The Constitution of the United States of America: Analysis and Interpretation Annotations of Cases Decided by the Supreme Court of the United States to June 30, 1952 (part 6 of 8)

The Constitution of the United States of America: Analysis and Interpretation Annotations of Cases Decided by the Supreme Court of the United States to June 30, 1952 (part 6 of 8)

By legislation adopted in 1879 and 1934 Congress has specified certain conditions upon which a publication shall be admitted to the valuable second-class mailing privilege, one of which provides as follows: Except as otherwise provided by law, the conditions upon which a publication shall be admitted to the second-class are as follows: "* * * Fourth. It must be originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, arts, or some special industry, and having a legitimate list of subscribers; * * * nothing herein contained shall be so construed as to admit to the second-class rate regular publications designed primarily for advertising purposes, or for free circulation, or for circulation at nominal rates."[239] In Hannegan v. Esquire, Inc.,[240] the Court sustained an injunction against an order of the Postmaster General which suspended a permit to Esquire Magazine on the ground that it did not "contribute to the public good and the public welfare." Said Justice Douglas for the Court: "* * * a requirement that literature or art conform to some norm prescribed by an official smacks of an ideology foreign to our system. The basic values implicit in the requirements of the Fourth condition can be served only by uncensored distribution of literature. From the multitude of competing offerings the public will pick and choose. What seems to one to be trash may have for others fleeting or even enduring values. But to withdraw the second-class rate from this publication today because its contents seemed to one official not good for the public would sanction withdrawal of the second-class rate tomorrow from another periodical whose social or economic views seemed harmful to another official. The validity of the obscenity laws is recognized that the mails may not be used to satisfy all tastes, no matter how perverted. But Congress has left the Postmaster General with no power to prescribe standards for the literature or the art which a mailable periodical disseminates."[241] In Donaldson v. Read Magazine,[242] however, the Court sustained a Court order forbidding the delivery of mail and money orders to a magazine conducting a puzzle contest which the Postmaster-General had found to be fraudulent. Freedom of the press, said the Court, does not include the right to raise money by deception of the public.

The Rights of Assembly and Petition

The right of petition took its rise from the modest provision made for it in chapter 61 of Magna Carta (1215).[243] To this meagre beginning Parliament itself and its procedures in the enactment of legislation, the equity jurisdiction of the Lord Chancellor, and proceedings against the Crown by "petition of right" are all in some measure traceable. Thus, while the King summoned Parliament for the purpose of supply, the latter--but especially the House of Commons--petitioned the King for a redress of grievances as its price for meeting the financial needs of the Monarch; and as it increased in importance it came to claim the right to dictate the form of the King's reply, until in 1414 Commons boldly declared themselves to be "as well assenters as petitioners." Two hundred and fifty years later, in 1669, Commons further resolved that every commoner in England possessed "the inherent right to prepare and present petitions" to it "in case of grievance," and of Commons "to receive the same" and to judge whether they were "fit" to be received. Finally Chapter 5 of the Bill of Rights of 1689 asserted the right of the subjects to petition the King and "all commitments and prosecutions for such petitioning to be illegal."[244]

Historically, therefore, the right of petition is the primary right, the right peaceably to assemble a subordinate and instrumental right, as if Amendment I read; "the right of the people peaceably to assemble" in order to "petition the government."[245] Today, however, the right of peaceable assembly is, in the language of the Court, "cognate to those of free speech and free press and is equally fundamental * * * [It] is one that cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all civil and political institutions,--principles which the Fourteenth Amendment embodies in the general terms of its due process clause. * * * The holding of meetings for peaceable political action cannot be proscribed. Those who assist in the conduct of such meetings cannot be branded as criminals on that score. The question * * * is not as to the auspices under which the meeting is held but as to its purposes; not as to the relation of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects."[246] Furthermore, the right of petition has expanded. It is no longer confined to demands for "a redress of grievances," in any accurate meaning of these words, but comprehends demands for an exercise by the government of its powers in furtherance of the interests and prosperity of the petitioners, and of their views on politically contentious matters.

