author: Per Curiam. Justice Brennan, Justice Stevens,

text:
    AUTRY v. ESTELLE, DIRECTOR, TEXAS DEPARTMENT OF CORRECTIONS
    No. A-197.
    Decided October 3, 1983
   Per Curiam.

Applicant was sentenced to death for killing two people while robbing a convenience store. His conviction and sentence were affirmed by the Texas Court of Criminal Appeals. Autry v. State, 626 S. W. 2d 758 (1982). We denied certiorari. 459 U. S. 882 (1982). Applicant then sought habeas corpus in the state system; that request was denied. He then filed for habeas corpus in the Federal District Court, presenting some of the same claims that had been unavailing in the state courts. The District Court held a hearing and filed an opinion denying the writ. In a detailed opinion, the Court of Appeals for the Fifth Circuit affirmed the judgment of the District Court. 706 F. 2d 1394 (1983). It denied rehearing, as well as a stay pending the filing of a petition for certiorari in this Court. Applicant then sought a stay from the Circuit Justice, who referred the application to the Court. Absent a stay, applicant will be executed on October 5.

The application for stay is denied. The grounds on which applicant would request certiorari are amply evident from his application and from the opinions and the proceedings in the District Court and the Court of Appeals. Had applicant convinced four Members of the Court that certiorari would be granted on any of his claims, a stay would issue. But this is not the case; fewer than four Justices would grant certiorari. Applicant thus fails to satisfy one of the basic requirements for the issuance of a stay.

Nor are we inclined to adopt a rule calling for an automatic stay, regardless of the merits of the claims presented, where the applicant is seeking review of the denial of his first federal habeas corpus petition. Applicant has twice sought relief in the state court system. He has also presented his claims to the United States District Court and to the Court of Appeals. None of these judges found sufficient merit in any of applicant’s claims to warrant setting aside applicant’s conviction or his death sentence. Nor did any of the judges of the Court of Appeals believe that a stay pending certiorari was warranted. Those judges, stating that they were “fully sensitive to the consequence of our judgment and our oaths,” 706 F. 2d, at 1408, found each of applicant’s claims to be without merit and affirmed the dismissal of his habeas corpus petition. In these circumstances, it is quite appropriate to deny a stay of applicant’s sentence, just as we do in other criminal cases that we are convinced do not merit review in this Court. As the Court said just last Term in Barefoot v. Estelle, 463 U. S. 880, 887-888 (1983):

“[I]t must be remembered that direct appeal is the primary avenue for review of a conviction or sentence, and death penalty cases are no exception. When the process of direct review — which, if a federal question is involved, includes the right to petition this Court for a writ of cer-tiorari — comes to an end, a presumption of finality and legality attaches to the conviction and sentence. The role of federal habeas proceedings, while important in assuring that constitutional rights are observed, is secondary and limited. Federal courts are not forums in which to relitigate state trials. Even less is federal habeas a means by which a defendant is entitled to delay an execution indefinitely. The procedures adopted to facilitate the orderly consideration and disposition of ha-beas petitions are not legal entitlements that a defendant has a right to pursue irrespective of the contribution these procedures make toward uncovering constitutional error.”

Justice Brennan,

dissenting.

I join Justice Stevens’ dissent, and because I continue to adhere to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227 (1976) (Brennan, J., dissenting), I would, in any case, grant the application for a stay of execution.

Justice Stevens,

with whom Justice Brennan, Justice Marshall, and Justice Blackmun join,

dissenting.

Last year the applicant’s death sentence was affirmed by the Texas Court of Criminal Appeals. Autry v. State, 626 S. W. 2d 758, cert. denied, 459 U. S. 882 (1982). On January 14, 1983, the United States District Court for the Eastern District of Texas denied the applicant’s first petition for a writ of habeas corpus pursuant to 28 U. S. C. §2254 after holding an evidentiary hearing. On June 17, 1983, after full briefing and argument, the United States Court of Appeals for the Fifth Circuit issued a carefully prepared 16-page opinion affirming the District Court’s denial of the petition. 706 F. 2d 1394. Rehearing was denied on August 4, 1983, and on September 1, 1983, Texas authorities scheduled the applicant to be executed on October 5, 1983. He has applied for a stay of execution pending filing and disposition of a petition for a writ of certiorari. The Texas Attorney General does not oppose the stay application.

The time in which the applicant may file a petition for a writ of certiorari in this Court will not expire until November 2, 1983 — four weeks after his scheduled execution. Thus, unless a stay is granted, the applicant will be executed before the applicant’s time for petitioning this Court for a writ of certiorari expires.

The stay application makes it clear that the applicant’s claims are not frivolous. Moreover, since this is the applicant’s first federal habeas corpus proceeding, we are not confronted with the prospect of indefinite delay of execution which exists when an applicant has burdened the judicial system with successive federal petitions. On the other hand, on the basis of the papers that have been filed to date, I must acknowledge that I am presently of the opinion that this applicant will be unable to establish that a writ of certiorari should issue. My opinion, however, is necessarily tentative because the stay application contains only a synopsis of the arguments that counsel intends to make in a certiorari petition that has yet to be filed.

The decision to grant or to deny a stay pending the filing of a petition for a writ of certiorari depends on our assessment of the likelihood that such a petition will be granted and a balancing of the relative hardships of the parties. When a denial of a stay merely subjects the applicant to a continuing harm pending our decision on a subsequently filed certiorari petition, it is appropriate to deny the application unless the applicant demonstrates a likelihood that his petition will be granted. If it transpires that our tentative assessment of his case was incorrect, that error can be corrected by granting the subsequently filed certiorari petition, though naturally nothing can eliminate the interim harm the applicant suffered. In the instant case, however, a decision on the application is a final decision on the certiorari question — a decision to deny the stay renders a petition moot. The impact of our decision is therefore in no sense tentative, but our assessment of the case can only be a tentative one because it is based on probability rather than actuality. Accordingly, a preliminary negative evaluation of the certiorari question should not be the end of our analysis; we should also balance the relative hardships on the parties. I would strike that balance in favor of any applicant raising a nonfrivolous challenge to his capital conviction in his first federal habeas proceeding. In such a case, the importance of fully informed consideration of the certiorari question predominates over the interests of the State in expeditious execution of its judgment.

In one sense, the practical question that is raised by this stay application is whether the Court should give habeas petitioners on death row the same time to prepare and file cer-tiorari petitions that other litigants receive. Unless the claims are frivolous, I believe that the overriding interest in the evenhanded administration of justice would be served by according an individual raising his first federal habeas challenge to his capital conviction the same opportunity to seek review in this Court as is accorded to other individuals.

The practice adopted by the majority effectively confers upon state authorities the power to dictate the period in which these federal habeas petitioners may seek review in this Court by scheduling an execution prior to the expiration of the period for filing a certiorari petition. Shortening the period allowed for filing a petition on such an ad hoc basis injects uncertainty and disparity into the review procedure, adds to the burdens of counsel, distorts the deliberative process within this Court, and increases the risk of error. Procedural shortcuts are always dangerous. Greater — surely not lesser — care should be taken to avoid the risk of error when its consequences are irreversible.

I respectfully dissent.

      “In my opinion the preservation of order in our communities will be best ensured by adherence to established and respected procedures. Resort to procedural expediency may facilitate an occasional conviction, but it may also make martyrs of common criminals.” Groppi v. Leslie, 436 F. 2d 331, 336 (CA7 1971) (en banc) (Stevens, J., dissenting).


source: Caselaw Access Project

author: Justice Marshall

license: Public Domain

text:
    ALOHA AIRLINES, INC. v. DIRECTOR OF TAXATION OF HAWAII
    No. 82-585.
    Argued October 4, 1983
    Decided November 1, 1983

      Richard L. Griffith argued the cause for appellants in both cases. With him on the briefs were Michael A. Shea, Richard R. Clifton, Hugh Shearer, and H. Mitchell D’Olier.

      William D. Dexter argued the cause for appellee. With him on the brief was Kevin T. Wakayama.

      Together with No. 82-586, Hawaiian Airlines, Inc. v. Director of Taxation of Hawaii, also on appeal from the same court.

       Briefs of amici curiae urging affirmance were filed for the State of Alaska et al. by Kenneth 0. Eikenberry, Attorney General of Washington, and Jeffrey D. Goltz, Assistant Attorney General, Norman C. Gorsuch, Attorney General of Alaska, and Diane T. Colvin, Assistant Attorney General, Robert K. Corbin, Attorney General of Arizona, Michael C. Turpén, Attorney General of Oklahoma, Chauncey H. Browning, Attorney General of West Virginia, and Jack C. McClung, Deputy Attorney General; and for the Multistate Tax Commission et al. by Eugene F. Corrigan.

