In a case involving questions arising under the Constitution of
the United States which had been decided adversely to petitioner by
the Supreme Court of Iowa and which apparently were of public
importance, this Court granted a writ of certiorari. After
argument, the decision of the Supreme Court of Iowa was affirmed by
an equally divided Court. Upon consideration of a petition for
rehearing before a full Court, it appeared that an Iowa statute
enacted since the commencement of this litigation bars the ultimate
question presented in this case from again arising in that State,
though the statute is inapplicable to petitioner's case.
the petition for rehearing is granted, the
judgment of affirmance is vacated, and the writ of certiorari is
dismissed as improvidently granted, since this case is not one in
which "there are special and important reasons" for granting a writ
of certiorari, as required by Rule 19 of the Rules of this Court.
Pp. 349 U. S.
(a) This Court does not sit for the benefit of the particular
litigants. P. 349 U. S.
(b) "Special and important reasons" imply a reach to a problem
beyond the academic or the episodic. P. 349 U. S.
(c) This is especially true in cases involving constitutional
questions. P. 349 U. S.
(d) It is very important that this Court be consistent in not
granting the writ of certiorari except in cases involving
principles the settlement of which is of importance to the public,
as distinguished from that of the parties. P. 349 U. S.
Rehearing granted; judgment, 348 U.S. 880, vacated; and
Page 349 U. S. 71
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
This is an action for damages brought by plaintiff, petitioner
here, in the District Court of Woodbury County, Iowa, to compensate
her for mental suffering claimed to flow from defendant cemetery's
refusal to bury her husband, a Winnebago Indian, after services had
been conducted at the grave site and the burial party had
disbanded. Plaintiff founded her action, so far as here relevant,
on breach of a contract whereby defendant had undertaken to afford
plaintiff "Right of Sepulture" in a specified lot of its cemetery.
The contract of sale of the burial lot also provided that "burial
privileges accrue only to members of the Caucasian race." 60 N.W.2d
112. Plaintiff asserted that this provision was void under both the
Iowa and the United States Constitutions, and that recognition of
its validity would violate the Fourteenth Amendment. By an
amendment to the complaint, plaintiff also claimed a violation of
the United Nations Charter. The defense was anchored in the
validity of the clause as a bar to this action.
After an abortive attempt to remove the case to the federal
courts, 102 F.
, defendants moved to dismiss the amended petition in
the state court. This motion was denied, except that, insofar as
the amendment to the petition had relied on the United Nations
Charter, the amendment was dismissed. Following Iowa procedure, the
trial court entertained motions by both parties requesting it to
adjudicate prior to trial points of law relating to the effect of
the restrictive covenant. The Iowa court ruled that the clause was
not void, but was unenforceable as a violation of the Constitutions
and public policy of Iowa and the United States. Nevertheless,
Page 349 U. S. 72
it held that the clause "may be relied upon as a defense," and
"the action of a state or federal court in permitting a
defendant to stand upon the terms of its contract and to defend
this action in court would not constitute state or federal
contrary to the Fifth and Fourteenth Amendments. It again ruled
that the United Nations Charter was irrelevant, and the case was
The Supreme Court of Iowa affirmed, reasoning that the decision
of this Court in Shelley v. Kraemer, 334 U. S.
, when considered in conjunction with the Civil
Rights Cases, 109 U. S. 3
, did not
require a state court to ignore such a provision in a contract when
raised as a defense and in effect to reform the contract by
enforcing it without regard to the clause. The court further ruled
that the provisions of the United Nations Charter "have no bearing
on the case," and that none of the grounds based on local law
sustained the action. 245 Iowa, 147, 60 N.W.2d 110
117. We granted certiorari, 347 U.S. 942.
The basis for petitioner's resort to this Court was primarily
the Fourteenth Amendment, through the Due Process and Equal
Protection Clauses. Only if a State deprives any person or denies
him enforcement of a right guaranteed by the Fourteenth Amendment
can its protection be invoked. Such a claim involves the threshold
problem whether, in the circumstances of this case, what Iowa,
through its courts, did amounted to "state action." This is a
complicated problem which for long has divided opinion in this
Court. See, e.g., Raymond v. Chicago Union Traction Co.,
207 U. S. 20
Snowden v. Hughes, 321 U. S. 1
Terry v. Adams, 345 U. S. 461
See also Barrows v. Jackson, 346 U.
. Were this hurdle cleared, the ultimate
substantive question, whether in the circumstances of this case the
action complained of was condemned by the Fourteenth Amendment,
would in turn present no easy constitutional problem.
Page 349 U. S. 73
The case was argued here, and the stark fact is that the Court
was evenly divided. 348 U.S. 880. In accordance with undeviating
practice, no indication was given regarding the grounds of this
In addition to the familiar though vexing problems of
constitutional law, there was reference in the opinions of the Iowa
courts and in the briefs of counsel to the United Nations Charter.