RESTRAINTS ON THE RIGHT OF PETITION

The right of petition recognized by Amendment I first came into prominence in the early 1830's, when petitions against slavery in the District of Columbia began flowing into Congress in a constantly increasing stream, which reached its climax in the winter of 1835. Finally on January 28, 1840, the House adopted as a standing rule: "That no petition, memorial, resolution, or other paper praying the abolition of slavery in the District of Columbia, or any State or Territories of the United States in which it now exists, shall be received by this House, or entertained in any way whatever." Thanks to the efforts of John Quincy Adams this rule was repealed five years later, after Adams' death.[247] For many years now the rules of the House of Representatives have provided that members having petitions to present may deliver them to the Clerk and the petitions, except such as, in the judgment of the Speaker, are of an obscene or insulting character, shall be entered on the Journal and the Clerk shall furnish a transcript of such record to the official reporters of debates for publication in the Record.[248] Even so petitions for the repeal of the espionage and sedition laws and against military measures for recruiting resulted, in World War I, in imprisonment.[249] Processions for the presentation of petitions in the United States have not been particularly successful. In 1894 General Coxey of Ohio organized armies of unemployed to march on Washington and present petitions, only to see their leaders arrested for unlawfully walking on the grass of the capitol. The march of the veterans on Washington in 1932 demanding bonus legislation was defended as an exercise of the right of petition. The administration, however, regarded it as a threat against the constitution and called out the army to expel the bonus marchers and burn their camps. For legal regulation of lobbying activities, see below.

THE CRUIKSHANK CASE

The right of assembly was first passed upon by the Supreme Court in 1876 in the famous case of United States v. Cruikshank et al.[250] The case arose on indictments under section 6 of the so-called Enforcement Act of May 30, 1870,[251] which read as follows: "That if two or more persons shall band or conspire together, or go in disguise upon the public highway, or upon the premises of another, with intent to violate any provision of this act, or to injure, oppress, threaten, or intimidate any citizen, with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the Constitution or laws of the United States, or because of his having exercised the same, such persons shall be held guilty of felony, etc." The indictments charged the defendants with having deprived certain citizens of their right to assemble together peaceably with other citizens "for a peaceful and lawful purpose." The court held that this language was insufficient inasmuch as it did not specify that the attempted assembly was for a purpose connected with the National Government. As to the right of assembly the Court, speaking by Chief Justice Waite, went on to declare: "The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for anything else connected with the powers or the duties of the National Government, is an attribute of national citizenship, and, as such, under the protection of, and guaranteed by, the United States. The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances. If it had been alleged in these counts that the object of the defendants was to prevent a meeting for such a purpose, the case would have been within the statute, and within the scope of the sovereignty of the United States. Such, however, is not the case. The offence, as stated in the indictment, will be made out, if it be shown that the object of the conspiracy was to prevent a meeting for any lawful purpose whatever."[252]