      Briefs of amici curiae were filed for the State of New York by Robert Abrams, Attorney General, Peter H. Schiff, and Francis V. Dow, Assistant Attorney General; and for the Air Transport Association of America by Andrew C. Hartzell, Jr.

   Justice Marshall

delivered the opinion of the Court. These appeals present the question whether 49 U. S. C. § 1513(a) pre-empts a Hawaii statute that imposes a tax on the gross income of airlines operating within the State. We conclude that the Hawaii tax is pre-empted.

In 1970, Congress committed the Federal Government to assisting States and localities in expanding and improving the Nation’s air transportation system. See Airport and Airway Development Act of 1970, Pub. L. 91 — 258, 84 Stat. 219. In the same session, Congress established the Airport and Airway Trust Fund to funnel federal resources to local airport expansion and improvement projects. See Airport and Airway Revenue Act of 1970, Pub. L. 91-258, § 208, 84 Stat. 250. As originally devised, the Trust Fund received its revenues from several federal aviation taxes, including an 8% tax on domestic airline tickets, a $3 head tax on international flights out of the United States, and a 5% tax on air freight. See §§203, 204, 84 Stat. 238, 240 (codified, as amended, at 26 U. S. C. §§4261, 4271 (1976 ed. and Supp. V)). See generally Massachusetts v. United States, 435 U. S. 444 (1978).

Once the Airport and Airway Development Act was passed and the Trust Fund established, the question arose whether States and municipalities were still free to impose additional taxes on airlines and air travelers. In Evansville-Vanderburgh Airport, Authority Dist. v. Delta Airlines, Inc., 405 U. S. 707 (1972), this Court ruled that neither the Commerce Clause nor the Airport and Airway Development Act precluded state or local authorities from assessing head taxes on passengers boarding flights at state or local airports. In particular the Court noted: “No federal statute or specific congressional action or declaration evidences a congressional purpose to deny or pre-empt state and local power to levy charges designed to help defray the costs of airport construction and maintenance.” Id., at 721.

Following the Evansville-Vanderburgh Airport decision, Committees in both Houses of Congress held hearings on local taxation of air transportation. Both Committees concluded that the proliferation of local taxes burdened interstate air transportation, and, when coupled with the federal Trust Fund levies, imposed double taxation on air travelers. To deal with these problems, Congress passed §7(a) of the Airport Development Acceleration Act of 1973 (ADAA), the provision at issue in these appeals. See Pub. L. 93-44, §7(a), 87 Stat. 90. That section, which is currently codified at 49 U. S. C. § 1513, reads:

“(a) No State . . . shall levy or collect a tax, fee, head charge, or other charge, directly or indirectly, on persons traveling in air commerce or on the carriage of persons traveling in air commerce or on the sale of air transportation or on the gross receipts derived therefrom....
“(b) Nothing in this section shall prohibit a State . . . from the levy or collection of taxes other than those enumerated in subsection (a) of this section, including property taxes, net income taxes, franchise taxes, and sales or use taxes on the sale of goods or services. ...”

For States with taxes that were in effect prior to May 21, 1970, and would be pre-empted by § 1513(a), Congress postponed the effective date of the section until December 31, 1973. Ibid.

Appellants Aloha Airlines, Inc., and Hawaiian Airlines, Inc., are both commercial airlines that carry passengers, freight, and mail among the islands of Hawaii. Throughout the periods relevant to these appeals, appellants have been Hawaii public service companies, see Haw. Rev. Stat. §§239-2, 269-1 (1976 and Supp. 1982), and subject to the State’s public service company tax, which provides:

“There shall be levied and assessed upon each airline a tax of four per cent of its gross income each year from the airline business .... The tax imposed by this section is a means of taxing the personal property of the airline or other carrier, tangible and intangible, including going concern value, and is in lieu of the [general excise] tax imposed by chapter 237 but is not in lieu of any other tax.” §239-6 (1976).

In 1978, appellant Aloha Airlines sought refunds for taxes assessed under this provision for the carriage of passengers between 1974 and 1977 on the ground that 49 U. S. C. § 1513(a) had pre-empted Haw. Rev. Stat. § 239-6 as of December 31, 1973. In 1979, appellant Hawaiian Airlines filed a similar action seeking a refund for taxes paid between 1974 and 1978. In separate decisions, the Tax Appeal Court of the State of Hawaii rejected appellants’ pre-emption arguments, In re Aloha Airlines, Inc., No. 1772 (June 9,1978); In re Hawaiian Airlines, Inc., Nos. 1853, 1868 (Jan. 4, 1980). On consolidated appeal, the Hawaii Supreme Court affirmed, one justice dissenting, In re Aloha Airlines, Inc., 65 Haw. 1, 647 P. 2d 263 (1982). Appellants then filed timely notices of appeal, this Court noted probable jurisdiction, 459 U. S. 1101 (1983), and we now reverse.

I — ( I — i

The plain language of 49 U. S. C. § 1513(a) would appear to invalidate Haw. Rev. Stat. §239-6. Section 1513(a) expressly pre-empts gross receipts taxes on the sale of air transportation or the carriage of persons traveling in air commerce, and Haw. Rev. Stat. §239-6 is a state tax on the gross receipts of airlines selling air transportation and carrying persons traveling in air commerce. The Hawaii Supreme Court sought to avoid this direct conflict by looking beyond the language of § 1513(a) to Congress’ purpose in enacting the statute. The court concluded that Congress passed the ADAA to deal with the proliferation of local and state head taxes on airline passengers in the early 1970’s. Since Haw. Rev. Stat. §239-6 is imposed upon air carriers as opposed to air travelers, the Hawaii court reasoned that the provision did not come within the ambit of § 1513(a)’s prohibitions.

We cannot agree with the Hawaii Supreme Court’s analysis. First, when a federal statute unambiguously forbids the States to impose a particular kind of tax on an industry affecting interstate commerce, courts need not look beyond the plain language of the federal statute to determine whether a state statute that imposes such a tax is pre-empted. Thus, the Hawaii Supreme Court erred in failing to give effect to the plain meaning of § 1513(a).

Second, even if the absence of an express proscription made it necessary to go beyond the plain language of § 1513(a), nothing in the legislative history of the ADAA suggests that Congress intended to limit § 1513(a)’s pre-emptive effect to taxes on airline passengers or to save gross receipts taxes like §239-6. Although Congress passed § 1513(a) to deal primarily with local head taxes on airline passengers, the legislative history abounds with references to the fact that § 1513(a) also pre-empts state taxes on the gross receipts of airlines. For example, Senator Cannon, one of the ADAA’s sponsors, clearly stated in floor debate: “The bill prohibits the levying of State or local head taxes, fees, gross receipts taxes or other such charges either on passengers or on the carriage of such passengers in interstate commerce.” 119 Cong. Rec. 3349 (1973).

Finally, we are unpersuaded by appellee’s contention that, because the Hawaii Legislature styled § 239-6 as a property tax measured by gross receipts rather than a straightforward gross receipts tax, the provision should escape preemption under §1513(b)’s exemption for property taxes. The manner in which the state legislature has described and categorized § 239-6 cannot mask the fact that the purpose and effect of the provision are to impose a levy upon the gross receipts of airlines. Section 1513(a) expressly prohibits States from taxing “directly or indirectly” gross receipts derived from air transportation. Beyond question, a property tax that is measured by gross receipts constitutes at least an “indirect” tax on the gross receipts of airlines. A state statute that imposes such a tax is therefore pre-empted.

IV

In conclusion, we join with state courts of Alaska and New York in the view that § 1513(a) proscribes the imposition of state and local taxes on gross receipts derived from air transportation or the carriage of persons in air commerce. The judgment of the Supreme Court of the State of Hawaii is reversed, and the cases are remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

       See Hearings on S. 2397 et al. before the Subcommittee on Aviation of the Senate Committee on Commerce, 92d Cong., 2d Sess., 129-198 (1972); Hearings on H. R. 2337 et al. before the Subcommittee on Transportation and Aeronautics of the House Committee on Interstate and Foreign Commerce, 92d Cong., 2d Sess. (1972).

       See S. Rep. No. 93-12, pp. 17, 20-21 (1973); H. R. Rep. No. 93-157, pp. 4-5 (1973).

       In 1982, Congress amended 49 U. S. C. § 1513 to prohibit discriminatory property taxes imposed on air carriers. See Airport and Airway Improvement Act of 1982, Pub. L. 97-248, § 532, 96 Stat. 701 (codified at 49 U. S. C. § 1513(d) (1982 ed.)). Being enacted after the relevant periods, this amendment has no bearing on these appeals.