The Iowa courts dismissed summarily the claim that some of the
general and hortatory language of this Treaty, which, so far as the
United States is concerned, is itself an exercise of the
treatymaking power under the Constitution, constituted a limitation
on the rights of the States and of persons otherwise reserved to
them under the Constitution. It is a redundancy to add that there
is, of course, no basis for any inference that the division of this
Court reflected any diversity of opinion on this question.
Following our affirmance by necessity of the decision of the
Iowa Supreme Court, a petition was filed for a rehearing before a
full Court. In our consideration of this petition, our attention
has now been focused upon an Iowa statute enacted since the
commencement of this litigation. Though it was in existence at the
time the case first came here, it was then not seen in proper focus
because blanketed by the issues of "state action" and
constitutional power for which our interest was enlisted. This Iowa
statute bars the ultimate question presented in this case from
again arising in that State. In light of this fact and the
standards governing the exercise of our discretionary power of
review upon writ of certiorari, we have considered anew whether
this case is one in which "there are special and important reasons"
for granting the writ of certiorari, as required by Supreme Court
This Rule, formulated 30 years ago, embodies the criteria,
developed ever since the Evarts Act of 1891, by which the Court
determines whether a particular case
Page 349 U. S. 74
merits consideration, with due regard to the proper functioning
of the limited reviewing power to which this Court is confined,
decisively restricted through the creation of the intermediate
Courts of Appeals and more largely confined by the Judiciary Act of
1925. In illustrating the character of reasons which may be deemed
"special and important," the Rule refers to cases
"Where a state court has decided a federal question of substance
not theretofore determined by this court, or has decided it in a
way probably not in accord with applicable decisions of this
A federal question raised by a petitioner may be "of substance"
in the sense that, abstractly considered, it may present an
intellectually interesting and solid problem. But this Court does
not sit to satisfy a scholarly interest in such issues. Nor does it
sit for the benefit of the particular litigants. Magnum Import
Co. v. Coty, 262 U. S. 159
262 U. S. 163
Address of Mr. Chief Justice Vinson before the
American Bar Association, Sept. 7, 1949, 69 Sup.Ct. v, vi; Address
of Mr. Chief Justice Hughes, before the American Law Institute, May
10, 1934, XI Proc.Am.Law Inst. 313. "Special and important reasons"
imply a reach to a problem beyond the academic or the episodic.
This is especially true where the issues involved reach
constitutional dimensions, for then there comes into play regard
for the Court's duty to avoid decision of constitutional issues
unless avoidance becomes evasion. Cf.
the classic rules
for such avoidance stated by Mr. Justice Brandeis in Ashwander
v. Tennessee Valley Authority, 297 U.
, 297 U. S.
In the present case, certiorari was granted, according to our
practice, because at least four members of the Court deemed that
despite the rather unique circumstances of this case Iowa's
willingness to enforce this restrictive covenant rendered it
"special and important."
Page 349 U. S. 75
We were unmindful at the time of Iowa's corrective legislation
and of its implications. While that statute had been cited in the
opinion of the Iowa Supreme Court, without quotation, in tangential
support of a substantive argument, and while similar passing
references appear in respondent's briefs in opposition to the
petition and on the merits, it was not even suggested as a ground
for opposing the grant. Its importance was not put in identifying
perspective, and it did not emerge to significance in the sifting
process through which the annual hundreds of petitions for
certiorari pass. Argument at the Bar was concerned with other
issues and the even division of the Court forestalled that
intensive study attendant upon opinion-writing which might well
have revealed the crucial relevance of the statute.
These oversights should not now be compounded by further
disregard of the impact of this enactment when viewed in the light
of settled Iowa law, not previously brought to our attention,
concerning its effect upon private litigation. The statute
"SECTION 1. Any corporation or other form of organization
organized or engaging in the business under the laws of the state
of Iowa, or wheresoever organized and engaging in the business in
the state of Iowa, of the ownership, maintenance or operation of a
cemetery . . . except . . . churches or religious or established
fraternal societies, or incorporated cities or towns or other
political subdivisions of the state of Iowa . . . shall be subject
to the provisions of this chapter."
"* * * *"
"SEC. 8. It shall be unlawful for any organization subject to
the provisions of this chapter to deny the privilege of interment
of the remains of any deceased person in any cemetery . . . solely
Page 349 U. S. 76
of the race or color of such deceased person. Any contract,
agreement, deed, covenant, restriction or charter provision at any
time entered into, or by-law, rule or regulation adopted or put in
force, either subsequent or prior to the effective date of this
chapter, authorizing, permitting or requiring any organization
subject to the provisions of this chapter to deny such privilege of
interment because of race or color of such deceased person is
hereby declared to be null and void and in conflict with the public
policy of this state. . . ."