HAGUE v. COMMITTEE OF INDUSTRIAL ORGANIZATION

In this case[253] the question at issue was the validity of a Jersey City ordinance requiring the obtaining of a permit for a public assembly in or upon the public streets, highways, public parks, or public buildings of the city and authorizing the director of public safety, for the purpose of preventing riots, disturbances, or disorderly assemblage, to refuse to issue a permit when after investigation of all the facts and circumstances pertinent to the application he believes it to be proper to refuse to issue a permit. Two Justices held that in the circumstances of the case the ordinance violated the right of certain citizens of the United States to assemble to discuss certain privileges which they enjoyed as such, to wit, their rights and privileges under the National Labor Relations Act.[254] Said Justice Roberts, expressing this point of view: "The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied. We think the court below was right in holding the ordinance quoted in Note 1 void upon its face. It does not make comfort or convenience in the use of streets or parks the standard of official action. It enables the Director of Safety to refuse a permit on his mere opinion that such refusal will prevent 'riots, disturbances or disorderly assemblage.' It can thus, as the record discloses, be made the instrument of arbitrary suppression of free expression of views on national affairs for the prohibition of all speaking will undoubtedly 'prevent' such eventualities. But uncontrolled official suppression of the privilege cannot be made a substitute for the duty to maintain order in connection with the exercise of the right."[255] Two other Justices invoked also the due process clause of Amendment XIV, thereby claiming the right of assembly for aliens as well as citizens. Said Justice Stone, who expressed this view: "I think respondents' right to maintain it does not depend on their citizenship and cannot rightly be made to turn on the existence or non-existence of a purpose to disseminate information about the National Labor Relations Act. It is enough that petitioners have prevented respondents from holding meetings and disseminating information whether for the organization of labor unions or for any other lawful purpose."[256] Both Justices were in agreement that freedom of speech and freedom of assembly were claimable only by natural persons, and not by corporations.[257] Two Justices dissented on the basis of Davis v. Massachusetts.[258]

RECENT CASES

In Bridges v. California[259] it was held that a telegram addressed to the Secretary of Labor strongly criticizing the action of a State court in a pending case was privileged under this amendment as an exercise of the right of petition. In Thomas v. Collins[260] a statute requiring registration before solicitation of union membership was found to violate the right of peaceable assembly. But a closely divided Court subsequently sustained an order of a State Employment Relations Board forbidding work stoppages by the calling of special union meetings during working hours.[261] Finally, a divided Court held June 4, 1951, that a combination to break up by force and threats of force of a meeting called for the purpose of adopting a resolution against the Marshall Plan did not afford a right of action against the conspirators under the Ku Klux Act of April 20, 1871.[262] While the complaint alleged that the conspiracy was entered into for the purpose of depriving the plaintiffs as citizens of the United States of their right "peaceably to assemble for the purpose of discussing and communicating upon national public issues," the Ku Klux Act was found not to extend to violations of that right except by State acts depriving persons of their rights under the Fourteenth Amendment. But the Court, perhaps significantly, left open the question whether Congress can protect such rights against private action. "It is not for this Court," remarked Justice Jackson sententiously, "to compete with Congress or attempt to replace it as the Nation's law-making body."[263]

LOBBYING AND THE RIGHT OF PETITION

Today lobbying is frequently regarded as the most important expression of the right of petition. During the last half century lobbying has reached tremendous proportions; and there have been four Congressional investigations of such activities, the latest by a Committee of the House of Representatives. Meantime, in 1946 Congress passed the Federal Regulation of Lobbying Act, under which more than 2,000 lobbyists have registered and 495 organizations report lobbying contributions and expenditures.[264] Recently doubts have been cast upon the constitutionality of this statute by two decisions of lower federal courts sitting in the District of Columbia. According to the District Court therein, to subject a person, whose "principal purpose * * * is to aid" in the defeat or passage of legislation and who violates this Act by failing to file a detailed accounting, to a penalty entailing a three-year prohibition from lobbying is to deprive such person of his constitutional rights of freedom of speech and petition.[265] Insofar as Congress legitimately may regulate lobbying, its powers in relation thereto have been declared not to extend to "indirect lobbying by the pressure of public opinion on the Congress." The latter was deemed to be "the healthy essence of the democratic process."[266]

Notes

[1] 268 U.S. 652 (1925).

[2] Ibid. 666.

[3] Fiske v. Kansas, 274 U.S. 380 (1927).

[4] Cantwell v. Connecticut, 310 U.S. 296 (1940).

[5] Near v. Minnesota, 283 U.S. 697 (1931).

[6] De Jonge v. Oregon, 299 U.S. 353 (1937).

[7] Annals of Congress, 434 (1789-1791).

[8] Records of the United States Senate, Sept. 9, 1789, United States Archives, cited in Appellees Brief in McCollum v. Board of Education, 333 U.S. 203 (1948).