       Appellee concedes that the phrase “gross income,” under Haw. Rev. Stat. § 239-6, is synonymous with the phrase “gross receipts” used in 49 U. S. C. § 1513(a). See Brief for Appellee 7, n. 2.

       The Hawaii Supreme Court apparently considered itself obliged by Rice v. SantaFe Elevator Corp., 331 U. S. 218 (1947), and its progeny to examine thoroughly Congress’ intentions before declaring Haw. Rev. Stat. § 239-6 pre-empted. In re Aloha Airlines, Inc., 65 Haw. 1, 13-16, 647 P. 2d 263, 272-273 (1982). Rice and its progeny, however, involved the implicit pre-emption of state statutes. Rules developed in these cases apply when a court must decide whether a state law should be pre-empted even though Congress has not expressly legislated pre-emption. These rules, therefore, have little application when a court confronts a federal statute like § 1513(a) that explicitly pre-empts state laws.

       The Hawaii Supreme Court professed confusion over the “paradox” between § 1513(a)’s prohibition on certain state taxes on air transportation and § 1513(b)’s reservation of the States’ primary sources of revenue, such as property taxes, net income taxes, franchise taxes, and sales or use taxes. In re Aloha Airlines, Inc., supra, at 16, 647 P. 2d, at 273. We find no paradox between § 1513(a) and § 1513(b). Section 1513(a) pre-empts a limited number of state taxes, including gross receipts taxes imposed on the sale of air transportation or the carriage of persons traveling in air commerce. Section 1513(b) clarifies Congress’ view that the States are still free to impose on airlines and air carriers “taxes other than those enumerated in subsection (a),” such as property taxes, net income taxes, and franchise taxes. While neither the statute nor its legislative history explains exactly why Congress chose to distinguish between gross receipts taxes imposed on airlines and the taxes reserved in § 1513(b), the statute is quite clear that Congress chose to make the distinction, and the courts are obliged to honor this congressional choice.

       Indeed, Congress was presented an opportunity to exempt gross receipts taxes from § 1513(a), and declined to grant the exemption. During House hearings on the ADAA, a representative of the Ohio Tax Commission asked the Subcommittee responsible for the bill to expand § 1513(b) to permit state “gross receipts taxes fairly apportioned to a State,” so that Ohio could maintain a gross receipts tax similar to Hawaii’s § 239-6. See Hearings on H. R. 4082 before the Subcommittee on Transportation and Aeronautics of the House Committee on Interstate and Foreign Commerce, 93d Cong., 1st Sess., 246-253 (1973). When Congress enacted the ADAA without Ohio’s proposed amendment, the State Attorney General issued an opinion concluding that Ohio’s gross receipts tax was preempted. See Ohio Op. Atty. Gen. No. 73-117 (Nov. 20, 1973).

       See, e. g., S. Rep. No. 93-12, p. 6 (1973); H. R. Conf. Rep. No. 93-225, p. 5 (1973); 119 Cong. Rec. 18045 (1973) (statement of Sen. Cannon); id., at 17345 (statement of Rep. Devine).

       The most likely explanation for the seemingly curious way in which the legislature characterized §239-6 is that, at one time, this Court distinguished between the manner in which a state statute was measured and the subject matter of the tax when assessing the validity of the tax under the Commerce Clause. Compare Railway Express Agency, Inc. v. Virginia, 358 U. S. 434 (1959) (upholding a property tax measured by gross receipts), with Railway Express Agency, Inc. v. Virginia, 347 U. S. 359 (1954) (striking down a functionally equivalent business privilege tax). But cf. Complete Auto Transit, Inc. v. Brady, 430 U. S. 274 (1977). The constitutionality of § 239-6 is of course not at issue in these appeals.

       The unambiguous proscription contained in § 1513(a) compels us to conclude that it pre-empts Haw. Rev. Stat. § 239-6 as well as other state taxes imposed on or measured by the gross receipts of airlines. Amici point out that several States have taxation statutes similar to § 239-6 and that the ability of those States to retain revenues collected from airlines during the past decade will be affected by our decision today. We acknowledge that our interpretation of § 1513(a) may result in the disruption of state systems of taxation; we are, however, bound by the plain language of the statute. Congress clearly has the authority to regulate state taxation of air transportation in interstate commerce, see Arizona Public Service Co. v. Snead, 441 U. S. 141, 150 (1979), and we trust that Congress will amend § 1513(a) if it concludes, upon reconsideration, that the pre-emptive sweep of the current version is too great.

        Wein Air Alaska, Inc. v. State, No. 3AN 81-8582 Civil (Alaska Super. Ct., May 6,1983), appeal docketed (Alaska Sup. Ct.); Air Transport Assn. of America v. New York State Dept. of Taxation and Finance, 91 App. Div. 2d 169, 458 N. Y. S. 2d 709, aff’d, 59 N. Y. 2d 917, 453 N. E. 2d 548 (1983), cert. pending, No. 83-162; cf. State ex rel. Arizona Dept. of Revenue v. Cochise Airlines, 128 Ariz. 432, 626 P. 2d 596 (App. 1980) (§ 1513(a) pre-empts state gross receipts taxes on the carriage of passengers, but not freight, in air commerce); see also Allegheny Airlines, Inc. v. City of Philadelphia, 453 Pa. 181, 309 A. 2d 157 (1973) (finding a Philadelphia head tax on air passengers pre-empted).


author: Justice Blackmun

text:
    RUSSELLO v. UNITED STATES
    No. 82-472.
    Argued October 5, 1983
    Decided November 1, 1983

      Ronald A. Dion argued the cause for petitioner. With him on the brief was Alvin E. Entin.

      Samuel A. Alito, Jr., argued the cause for the United States. With him on the briefs were Solicitor General Lee, Assistant Attorney General Jensen, Deputy Solicitor General Frey, and Sara Criscitelli.

   Justice Blackmun

delivered the opinion of the Court. This is yet another case concerning the Racketeer Influenced and Corrupt Organizations (RICO) chapter of the Organized Crime Control Act of 1970. Pub. L. 91-452, Title IX, 84 Stat. 941, as amended, 18 U. S. C. §§ 1961-1968 (1982 ed.). At issue here is the interpretation of the chapter’s forfeiture provision, § 1963(a)(1), and, specifically, the meaning of the words “any interest [the defendant] has acquired . . . in violation of section 1962.”

On June 8, 1977, petitioner Joseph C. Russello and others were indicted for racketeering, conspiracy, and mail fraud, in violation of 18 U. S. C. §§ 1341, 1962(c) and (d), and 2. App. 5. After a jury trial in the United States District Court for the Middle District of Florida, petitioner was convicted as charged in four counts of the indictment. The jury then returned special verdicts for the forfeiture to the United States, under 18 U. S. C. § 1963(a), of four payments, aggregating $340,043.09, made to petitioner by a fire insurance company. App. 54-57. These verdicts related to the racketeering activities charged in the second count of the indictment under which petitioner had been convicted. The District Court, accordingly, entered a judgment of forfeiture against petitioner in that amount. Id., at 58.

Petitioner took an appeal to the former United States Court of Appeals for the Fifth Circuit. A panel of that court affirmed petitioner's criminal conviction, United States v. Martino, 648 F. 2d 367, 406 (1981), and this Court denied certiorari, 456 U. S. 943 (1982), as to that aspect of the case. The panel, however, reversed the judgment of forfeiture. App. 64-69. The full court granted rehearing en banc on the forfeiture issue and, by a vote of 16-7, vacated that portion of the panel opinion, and then affirmed the forfeiture judgment entered by the District Court. United States v. Martino, 681 F. 2d 952 (1982). Because of this significant division among the judges of the Court of Appeals, and because the Fifth Circuit majority, id., at 959, stated that its holding “squarely conflict[ed]” with that of the Ninth Circuit in United States v. Marubeni America Corp., 611 F. 2d 763 (1980), we granted certiorari. 459 U. S. 1101 (1983). Since then, the Seventh Circuit has issued an opinion agreeing with the Ninth Circuit. United States v. McManigal, 708 F. 2d 276, 283-287 (1983).

t — l J-H

So far as the case in its present posture is concerned, the basic facts are not in dispute. The majority opinion of the en banc court described them succinctly:

“Briefly, the evidence showed that a group of individuals associated for the purpose of committing arson with the intent to defraud insurance companies. This association in fact enterprise, composed of an insurance adjuster, homeowners, promoters, investors, and arsonists, operated to destroy at least eighteen residential and commercial properties in Tampa and Miami, Florida between July 1973 and April 1976. The panel summarized the ring’s operations as follows:
“‘At first the arsonists only burned buildings already owned by those associated with the ring. Following a burning, the building owner filed an inflated proof of loss statement and collected the insurance proceeds from which his co-conspirators were paid. Later, ring members bought buildings suitable for burning, secured insurance in excess of value and, after a burning, made claims for the loss and divided the proceeds’.” 681 F. 2d, at 953 (footnote omitted).

