293 HARLAN, J., dissenting. more than does the report. The same is true, in my opinion, of expressions made during the debate relating to the desirability of leaving insurance regulation to local authorities because they were, so to speak, on the ground, expressions which, the Court correctly observes, reflected "a basic motivating policy behind the legislative movement that culminated in the enactment of the McCarranFerguson Act." And since the Court very gingerly throws out possible constitutional questions, I think it appropriate to say that the right of Nebraska to police its own insurance company domiciliaries, with respect to their advertising sent from Nebraska into other States, is not seriously open to constitutional doubt. See Hammond Packing Co. v. Arkansas, 212 U. S. 322; Sligh v. Kirkwood, 237 U. S. 52. There is certainly nothing in Alaska 4 It is worth observing that one of the hypothetical questions put to Senator Ferguson by Senator Pepper of Florida, an opponent of the bill, related to whether the bill would permit Florida, in disregard of the federal antitrust laws, to authorize the sale in Florida of insurance at rates fixed by an out-of-state insurance rating bureau, and that Senator Ferguson replied in the affirmative. 91 Cong. Rec. 1481. Yet the Court now finds it offensive to the concept of the statute to consider that other States may be content to rely on Nebraska's regulation of advertising material mailed to their citizens by Nebraska insurance companies. The Court reserves "for what they are worth" the questions that would arise were such other States to legislate against the out-of-state mailing of insurance advertising into their jurisdictions. Yet even if such legislation proved abortive as a practical matter, because of a foreign insurance company having no office, agents, or assets within the State so legislating, such legislation would nonetheless presumably exclude Federal Trade Commission jurisdiction, unless we were to depart from our holding in Federal Trade Comm'n v. National Casualty Co., 357 U. S. 560, to the effect that it is the existence of state regulatory legislation, and not the effectiveness of such regulation, that is the controlling factor. The distinction between such a case as that, and the one before us, seems to me to be one without a difference. HARLAN, J., dissenting. 362 U.S. Packers Assn. v. Commission, 294 U. S. 532, which points to the contrary. The temptation is strong, no doubt, to ask the Court to innovate with respect to the McCarran-Ferguson Act when state regulation may be thought to have fallen short. Two years ago we declined to do so when invited by the Federal Trade Commission in the National Casualty case, supra, at 564-565. I think it unwise for us now to yield to this encore on the part of the Commission. One innovation with the Act is apt to lead to another, and may ultimately result in a hybrid scheme of insurance regulation, bringing about uncertainties and possible duplications which should be avoided. "Obviously Congress' purpose was broadly to give support to the existing and future state systems for regulating and taxing the business of insurance. This was done in two ways. One was by removing obstructions which might be thought to flow from its own power, whether dormant or exercised, except as otherwise expressly provided in the Act itself or in future legislation. The other was by declaring expressly and affirmatively that continued state regulation and taxation of this business is in the public interest and that the business and all who engage in it ‘shall be subject to' the laws of the several states in these respects. "Moreover, in taking this action Congress must have had full knowledge of the nation-wide existence of state systems of regulation and taxation; of the fact that they differ greatly in the scope and character of the regulations imposed and of the taxes exacted; and of the further fact that many, if not all, include features which, to some extent, have not been applied generally to other interstate business. Congress could not have been unacquainted with 293 HARLAN, J., dissenting. these facts and its purpose was evidently to throw the whole weight of its power behind the state systems, notwithstanding these variations." Prudential Ins. Co. v. Benjamin, 328 U. S. 408, 429–430. See also Wilburn Boat Co. v. Fireman's Ins. Co., 348 U. S. 310, 318-321; Securities & Exchange Comm'n v. Variable Annuity Co., supra, at 68–69, and dissenting opinion at 93 et seq. If innovations in the policy of the McCarran-Ferguson Act are thought desirable, they should be made by Congress, not by us. I would affirm. Per Curiam. 362 U.S. TILGHMAN v. CULVER, PRISON CUSTODIAN. ON MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF HABEAS CORPUS. No. 135, Misc. Decided March 28, 1960. Certiorari granted; judgment vacated; and case remanded. So. 2d Petitioner pro se. Richard W. Ervin, Attorney General of Florida, and Reeves Bowen, Assistant Attorney General, for respondent. PER CURIAM. The motion for leave to proceed in forma pauperis is granted. The motion for leave to file a petition for writ of habeas corpus is denied. Treating the papers submitted as a petition for writ of certiorari, certiorari is granted. In view of the representations of the Attorney General of Florida that the cause has become moot, the judgment of the Supreme Court of Florida is vacated and the cause is remanded for such further proceedings as that Court may deem appropriate. See N. A. A. C. P. v. Committee on Offenses Against the Administration of Justice, 358 U. S. 40. 362 U.S. Per Curiam. McGANN v. UNITED STATES. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT. No. 488, Misc. Decided March 28, 1960. Certiorari granted; judgment vacated; and case remanded. Petitioner pro se. Solicitor General Rankin for the United States. PER CURIAM. The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. Upon the suggestion of the Solicitor General that inasmuch as the petitioner had been granted leave to proceed in forma pauperis by the District Court, the application to the Court of Appeals was unnecessary, the judgment of the Court of Appeals is vacated and the case is remanded to that Court for further proceedings. |