"SEC. 9. Any person, firm or corporation violating any of the
provisions of this chapter, shall, upon conviction, be punishable
by a fine of not less than twenty-five dollars ($25.00) nor more
than one hundred dollars ($100.00)."
"* * * *"
"SEC. 12. Nothing in this Act contained shall affect the rights
of any parties to any pending litigation."
"* * * *"
"Approved April 21, 1953."
Iowa Laws 1953, c. 84; Iowa Code Ann. §§ 566 A. 1 to 566 A. 11.
As a result of this Act, in any other case arising under similar
circumstances, not only would the statutory penalties be
applicable, but also, under Iowa law, one in petitioner's position
would be entitled to recover damages in a civil action based on a
violation of the statute. See Humburd v. Crawford,
Iowa 743, 105 N.W. 330; Brown v. J. H. Bell Co.,
89, 123 N.W. 231, 124 N.W. 901; Amos v. Prom,
Inc., 117 F.
Had the statute been properly brought to our attention and the
case thereby put into proper focus, the case would have assumed
such an isolated significance that it would
Page 349 U. S. 77
hardly have been brought here in the first instance. [Footnote 1
] Any adjudication of the
constitutional claims pressed by petitioner would now be an
adjudication under circumstances not promotive of the very social
considerations which evidently inspired the Iowa Legislature to
provide against the kind of discrimination of which complaint is
here made. On the one hand, we should hesitate to pass judgment on
Iowa for unconstitutional action, were such to be found, when it
has already rectified any possible error. On the other hand, we
should not unnecessarily discourage such remedial action by
possible condonation of this isolated incident. Moreover, the
evident difficulties of the case suggest that, in the absence of
compelling reason, we should not risk inconclusive and divisive
disposition of a case when time may further illumine or completely
outmode the issues in dispute.
Such factors are among the many which must be weighed in the
exercise of that "sound judicial discretion" which Rule 19
requires. We have taken this opportunity to explain their
relevance, when normally, for obvious reasons in view of our volume
of business, no opinion accompanies dismissal of a writ as
improvidently granted, because of the apt illustration here
provided of the kinds of considerations, beyond those listed by
Rule 19 as illustrative but not exhaustive, which preclude
adjudication on the merits of cases which may have the surface
appearance of public importance.
We are therefore of the opinion that this Court's order of
November 15, 1954, affirming by an equally divided Court the
decision of the Iowa Supreme Court, must be vacated and the writ of
certiorari dismissed as improvidently granted. There is nothing
unique about such
Page 349 U. S. 78
dismissal even after full argument. There have been more than
sixty such cases, and, on occasion, full opinions have accompanied
the dismissal. [Footnote 2
circumstances of this case may be different and more unusual. But
Page 349 U. S. 79
impressive practice proves that the Court has not hesitated to
dismiss a writ even at this advanced stage where it appears on
further deliberation, induced by new considerations, that the case
is not appropriate for adjudication. In the words of Mr. Chief
Justice Taft, speaking for a unanimous Court:
"If it be suggested that as much effort and time as we have
given to the consideration of the alleged conflict would have
enabled us to dispose of the case before us on the merits, the
answer is that it is very important that we be consistent in not
granting the writ of certiorari except in cases involving
principles the settlement of which is of importance to the public,
as distinguished from that of the parties, and in cases where there
is a real and embarrassing conflict of opinion and authority
between the Circuit Courts of Appeals."
Layne & Bowler Corp. v. Western Well Works, Inc.,
261 U. S. 387
261 U. S. 393
The petition for rehearing is granted. The order of this Court
of November 15, 1954, affirming by necessity the
Page 349 U. S. 80
judgment of the Supreme Court of Iowa is vacated, and the writ
of certiorari is dismissed as improvidently granted.
It is so ordered.
MR. JUSTICE HARLAN took no part in the consideration or decision
of this case.
Cf. District of Columbia v. Sweeney,
310 U.S. 631,
where certiorari was denied "in view of the fact that the tax is
laid under a statute which has been repealed and the question is
therefore not of public importance."
United States v. Rimer, 220 U.
; Furness, Withy & Co. v. Yang-Tsze Ins.
Assn., 242 U. S. 430
Tyrrell v. District of Columbia, 243 U. S.
; Houston Oil Co. v. Goodrich, 245 U.
; Layne & Bowler Corp. v. Western Well
Works, Inc., 261 U. S. 387
Southern Power Co. v. North Carolina Public Service Co.,
263 U. S. 508
Keller v. Adams-Campbell Co., 264 U.
; Davis v. Currie, 266 U.
; Erie R. Co. v. Kirkendall, 266 U.
; Southern California Edison Co. v.