Specifically, petitioner was the owner of the Central Professional Building in Tampa. This structure had two parts, an original smaller section in front and a newer addition at the rear. The latter contained apartments, offices, and parking facilities. Petitioner arranged for arsonists to set fire to the front portion. He intended to use the insurance proceeds to rebuild that section. The fire, however, spread to the rear. Joseph Carter, another member of the arson ring, was the adjuster for petitioner’s insurance claim and helped him to obtain the highest payments possible. The resulting payments made up the aggregate sum of $340,043.09 mentioned above. From those proceeds, petitioner paid Carter $30,000 for his assistance.

HH H-i h — l

Title 18 U. S. C. § 1962(c) states that it shall be unlawful “for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate . . . commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.” Section 1962(d) makes it unlawful to conspire to violate § 1962(c). Section 1963(a)(1) provides that a person convicted under § 1962 shall forfeit to the United States “any interest he has acquired or maintained in violation of section 1962.”

The sole issue in this case is whether profits and proceeds derived from racketeering constitute an “interest” within the meaning of this statute and are therefore subject to forfeiture. Petitioner contends that § 1963(a)(1) reaches only “interests in an enterprise” and does not authorize the forfeiture of mere “profits and proceeds.” He rests his argument upon the propositions that criminal forfeitures are disfavored in law and that forfeiture statutes, as a consequence, must be strictly construed.

In a RICO case recently decided, this Court observed: “In determining the scope of a statute, we look first to its language. If the statutory language is unambiguous, in the absence of ‘a clearly expressed legislative intent to the contrary, that language must ordinarily be regarded as conclusive.’” United States v. Turkette, 452 U. S. 576, 580 (1981), quoting from Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U. S. 102, 108 (1980). See also Dickerson v. New Banner Institute, Inc., 460 U. S. 103, 110 (1983); Lewis v. United States, 445 U. S. 55, 60 (1980).

Here, 18 U. S. C. § 1963(a)(1) calls for the forfeiture to the United States of “any interest. . . acquired ... in violation of section 1962.” There is no question that petitioner Russello acquired the insurance proceeds at issue in violation of § 1962(c); that much has been definitely and finally settled. Accordingly, if those proceeds qualify as an “interest,” they are forfeitable.

The term “interest” is not specifically defined in the RICO statute. This silence compels us to “start with the assumption that the legislative purpose is expressed by the ordinary meaning of the words used.” Richards v. United States, 369 U. S. 1, 9 (1962). The ordinary meaning of “interest” surely encompasses a right to profits or proceeds. See Webster’s Third New International Dictionary 1178 (1976), broadly defining “interest,” among other things, as a “good,” “benefit,” or “profit.” Random House Dictionary of the English Language 741 (1979) defines interest to include “benefit.” Black’s Law Dictionary 729 (5th ed., 1979) provides a significant definition of “interest”: “The most general term that can be employed to denote a right, claim, title, or legal share in something.” It is thus apparent that the term “interest” comprehends all forms of real and personal property, including profits and proceeds.

This Court repeatedly has relied upon the term “interest” in defining the meaning of “property” in the Due Process Clause of the Fourteenth Amendment of the Constitution. See Perry v. Sindermann, 408 U. S. 593, 601 (1972) (“‘property’ denotes a broad range of interests”); Logan v. Zimmerman Brush Co., 455 U. S. 422, 430 (1982); Jago v. Van Curen, 454 U. S. 14, 17-18 (1981). It undoubtedly was because Congress did not wish the forfeiture provision of § 1963(a) to be limited by rigid and technical definitions drawn from other areas of the law that it selected the broad term “interest” to describe those things that are subject to forfeiture under the statute. Congress selected this general term apparently because it was fully consistent with the pattern of the RICO statute in utilizing terms and concepts of breadth. Among these are “enterprise” in § 1961(4); “racketeering activity” in § 1961(1) (1982 ed.); and “participate” in § 1962(c).

Petitioner himself has not attempted to define the term “interest” as used in § 1963(a)(1). He insists, however, that the term does not reach money or profits because, he says: “‘Interest,’ by definition, includes of necessity an interest in something.” Brief for Petitioner 9. Petitioner then asserts that the “something” emerges from the wording of § 1963(a)(1) itself, that is, an interest “acquired ... in violation of section 1962,” and thus derives its meaning from the very activities barred by the statute. In other words, a direct relationship exists between that which is subject to forfeiture as a result of racketeering activity and that which constitutes racketeering. This relationship, it is said, means that forfeiture is confined to an interest in an “enterprise” itself. Petitioner derives support for this approach from United States v. Marubeni America Corp., supra, and from language contained in two Federal District Court opinions, United States v. Meyers, 432 F. Supp. 456, 461 (WD Pa. 1977), and United States v. Thevis, 474 F. Supp. 134, 142 (ND Ga. 1979), aff’d on other grounds, 665 F. 2d 616 (CA5 1982). He also now relies on the McManigal case, supra, recently decided by the Seventh Circuit. Tr. of Oral Arg. 4.

We do not agree. Every property interest, including a right to profits or proceeds, may be described as an interest in something. Before profits of an illegal enterprise are divided, each participant may be said to own an “interest” in the ill-gotten gains. After distribution, each will have a pos-sessory interest in currency or other items so distributed. We therefore conclude that the language of the statute plainly covers the insurance proceeds petitioner received as a result of his arson activities.

> HH

We are fortified in this conclusion by our examination of the structure of the RICO statute. We disagree with those courts that have felt that a broad construction of the word “interest” is necessarily undermined by the statute’s other forfeiture provisions. The argument for a narrow construction of § 1963(a)(1) is refuted by the language of the succeeding subsection (a)(2). The former speaks broadly of “any interest. . . acquired,” while the latter reaches only “any interest in . . . any enterprise which [the defendant] has established^] operated, controlled, conducted, or participated in the conduct of, in violation of section 1962.” Similar less expansive language appears in §§ 1962(b) and 1964(a). “[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” United States v. Wong Kim Bo, 472 F. 2d 720, 722 (CA5 1972). See United States v. Wooten, 688 F. 2d 941, 950 (CA4 1982). Had Congress intended to restrict § 1963(a)(1) to an interest in an enterprise, it presumably would have done so expressly as it did in the immediately following subsection (a)(2). See North Haven Board of Education v. Bell, 456 U. S. 512, 521 (1982); United States v. Naftalin, 441 U. S. 768, 773-774 (1979). In the latter case, id., at 773, the Court said: “The short answer is that Congress did not write the statute that way.” We refrain from concluding here that the differing language in the two subsections has the same meaning in each. We would not presume to ascribe this difference to a simple mistake in draftsmanship.

The evolution of these statutory provisions supplies further evidence that Congress intended § 1963(a)(1) to extend beyond an interest in an enterprise. An early proposed version of RICO, S. 1861, 91st Cong., 1st Sess. (1969), had a single forfeiture provision for § 1963(a) that was limited to “all interest in the enterprise.” This provision, however, later was divided into the present two subsections and the phrase “in the enterprise” was excluded from the first. Where Congress includes limiting language in an earlier version of a bill but deletes it prior to enactment, it may be presumed that the limitation was not intended. See Arizona v. California, 373 U. S. 546, 580-581 (1963). See Weiner, Crime Must Not Pay: RICO Criminal Forfeiture in Perspective, 1981 N. Ill. U. L. Rev. 225, 238, and n. 49. It is no answer to say, as petitioner does, Brief for Petitioner 17-18, that if the term “interest” were as all-encompassing as suggested by the majority opinion of the Court of Appeals, § 1963(a)(2) would have no meaning independent of § 1963(a)(1), and would be mere surplusage. This argument is plainly incorrect. Subsection (a)(1) reaches “any interest,” whether or not in an enterprise, provided it was “acquired ... in violation of section 1962.” Subsection (a)(2), on the other hand, is restricted to an interest in an enterprise, but that interest itself need not have been illegally acquired. Thus, there are things forfeit-able under one, but not the other, of each of the subsections.

We note that the RICO statute’s definition of the term “enterprise” in §1961(4) encompasses both legal entities and illegitimate associations-in-fact. See United States v. Turkette, 452 U. S., at 580-593. Forfeiture of an interest in an illegitimate association-in-fact ordinarily would be of little use because an association of that kind rarely has identifiable assets; instead, proceeds or profits usually are distributed immediately. Thus, construing § 1963(a)(1) to reach only interests in an enterprise would blunt the effectiveness of the provision in combating illegitimate enterprises, and would mean that “[w]hole areas of organized criminal activity would be placed beyond” the reach of the statute. United States v. Turkette, 452 U. S., at 589.

