood in a great court surrounded with walls, close to the king’s palace, and as it was quite ten years since the servants had cleaned it out, there was enough refuse in the court to build up a high mountain. Heracles went to Augeas and asked if he would give him the tenth part of his flocks if he thoroughly cleansed his stables in a single day. The king looked upon this as such an absolutely impossible feat that he would not have minded promising his kingdom as a reward for it, so he laughed and said, 'Set to work, we shall not quarrel about the wages,' and he further promised distinctly to give Heracles what he asked, and this he did in the presence of Phyleus, his eldest son, who happened to be there. The next morning Heracles set to work, but even his strong arms would have failed to accomplish the task if they had not been aided by his mother-wit. He compelled a mighty torrent to work for him, but you would hardly guess how he did it. First he opened great gates on two opposite sides of the court, and then he went to the stream, and when he had blocked up its regular course with great stones, he conducted it to the court that required to be cleansed, so that the water streamed in at one end and streamed out at the other, carrying away all the dirt with it. Before evening the stream had done its work and was restored to its usual course.” C. Witt, Classic Mythology 119-120 (1883).

       The District Court found as follows respecting Claims 1 and 3, the only claims involved in the case:
      “1. I find that the 'dairy establishment’ as described in United States Letters Patent 3,223,070 is composed of 13 separate items, as follows:
      “(a) . a smooth, evenly contoured, paved surface forming a floor providing a walking surface. . .
      "(b) . . drain means for draining wash water from such floor opening to the top of the floor.’
      “(e) '. . . said smooth, evenly contoured surface which forms such floor sloping toward said drain. . . .’
      “(d) ‘. . . multiple rest areas with individual stalls for each cow and with each of said stalls having a bottom which is also a smooth pavement. . . .’
      “(e) ‘. . . which is disposed at an elevation above the paved surface forming the floor. .. .’
      “(f) r. . . said stalls being dimensioned so that a cow can comfortably stand or lie in the stall, but offal from the cow falls outside the stall bottom and onto the floor providing the walking surface in the bam. . . .’
      “(g) . . said bam further including defined feeding areas having feeding troughs. . . /
      “(h) ‘. . . a cow-holding area.’
      “(i) ‘. . . a milking area.’
      “(j) ‘. . .a transfer area all bottomed with the walking surface forming said floor in the bam.. ..’
      "(k) '. . . and floor washing means for washing the floor providing the walking surface in the bam where said floor bottom, said feeding, holding, milking and transfer areas operable to send wash water flowing over the floor with such water washing any cow offal thereon into the said drain means, said floor washing means including means located over a region of said floor which is uphill from said drain means constructed to collect water as a pool above said floor and operable after such collection of water as a pool to dispense the water as a sheet of water over said floor.’
      “(1) A tank on a mounting, so that it can be tilted, and the water poured out to cascade on the floor to form a sheet.
      “(m) A floor-washing means comprising a dam for damming or collecting water as a pool directly on the floor, which such dam abruptly openable to send water cascading as a sheet over the floor towards the drain.

        “2. I further find that each of the items above-described were not new, but had been used in the dairy business prior to the time the application for the said Gribble patent, made the subject of this action, had been filed in the Patent Office of the United States on November 5, 1963.”

       The District Court found:
      “[M]any of the items going to make up Plaintiff’s claim for a patent were disclosed in prior patents, known respectively as the McCornack patent, the Holz patent, the Ingraham patent, the Kreutzer patent, the Bogert patent, and the Luks patent; and that the statements of the Examiner’s opinions refusing to issue a patent are true as to all items there stated to be'covered in prior patents or publications.”

         This witness further testified:
      “[W]ater has energy and it can be used in many different ways. In a hose the energy is used by impact, under pressure, external force that is applied to this pressure — to this water, whereas the water that comes down as a sheet or wall of water has built in energy because of its elevation and as this water is released it does the same thing water does in a flooded stream. As this water — I will try to malee this clear, and I hope I can, on the surface of this pavement there are these piles of manure droppings. This pavement is smooth and this water moves down over this manure. The water at the bottom has more friction than this water on the top and it keeps moving ahead and as this water keeps moving ahead we get a rolling action of this water which produced the cleaning action. That is the key to this method of cleaning. You do not get this in a hose. You do not get it in a gutter as has been used in the past. I might just mention a little bit about the hose. This squirting water on a floor — probably have done it on our own sidewalks or walkways, and I just mention that, that unless that water is continuously directed towards the cleaning area the cleaning action almost ceases instantaneously. Now the movie that was shown earlier very dramatically illustrated that point. The cleaning action — as soon as the hoses moved to one side the cleaning action ceased here and that is why this hose was moved back and forth, to drive this stuff on down to where we want it.”

       The court also concluded that “while the combination of old elements may have performed a useful function, it added nothing to the nature and quality of dairy bams theretofore used.”

       The court stated:
      “I therefore find as a fact that each and all of the component parts of this patent as listed under the applicant’s claims set out in said patent, were old and well-known throughout the dairy-industry tong prior to the date of the filing of the application for the Gribble patent. I further find that what Mr. Gribble referred to in his deposition as the essence of the patent, to-wit, the manure flush system, was old, various means for flushing manure from dairy barns having been used tong before the filing of the applies^ tion for the Gribble patent, the general idea in that connection being a hard surfaced sloping floor onto which the cows’ offal was dropped, and some system of introducing water in sufficient quantities and force onto said floor to wash the offal therefrom, with a ditch or drain to carry the offal so washed away from the barn, either into a manure container or otherwise.”