275 U.S. 486; Mellon v. McKinley,
U.S. 492; Missouri-Kansas-Texas R. Co. v. Texas,
494; Ellison v. Koswig,
276 U.S. 598, 625; Johnson v.
276 U.S. 601; Carter Oil Co. v. Eli,
U.S. 573; Standard Pipe Line Co. v. Commissioners,
278 U. S. 558
Seaboard Air Line R. Co. v. Johnson,
278 U.S. 576;
Empire Gas & Fuel Co. v. Saunders,
278 U.S. 581;
Virginian R. Co. v. Kirk,
278 U.S. 582; Wallace v.
Motor Products Corp., 279 U. S. 589
Sutter v. Midland Valley R. Co.,
280 U.S. 521; Anglo
& London-Paris Nat. Bank v. Consolidated Nat. Bank,
U.S. 526; Gulf, Mobile & N. R. Co. v. Williams,
U.S. 526; Wisconsin Electric Co. v. Dumore Co.,
813; Adam v. New York Trust Co.,
282 U.S. 814;
Director of Lands v. Villa-Abrille,
283 U.S. 785;
Sanchez v. Borras,
283 U.S. 798; Elgin, Joliet &
E. R. Co. v. Churchill,
284 U.S. 589; Snowden v. Red River
284 U.S. 592; Lang v. United States,
286 U.S. 523; Franklin-American Trust Co. v. St. Louis Union
286 U.S. 533; Louisville & Nashville R. Co.
287 U.S. 569; Sevier Commission Co. v. Wallowa
287 U.S. 575; Fort Smith Suburban R. Co. v.
Kansas City Southern R. Co.,
288 U.S. 587; Boynton v.
Hutchinson Gas Co.,
292 U.S. 601; Lynch v. New York,
293 U. S. 52
Hunt v. Western Casualty Co., 293 U.
; Fox Film Corp. v. Muller,
294 U.S. 696;
State Automobile Ins. Assn. v. Glick,
294 U.S. 697;
Moor v. Texas & N.O. R. Co., 297 U.
; Texas & N.O. R. Co. v. Neill,
U.S. 645; Aetna Ins. Co. v. Illinois Central R. Co.,
U.S. 652; Tax Commission of Ohio v. Wilbur, 304 U.
; Goodman v. United States,
305 U.S. 578;
Goins v. United States,
306 U.S. 622; McGoldrick v.
Gulf Oil Corp., 309 U. S. 2
Utilities Ins. Co. v. Potter,
312 U.S. 662; Harris v.
Zion's Savings Bank & Trust Co.,
313 U.S. 541; Jones
315 U.S. 782; Gorman v. Washington
University, 316 U. S. 98
McCullough v. Kammerer Corp., 323 U.
; McCarthy v. Bruner,
323 U.S. 673;
White v. Ragen, 324 U. S. 760
Woods v. Nierstheimer, 328 U. S. 211
Phyle v. Duffy, 334 U. S. 431
Hedgebeth v. North Carolina, 334 U.
; Superior Court v. Lillefloren,
906; Loftus v. Illinois,
337 U.S. 935; Parker v. Los
Angeles, 338 U. S. 327
Hammerstein v. Superior Court, 341 U.
; Stembridge v. Georgia, 343 U.
; Edelman v. California, 344 U.
; Bentsen v. Blackwell,
347 U.S. 925;
California ex rel. Brown v. St. Louis Union Trust Co.,
U.S. 932. This list is not to be deemed comprehensive.
Only in the light of argument on the merits did it become clear
in these numerous cases that the petitions for certiorari should
not have been granted. In some instances, an asserted conflict
turned out to be illusory; in others, a federal question was
wanting or decision could be rested on a non-federal ground; in a
number, it became manifest that the question was of importance
merely to the litigants, and did not present an issue of immediate
MR. JUSTICE BLACK, with whom THE CHIEF JUSTICE and MR. JUSTICE
DOUGLAS join, dissenting.
We think that only very unusual circumstances can justify
dismissal of cases on the ground that certiorari was improvidently
granted. Our objections to such dismissals are stronger when, as
here, a case has already been argued and decided by the Court. We
do not agree that the circumstances relied on by the Court justify
this dismissal. We granted certiorari because serious questions
were raised concerning a denial of the equal protection of the laws
guaranteed by the Fourteenth Amendment. Those questions remain
undecided. The Court dismisses the case because the Iowa
Legislature has provided that every person in Iowa except one who
has already filed a suit can prosecute claims like this. Apparently
this law leaves everyone in Iowa free to vindicate this kind of
right except the petitioner. This raises a new question of denial
of equal protection of the laws equally as grave as those which
prompted us to take this case originally. We cannot agree that this
dismissal is justified merely because this petitioner is the only
one whose rights may have been unconstitutionally denied.