Petitioner stresses that 21 U. S. C. § 848(a)(2), contained in the Controlled Substances Act, 84 Stat. 1242, as amended, specifically authorizes the forfeiture of “profits” obtained in a continuing criminal enterprise engaged in certain drug offenses. Brief for Petitioner 6-7. The Ninth Circuit in Marubeni, 611 F. 2d, at 766, n. 7, placed similar reliance upon § 848(a)(2) and observed that the two statutes were passed by the same Congress in the same month. We feel, however, that the specific mention of “profits” in the Controlled Substances Act cannot be accepted as an indication that the broader language of § 1963(a)(1) was not meant, to reach profits as well as other types of property interests. Language in one statute usually sheds little light upon the meaning of different language in another statute, even when the two are enacted at or about the same time. The term “profits” is specific; the term “interest” is general. The use of the specific in the one statute cannot fairly be read as imposing a limitation upon the general provision in the other statute. In addition, the RICO statute was aimed at organized crime’s economic power in all its forms, and it was natural to use the broad term “interest” to fulfill that aim. In contrast, the narcotics activity proscribed by §848 usually generates only monetary profits, a fact which would explain the use of the narrower term in § 848(a)(2).

Petitioner, of course, correctly suggests that Members of Congress who voted for the RICO statute were aware of the Controlled Substances Act. See 116 Cong. Rec. 33651 (1970) (remarks of Rep. Brotzman); id., at 1180-1182 (remarks of Sen. Thurmond); id., at 33631 (remarks of Rep. Weicker); id., at 33646 (remarks of Rep. Kastenmeier); id., at 35318 (remarks of Rep. Anderson). It is most unlikely, however, that without explanation a potent forfeiture weapon was withheld from the RICO statute, intended for use in a broad assault on organized crime, while the same weapon was included in the Controlled Substances Act, meant for use in only one part of the same struggle. If this was Congress’ intent, one would expect it to have said so in clear and understandable terms.

Petitioner also suggests that subsequent proposed legislation demonstrates that the RICO forfeiture provision of 1970 excludes profits. Brief for Petitioner 29-34. The bills to which petitioner refers, however, were introduced in order to overcome the decisions in Marubeni, Meyers, and Thevis. See, e. g., S. 2320, 97th Cong., 2d Sess. (1982). The introduction of these bills hardly suggests that their sponsors viewed those decisions as correct interpretations of § 1963(a)(1). See United States v. Gordon, 638 F. 2d 886, 888, n. 5 (CA6), cert. denied, 452 U. S. 909 (1981). In any event, it is well settled that The views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.’” Jefferson County Pharmaceutical Assn. v. Abbott Laboratories, 460 U. S. 150, 165, n. 27 (1983), quoting from United States v. Price, 361 U. S. 304, 313 (1960). See also United States v. Clark, 445 U. S. 23, 33, n. 9 (1980).

Neither are we persuaded by petitioner’s argument that his position is supported by the fact that certain state racketeering statutes expressly provide for the forfeiture of “profits,” “money,” “interest or property,” or “all property, real or personal,” acquired from racketeering. Brief for Petitioner 8-9. Nearly all of the state statutes postdate the Meyers and Thevis District Court decisions. See, e. g., Colo. Rev. Stat. § 18-17-106 (Supp. 1982) (enacted in 1981); R. I. Gen. Laws §7-15-3 (Supp. 1982) (enacted in 1979). The legislatures of those States presumably employed language different from that of § 1963(a)(1) so as to avoid narrow interpretations of their laws along the lines of the narrow interpretations given the federal statute by the courts in Meyers and Thevis.

y

If it is necessary to turn to the legislative history of the RICO statute, one finds that that history does not reveal, as petitioner would have us hold, see Brief for Petitioner 11-21, a limited congressional intent.

The legislative history clearly demonstrates that the RICO statute was intended to provide new weapons of unprecedented scope for an assault upon organized crime and its economic roots. Congress’ statement of findings and purpose in enacting Pub. L. 91-452, 84 Stat. 922, is set forth in its § 1. This statement dramatically describes the problem presented by organized crime. Congress declared, id., at 923: “It is the purpose of this Act to seek the eradication of organized crime in the United States ... by providing enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in organized crime.” This Court has recognized the significance of this statement of findings and purpose. United States v. Turkette, 452 U. S., at 588-589. Further, Congress directed, by § 904(a) of Pub. L. 91-452, 84 Stat. 947: “The provisions of this title shall be liberally construed to effectuate its remedial purposes.” So far as we have been made aware, this is the only substantive federal criminal statute that contains such a directive; a similar provision, however, appears in the Criminal Appeals Act, 18 U. S. C. §3731.

Congress emphasized the need to fashion new remedies in order to achieve its far-reaching objectives. See S. Rep. No. 91-617, p. 76 (1969).

“What is needed here . . . are new approaches that will deal not only with individuals, but also with the economic base through which those individuals constitute such a serious threat to the economic well-being of the Nation. In short, an attack must be made on their source of economic power itself, and the attack must take place on all available fronts.” Id., at 79.

Senator Scott spoke of “new legal weapons,” 116 Cong. Rec. 819 (1970), and Senator McClellan stressed the need for new penal remedies. Id., at 591-592. Representative Poff, floor manager of the bill in the House, made similar observations. Id., at 35193. Representative Rodino observed that “[djrastic methods . . . are essential, and we must develop law enforcement measures at least as efficient as those of organized crime.” Id., at 35199. The RICO statute was viewed as one such “extraordinary” weapon. Id., at 602 (remarks of Sen. Hruska). And the forfeiture provision was intended to serve all the aims of the RICO statute, namely, to “punish, deter, incapacitate, and . . . directly to remove the corrupting influence from the channels of commerce.” Id., at 18955 (remarks of Sen. McClellan).

The legislative history leaves no doubt that, in the view of Congress, the economic power of organized crime derived from its huge illegal profits. See Blakey, The RICO Civil Fraud Action in Context: Reflections on Bennett v. Berg, 58 Notre Dame L. Rev. 237, 249-256 (1982). Congress could not have hoped successfully to attack organized crime’s economic roots without reaching racketeering profits. During the congressional debates, the sources and magnitude of organized crime’s income were emphasized repeatedly. See, e. g., 115 Cong. Rec. 5873, 5884-5885 (1969); 116 Cong. Rec. 590, 592 (1970) (remarks of Sen. McClellan). From all this, the intent to authorize forfeiture of racketeering profits seems obvious. H. R. Rep. No. 91-1549, p. 57 (1970), recites that the forfeiture provision extends to “all property and interests, as broadly defined, which are related to the violations.”

It is true that Congress viewed the RICO statute in large part as a response to organized crime’s infiltration of legitimate enterprises. United States v. Turkette, 452 U. S., at 591. But Congress’ concerns were not limited to infiltration. The broader goal was to remove the profit from organized crime by separating the racketeer from his dishonest gains. Forfeiture of interest in an enterprise often would do little to deter; indeed, it might only encourage the speedy looting of an infiltrated company. It is unlikely that Congress intended to enact a forfeiture provision that provided an incentive for activity of this kind while authorizing forfeiture of an interest of little worth in a bankrupt shell.

We are not persuaded otherwise by the presence of a 1969 letter from the then Deputy Attorney General to Senator McClellan. See Measures Relating to Organized Crime: Hearings before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary, 91st Cong., 1st Sess., 407 (1969). That letter, with its reference to “one’s interest in the enterprise” does not indicate, for us, any congressional intent to preclude forfeiture of racketeering profits. The reference, indeed, is not to § 1963(a) as finally enacted but to an earlier version in which forfeiture was to be expressly limited to an interest in an enterprise. The letter was merely following the language of the then pending bill. Furthermore, the real purpose of the sentence was not to explain what the statutory provision meant, but to explain why the Department of Justice believed it was constitutional.

The rule of lenity, which this Court has recognized in certain situations of statutory ambiguity, see United States v. Turkette, 452 U. S., at 587, n. 10, has no application here. That rule “comes into operation at the end of the process of construing what Congress has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers.” Callanan v. United States, 364 U. S. 587, 596 (1961). Here, the language of the RICO forfeiture provision is clear, and “the rule of lenity does not come into play.” United States v. Turkette, 452 U. S., at 588, n. 10.

We therefore disagree with the reasoning of the respective courts in the Marubeni, McManigal, Meyers, and Thevis cases, and we affirm the judgment of the United States Court of Appeals for the Fifth Circuit.

It is so ordered.

       The Solicitor General, while perceiving “a factual distinction between Marubeni and the present case,” felt that “the holding and reasoning of Marubeni would require the Ninth Circuit to reach the opposite result from the Fifth Circuit on the facts of the instant case.” Memorandum for United States 4, n. 3. Accordingly, he joined in the prayer that a writ of certiorari be granted.

       There may well be factual situations to which both subsections apply. The subsections, however, are clearly not wholly redundant.

       In our ruling today, we recognize that we have not resolved any ambiguity that might be inherent in the terms “profits” and “proceeds.” Our use of those terms is not intended to suggest a particular means of calculating the precise amount that is subject to RICO forfeiture in any given case. We hold simply that the “interests” subject to forfeiture under § 1963(a)(1) are not limited to interests in an enterprise.


author: Justice Rehnquist

text:
    NORFOLK REDEVELOPMENT AND HOUSING AUTHORITY v. CHESAPEAKE & POTOMAC TELEPHONE COMPANY OF VIRGINIA et al.
    No. 81-2332.
    Argued October 3, 1983
    Decided November 1, 1983

      Francis N. Crenshaw argued the cause for petitioner. With him on the brief were Howard W. Martin, Jr., and Ann K. Sullivan.

      Joshua I. Schwartz argued the cause for the Secretary of Housing and Urban Development as respondent under this Court’s Rule 19.6 in support of petitioner. With him on the brief were Solicitor General Lee, Deputy Solicitor General Claiborne, and Geoffrey I. Stewart.

      Joseph L. Kelly argued the cause for respondent Chesapeake and Potomac Telephone Co. of Virginia. With him on the brief was Jack E. Greer.

      Briefs of amici curiae urging reversal were filed for the Boston Redevelopment Authority by William A. Zucker; for the Community Redevelopment Agencies of the City of Los Angeles et al. by James Dexter Clark and Richard E. Brandt; for the United States Conference of Mayors et al. by Stephen Chappie, John J. Gunther, Bronson C. La Follette, Attorney General of Wisconsin, and Richard B. Geltman; for the National Institute of Municipal Law Officers by J. Lamar Shelley, John W. Witt, Henry W. Underhill, Jr., Benjamin L. Brown, Roy D. Bates, George Agnost, James B. Brennan, Roger F. Cutler, Walter M. Powell, Frederick A. 0. Schwarz, Jr., William H. Taube, William I. Thornton, Jr., Max P. Zall, and Charles S. Rhyne; for the City of New York by Frederick A. 0. Schwarz, Jr., and Leonard Koemer; and for the City of Norfolk, Virginia, by Philip R. Trapani and Lydia Calvert Taylor.

      Briefs of amici curiae urging affirmance were filed for the American Gas Association by Kevin B. Belford; for Brooklyn Union Gas Co. by Dana Contratto; and for Mountain States Telephone and Telegraph Co. et al. by Dale G. Higer.

   Justice Rehnquist

delivered the opinion of the Court.

Respondent Chesapeake & Potomac Telephone Co. of Virginia (C&P) was required to relocate some of its telephone transmission facilities by reason of a street realignment. It sought compensation from petitioner Norfolk Redevelopment and Housing Authority (NRHA), the local government agency responsible for the urban renewal plan which caused the street realignment. C&P claimed that it was a “displaced person” as that term is defined in the Uniform Relocation Act, passed by Congress in 1970. We hold that C&P is not a “displaced person” within the meaning of the Act.

The Relocation Act provides that any person “displaced” from his home or place of business by a federal or federally funded project is entitled to relocation benefits, including reimbursement for the “actual reasonable expenses in moving himself, his family, business, farm operation, or other personal property.” 42 U. S. C. § 4622(a)(1). The Act by its terms binds only federal agencies; but a federal agency may not provide funds for state projects involving condemnation without first receiving “satisfactory assurances” that displaced persons will be given such relocation payments and assistance “as are required to be provided by a Federal agency” under the Act. 42 U. S. C. § 4630. In order to qualify for federal funds, therefore, many States, such as Virginia, see Va. Code §25-235 et seq. (1980 and Supp. 1983), have adopted legislation modeled on the Relocation Act.

NRHA is a political subdivision of the State of Virginia, located in the city of Norfolk. During the 1960’s, NRHA began four redevelopment projects in Norfolk for which federal funds were provided under the urban renewal program contained in Title I of the Housing Act of 1949, 63 Stat. 414, 42 U. S. C. § 1450 et seq. (1976 ed. and Supp. V). The development plans approved by the city and carried out by NRHA required the reshaping of certain land parcels, which in turn required a realignment of street patterns. After acquiring the land on both sides of the streets in question, NRHA successfully petitioned the city to close off those streets or parts thereof. Stipulations of Fact Nos. 5, 6, App. 39-41. New streets were constructed in accordance with the development plans.

C&P is a privately owned utility company engaged in the business of selling telephone and other telecommunication services in the city of Norfolk and throughout Virginia. To serve its customers, C&P had placed telephone transmission facilities, including manholes, conduits, cables, and accessory fittings, within the public rights-of-way of certain streets throughout Norfolk, including streets within the urban renewal project areas. When the streets were realigned, C&P was forced to relocate some of its facilities. The manholes and conduits, too massive to move, were simply abandoned in place. The telephone cables were withdrawn and, for the most part, sold for their scrap value, though some cable was stored for possible reuse. App. 100-101 (testimony of Mr. Tucker). Substitute facilities were installed beneath the new streets to prevent any interruption in service.

C&P sought reimbursement from NRHA for the expenses it incurred in this relocation, claiming that it was a “displaced person” within the meaning of the Relocation Act. After a series of administrative rejections, C&P sued NRHA in the United States District Court for the Eastern District of Virginia. The District Court denied relief to C&P, but on appeal its decision was reversed by the Court of Appeals for the Fourth Circuit. Chesapeake & Potomac Telephone Co. of Virginia v. Landrieu, 674 F. 2d 298 (1982). That court held that the definitional provisions of the Relocation Act compelled the conclusion that a utility was not excluded from the definition of “displaced person” under the Act, and that C&P was entitled to compensation as a “displaced person” for the sort of expenses incurred here.

We granted certiorari to review the judgment of the Court of Appeals. 459 U. S. 1145 (1983). We now reverse. Our analysis of the statute and its legislative history convinces us that in passing the Relocation Act Congress addressed the needs of residential and business tenants and owners, and did not deal with the separate problem posed by the relocation of utility service lines. We hold, therefore, that the Relocation Act did not change the long-established common-law principle that a utility forced to relocate from a public right-of-way must do so at its own expense; it is not a “displaced person” as that term is defined in the Act.

There is no doubt that a utility company could, under certain circumstances, be a “displaced person” within the meaning of the Relocation Act. Businesses as well as natural persons are eligible for relocation benefits. Thus, for example, if a branch office of C&P were located in a building condemned by the NRHA, C&P might well be entitled to recover the cost of moving its office equipment and furnishings. C&P, just like any other legitimate business, would be “displaced” by the federally funded project. But whether C&P can be said to be “displaced” within the meaning of the Act when it relocates telephone lines because an urban renewal project calls for realignment of existing street patterns is a different question which requires more detailed analysis. When streets containing utility conduits are realigned, C&P is not “just like any other legitimate business”; it faces a problem unique to utilities.

Under the traditional common-law rule, utilities have been required to bear the entire cost of relocating from a public right-of-way whenever requested to do so by state or local authorities. 12 E. McQuillin, Law of Municipal Corporations § 34.74a (3d ed. 1970); 4A J. Sackman, Nichols’ Law of Eminent Domain § 15.22 (rev. 3d ed. 1981). This rule was recognized and approved by this Court as long ago as New Orleans Gas Light Co. v. Drainage Comm’n of New Orleans, 197 U. S. 453, 462 (1905) (holding that the injury sustained by the utility is damnum absque injuria).

It is a well-established principle of statutory construction that “[t]he common law . . . ought not to be deemed to be repealed, unless the language of a statute be clear and explicit for this purpose.” Fairfax’s Devisee v. Hunter’s Lessee, 7 Cranch 603, 623 (1813). Since the elements of the federal law of eminent domain are largely derived from the common law, see, e. g., United States v. Miller, 317 U. S. 369 (1943), this canon of construction has a force in this case that it might not have in other contexts of federal statutory construction. We must, therefore, be satisfied that Congress addressed the problem of utility relocation costs in the Relocation Act before we can conclude that C&P is entitled to the benefits it seeks. “As in all cases of statutory construction, our task is to interpret the words of th[e] statut[e] in light of the purposes Congress sought to serve.” Chapman v. Houston Welfare Rights Org., 441 U. S. 600, 608 (1979).

The passage of the Relocation Act in 1970 ended a decade of close consideration of the problems faced by persons displaced by federal and federally funded projects. See Alexander v. United States Dept. of HUD, 441 U. S. 39, 49 (1979). The principal sponsor of the bill, Senator Muskie, noted that over 50 federal programs resulted in condemnation proceedings and that the victims of such proceedings received widely varying treatment. “Nearly all federally assisted programs have differing, if not conflicting, provisions for helping those displaced. They range from no assistance in some cases to liberal benefits and protection in others.” 115 Cong. Rec. 31533 (1969). In part, the Uniform Relocation Act was passed, as its name suggests, simply to ensure uniform treatment of persons displaced by condemnation.

Another, equally important, purpose of the Act was to ensure that persons displaced by federal and federally funded programs would “not suffer disproportionate injuries as a result of programs designed for the benefit of the public as a whole.” 42 U. S. C. §4621. Under traditional concepts of eminent domain, a homeowner would receive only the market value of his condemned house. H. R. Rep. No. 91-1656, p. 8 (1970). A tenant at will, residing or doing business at condemned premises, received nothing. Id., at 12. Yet both would incur significant, perhaps devastating, expenses in moving personal property. S. Rep. No. 91-488, pp. 6-7 (1969); H. R. Rep. No. 91-1656, supra, at 2-3. The Relocation Act was intended to alleviate the “disproportionate injuries” suffered by such persons.

In pursuit of both equity and uniformity, Congress relied heavily on prior legislation governing specific federal programs. For the relocation provisions at issue here, Congress adopted as its principal model the relocation provisions in §501 through §511 of the Federal-Aid Highway Act of 1968 (1968 Highway Act), Pub. L. 90-495, 82 Stat. 830-835. The legislative history is explicit that the Relocation Act was designed to extend the coverage of that pre-existing program to all federal agencies, with modifications “only as necessary to achieve a system of requirements and aids that can be applied uniformly in all Federal and federally assisted programs.” S. Rep. No. 91-488, supra, at 2. See also H. R. Rep. No. 91-1656, supra, at 2; 115 Cong. Rec. 31534 (1969) (remarks of Sen. Mundt). Much of the language of the Relocation Act, including the declaration of policy, the definitions of “person,” “business,” and “displaced person,” as well as the formula for calculating relocation benefits, is taken directly from the 1968 Highway Act.

In divining congressional intent, therefore, it is instructive to note that the claims made by C&P in this case would not have been countenanced under the 1968 Highway Act. Utility relocation costs necessitated by federally funded highway projects were already specifically governed by a separate provision, 23 U. S. C. § 123, which predated and was left intact by the 1968 Act. Careful consideration of this provision demonstrates that Congress considered utility relocation as a problem separate and distinct from the plight of “displaced” persons dealt with in the 1968 Highway Act and later, more generally, in the Relocation Act.

Title 23 U. S. C. § 123 had its origins in S. Rep. No. 1093, 83d Cong., 2d Sess., 12-13 (1954). In 1954, the Senate Committee on Public Works “heard considerable testimony from owners and operators of various public utilities concerning the heavy financial burden placed upon them when reconstruction or modernization of highways requires that their facilities be moved from their prior locations on the highway right-of-way.” Id., at 12. But the Committee tentatively concluded that, since the question was governed by long-established state law, it was “neither feasible nor desirable for the Federal Government to give direction to those local relationships by force of application of Federal funds.” Id., at 13.

The Committee did, however, authorize a study of the problem, and this study led to the adoption of §111 of the Federal-Aid Highway Act of 1956 (1956 Highway Act), Pub. L. 84-627, 70 Stat. 383. Some States had, by statute or practice, altered the common law in order to reimburse utilities for the costs of relocation. Congress felt that such reimbursement should be considered a legitimate project expense for which the Federal Government would contribute its pro rata share. Thus, § 111 provided that when a State, in accordance with state law, pays the costs of relocation of a utility necessitated by a federally funded highway project, “Federal funds may be used to reimburse the State for such cost in the same proportion as Federal funds are expended on the project.” 23 U. S. C. § 123(a). The question of utility reimbursement was, thus, left to the laws of the individual States, with no congressional displacement of those laws. The House Report accompanying the 1956 Highway Act specifically stressed: “There is no requirement in this section, either expressed or implied, that a State must pay all or any part of utility relocation costs.” H. R. Rep. No. 2022, 84th Cong., 2d Sess., 14 (1956).

In response to the 1956 Highway Act, a number of States passed legislation providing for reimbursement of the cost of relocating utility facilities for federal-aid highway projects. The Senate Committee on Public Works expressed concern over “this drastic change in existing practices,” noting that “the use of Federal funds for reimbursement to the States for this purpose will increase substantially, thereby reducing the amount of Federal funds available for construction of highways.” S. Rep. No. 1407, 85th Cong., 2d Sess., 28 (1958). In response, the Committee proposed to put a 70% cap on federal contributions to States for reimbursement of utilities. Ibid. This limitation was rejected in the final bill, however, and the only amendment to 23 U. S. C. § 123 was a proviso that reimbursement be made “only after evidence satisfactory to the Secretary shall have been presented to him substantiating the fact that the State has paid such cost from its own funds . . . .” Pub. L. 85-381, § 11(a), 72 Stat. 94-95. Thus, after careful consideration of the alternatives, the relations between utilities and the States were left, once again, to state law. No federal right to reimbursement was ever granted to utilities, although pro rata federal reimbursement remained available to the States if state law required reimbursement of utilities.

As noted, the 1968 Highway Act did nothing to change this situation. Title 23 U. S. C. § 123 was left untouched. The relocation provisions in § 501 through § 511 of the 1968 Act were directed at a separate problem: the plight of those displaced from their homes or places of business. H. R. Rep. No. 1584, 90th Cong., 2d Sess., 20 (1968); S. Rep. No. 1340, 90th Cong., 2d Sess., 7 (1968). Utility relocation costs were never mentioned and, given 23 U. S. C. § 123, were clearly not intended to be covered by §501 through §511.

The history of the Federal-Aid Highway Act from 1954 to 1968 shows, therefore, that Congress considered utility relocation costs and the expenses incurred by “displaced persons” to be separate and distinct problems calling for separate and distinct solutions. Congress showed that it was aware of the common-law rule that utilities must bear their own relocation expenses, and it proved unwilling, after extensive consideration and debate, to federalize the relations between utilities and state and local governments.

In the Relocation Act, Congress chose to deal with only one of these two problems. In modifying and extending §501 through §511 of the 1968 Highway Act, Congress was addressing the needs of residential and business tenants and owners, living and working in buildings that would be bulldozed by federal and federally funded programs. 115 Cong. Rec. 31533 (1969) (remarks of Sen. Muskie) (expressing his concern at “the bulldozing of hundreds of thousands of people from their homes and businesses annually”). Section 220 of the Relocation Act repealed those sections of prior law that had been superseded or rendered superfluous by the Relocation Act, including §501 through §511 of the 1968 Highway Act. See H. R. Rep. No. 91-1656, pp. 21, 32-38 (1970). Yet 23 U. S. C. § 123, governing utility relocation costs occasioned by federally funded highway projects, was left intact. It was neither contradicted nor rendered superfluous because it addressed a problem outside the scope of the Relocation Act.

At no point in the extensive hearings, congressional debates, or Committee Reports was it ever suggested that the Relocation Act would alter the state rules governing utility relocation expenses. Given that Congress had hitherto expressly declined to alter those rules, after extensive consideration and debate, the conclusion seems inescapable that Congress did not do so in a fit of absentmindedness when it modified and extended the provisions of the 1968 Highway Act, provisions directed at a different problem.

Virginia has continuously recognized the common-law rule that a utility forced to relocate from a public right-of-way must do so at its own expense. In Potomac Electric Power Co. v. Fugate, 211 Va. 745, 747-748, 180 S. E. 2d 657, 658-659 (1971), the Supreme Court of Virginia held that a franchise agreement, such as that between Norfolk and C&P, which allows a utility to place its facilities in public streets is revocable at will and confers no property right on the utility. Established practice under the franchise agreement between Norfolk and C&P was to the same effect. C&P has always in the past borne all costs of relocation and has included those expenses as part of its operating expenses within the rate structure approved by the State Corporation Commission. Stipulations of Fact Nos. 10, 11, App. 43-44. We hold that the Relocation Act did not grant utilities such as C&P a new, federal right to reimbursement for expenses of the sort incurred here.

The judgment of the Court of Appeals is

Reversed.

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

       The full title of the Act is the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 84 Stat. 1894, 42 U. S. C. § 4601 et seq.

       Agreements were worked out between the United States Department of Housing and Urban Development (HUD) and NRHA for each of the four projects, providing that HUD would furnish two-thirds of the net project cost in cash, while the city of Norfolk would contribute the remaining one-third “in kind,” by means of public improvements such as streets, schools, and parks. See Stipulation of Fact No. 9, App. 42-43; App. 187-188, 194 (testimony of Mr. Rice).

       The facilities were placed under the streets pursuant to an 1898 franchise agreement between the city and C&P’s predecessor, Southern Bell Telephone Co. See Exhibit No. 1, App. 228-243. Under the terms of that agreement, the city could require C&P to move its facilities at any time, with all expenses of the move to be borne by C&P. Stipulations of Fact Nos. 10, 11, App. 43-44.

       Section 101(6) of the Relocation Act, as set forth in 42 U. S. C. § 4601(6), provides as follows:
      “The term ‘displaced person’ means any person who, on or after January 2, 1971, moves from real property, or moves his personal property from real property, as a result of the acquisition of such real property, in whole or in part, or as the result of the written order of the acquiring agency to vacate real property, for a program or project undertaken by a Federal agency, or with Federal financial assistance; and solely for the purposes of sections 4622(a) and (b) and 4625 of this title, as a result of the acquisition of or as the result of the written order of the acquiring agency to vacate other real property, on which such person conducts a business or farm operation, for such program or project.”

       After C&P was turned down by NRHA, it appealed to the Richmond office of HUD. That agency also rejected the claim and was joined as a defendant in this suit. The basis for C&P’s appeal from the local agency to the federal agency is contained in a regulation issued by HUD, 24 CFR § 42.707 (1983). The statutory authorization for such appeal is unclear, but neither party questions the validity of the regulation in question, and we proceed on the assumption that such review by HUD was authorized by the Act, and that the present litigation involves only the interpretation of the relevant provisions of the Relocation Act.

       “Person” is defined in the Act to include “any individual, partnership, corporation, or association.” 42 U. S. C. § 4601(5). The term “business” includes “any lawful activity, excepting a farm operation, conducted primarily ...(B) for the sale of services to the public . . . .” 42 U. S. C. §4601(7).

       See also, Robert C. Herd & Co. v. Krawill Machinery Corp., 359 U. S. 297, 304-305 (1959); Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 437 (1907); Shaw v. Railroad Co., 101 U. S. 557, 565 (1880).

       See 42 U. S. C. §4621 (statement of purpose); S. Rep. No. 91-488, pp. 1-8 (1969); H. R. Rep. No. 91-1656, pp. 1-3 (1970).

       See S. Rep. No. 91-488, supra, at 4, 6-7, 9; H. R. Rep. No. 91-1656, supra, at 3

       The same sources also indicate reliance on § 114 of the Housing Act of 1949, as amended by the Housing and Urban Development Act of 1968, Pub. L. 90-448, 82 Stat. 526. Section 114 made no mention of utility relocation costs, and HUD regulations promulgated under the Act specifically state that utilities have no right to reimbursement for expenses incurred when relocating to accommodate an urban renewal project. If, however, state law requires that such compensation be paid to the utility by the state or local agency involved in the project, then the amount paid is considered a legitimate project expenditure to which HUD will contribute its pro rata share. See HUD Urban Renewal Handbook, RHA 7209.1, ch. 2, pp. 4-5 (1969).
      Section 114 was repealed by § 220(a)(5) of the Relocation Act, and HUD regulations have been extensively revised to reflect the new law. The regulation governing utility relocation costs, however, remains unchanged.

       Compare § 501 of the 1968 Highway Act (“to insure that a few individuals do not suffer disproportionate injuries as a result of programs designed for the benefit of the public as a whole”) with § 201 of the Relocation Act, 42 U. S. C. § 4621 (“to establish a uniform policy for the fair and equitable treatment of persons displaced as a result of Federal and federally assisted programs in order that such persons shall not suffer disproportionate injuries as a result of programs designed for the benefit of the public as a whole”).

       Compare § 511(1) of the 1968 Highway Act (“The term ‘person’ means . . . any individual, partnership, corporation, or association which is the owner of a business . . .”) with § 101(5) of the Relocation Act, 42 U. S. C. § 4601(5), set out in n. 6, supra.

       Compare § 511(4) of the 1968 Highway Act (“The term ‘business’ means any lawful activity conducted primarily . . . (B) for the sale of services to the public . . .”) with § 101(7) of the Relocation Act, 42 U. S. C. § 4601(7), set out in n. 6, supra.

       Compare § 511(3) of the 1968 Highway Act (“any person who moves from real property ... as a result of the acquisition or reasonable expectation of acquisition of such real property, which is subsequently acquired, in whole or in part, for a Federal-aid highway . . .”) with § 101(6) of the Relocation Act, 42 U. S. C. § 4601(6), set out in n. 4, supra.

       Compare §505(a) of the 1968 Highway Act (“actual reasonable expenses in moving himself, his family, his business, or his farm operation, including personal property”) with § 202(a)(1) of the Relocation Act, 42 U. S. C. § 4622(a)(1) (“actual reasonable expenses in moving himself, his family, business, farm operation, or other personal property”).

       Public Utility Relocation Incident to Highway Improvement, H. R. Doc. No. 127, 84th Cong., 1st Sess. (1955).

       “During 1956 and 1957, legislation which would provide for payment by the State of the cost of relocating public-utility facilities was considered by the legislative assemblies in 40 States. Such legislation was passed in 22 States, but was vetoed in 6 States, so it became law in 16 States. Under these 16 State laws only 1 State will pay the cost of relocating utility facilities on all State-maintained highways, 5 relate to all Federal-aid projects, and 10 relate to the projects on the Interstate System only, where the Federal share of the cost is at least 90 percent.” S. Rep. No. 1407, 85th Cong., 2d Sess., 28 (1958).

       See also S. Rep. No. 91-488, pp. 4, 6, 9 (1969); H. R. Rep. No. 91-1656, pp. 2-3 (1970); 115 Cong. Rec. 31534 (1969) (remarks of Sen. Mundt); id,., at 31534-31535 (remarks of Sen. Tydings); 116 Cong. Rec. 40167 (1970) (remarks of Rep. Edmondson); id., at 40168 (remarks of Rep. Kluczynski); id., at 40170 (remarks of Rep. Mink).

       See Uniform Relocation Assistance and Land Acquisition Policies Act of 1969: Hearings on S. 1 before the Subcommittee on Intergovernmental Relations of the Senate Committee on Government Operations, 91st Cong., 1st Sess. (1969); Uniform Relocation Assistance and Land Acquisition Policies-1970: Hearings on H. R. 14898, H. R. 14899, S. 1, and related bills before the House Committee on Public Works, 91st Cong., 1st and 2d Sess. (1969-1970).

       See, e.g., 115 Cong. Rec. 31533-31535 (1969); 116 Cong. Rec. 40163-40172, 42132-42140 (1970).

       S. Rep. No. 91-488 (1969); H. R. Rep. No. 91-1656 (1970).


author: Per Curiam. Justice Rehnquist,

text:
    TORRES-VALENCIA v. UNITED STATES
    No. 82-6848.
    Decided November 7, 1983
   Per Curiam.

In its brief opposing the petition for certiorari, the Government concedes that the District Court erroneously refused to give petitioner’s character evidence instruction to the jury, but argues that the error was harmless. The Government’s concession of error, as well as its harmless-error argument, should be presented to the Court of Appeals in the first instance. The motion of petitioner for leave to proceed in forma pauperis and the petition for writ of certiorari are granted, the judgment of the Court of Appeals is vacated, and the case is remanded to the Court of Appeals for consideration of the Government’s concession of error.

It is so ordered.

Justice Rehnquist,

with whom The Chief Justice and Justice O’Connor join,

dissenting.

This Court can only deal with a certain number of cases on the merits in any given Term, and therefore some judgment must attend the process of selection. Summary disposition is of course appropriate where a lower court has demonstrably misapplied our cases in a manner which has led to an incorrect result. Here, however, the Court chooses to summarily vacate a judgment of the Court of Appeals affirming petitioner’s conviction on the ground that the Government concedes that the District Court improperly failed to give an instruction tendered by petitioner. It is also conceded that petitioner fully argued to the jury his theory of the case, notwithstanding the District Court’s refusal to give his proffered instruction.

I had thought the days of parsing a trial record to find isolated instructional errors in a charge to the jury were long gone. Title 28 U. S. C. §2111 provides:

“On the hearing of any appeal or writ of certiorari in any case, the court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties.”

I am confident that the Court of Appeals for the Ninth Circuit in deciding this case was well aware of this provision— indeed, perhaps better aware of it than is this Court.