[9] Ibid.

[10] Ibid.

[11] Joseph Story, Commentaries on the Constitution, Sec. 1879 (1833).

[12] Ibid. Sec. 1874.

[13] Principles of Constitutional Law, 224-225, 3d ed. (1898).

[14] Saul K. Padover, The Complete Jefferson, 518-519 (1943).

[15] 98 U.S. 145 (1879).

[16] Ibid. 164. In his 2d Inaugural Address Jefferson expressed a very different, and presumably more carefully considered, opinion upon the purpose of Amendment I: "In matters of religion, I have considered that its free exercise is placed by the Constitution independent of the powers of of the general government." This was said three years after the Danbury letter. 1 Messages and Papers of the Presidents, 379 (Richardson ed. 1896).

[17] Everson v. Board of Education, 330 U.S. 1 (1947).

[18] Ibid. 15, 16.

[19] McCollum v. Board of Education, 333 U.S. 203 (1948).

[20] Ibid. 212.

[21] 333 U.S. 203, 213 (1948).

[22] Ibid. 216-218. Justice Frankfurter's principal figure in the fight against sectarianism is Horace Mann, who was secretary of the Massachusetts Board of Education, 1837-1848. Mann, however, strongly resented the charge that he was opposed to religious instruction in the public schools. "It is true that Mr. Mann stood strongly for a 'type of school with instruction adapted to democratic and national ends.' But it is not quite just to him to contrast this type of school with the school adapted to religious ends, without defining terms. Horace Mann was opposed to sectarian doctrinal instruction in the schools, but he repeatedly urged the teaching of the elements of religion common to all of the Christian sects. He took a firm stand against the idea of a purely secular education, and on one occasion said he was in favor of religious instruction 'to the extremest verge to which it can be carried without invading those rights of conscience which are established by the laws of God, and guaranteed to us by the Constitution of the State.' At another time he said that he regarded hostility to religion in the schools as the greatest crime he could commit. Lest his name should go down in history as that of one who had attempted to drive religious instruction from the schools, he devoted several pages in his final Report--the twelfth--to a statement in which he denied the charges of his enemies." Raymond B. Culver, Horace Mann on Religion in the Massachusetts Public Schools, 235 (1929).

[23] 333 U.S. 203, 222 ff. (1948).

[24] Ibid. 213.

[25] Ibid. 225-226.

[26] Ibid. 231.

[27] Ibid. 232, 234.

[28] 333 U.S. 244.

[29] Ibid., 253, 254.

[30] Zorach v. Clauson, 303 N.Y. 161, 168-169; 100 N.E. 2d 403 (1951).

[31] Zorach v. Clauson, 343 U.S. 306 (1952).

[32] Ibid., pp. 313-314. Justices Black, Frankfurter, and Jackson dissented.

[33] Doremus v. Board of Education, 342 U.S. 429 (1952).

[34] Three dissenters, speaking through Justice Douglas, argued that, since the New Jersey Supreme Court had taken the case and decided it on its merits, the United States Supreme Court was bound to do the same. Ibid. 435-436.

[35] Bradfield v. Roberts, 175 U.S. 291 (1899).

[36] Quick Bear v. Leupp, 210 U.S. 50 (1908).

[37] Cochran v. Louisiana State Board of Education, 281 U.S. 370 (1930).

[38] Everson v. Board of Education, 330 U.S. 1 (1947).

[39] 42 U.S.C.A. Sec. 1751-1760; 60 Stat. 230 (1940).

[40] Davis v. Benson, 133 U.S. 333, 342 (1890).

[41] Cantwell v. Connecticut, 310 U.S. 296, 303, 304 (1940).

[42] Pierce v. Society of Sisters of Holy Names, 268 U.S. 510 (1925).

[43] Reynolds v. United States, 98 U.S. 145, 166 (1879).

[44] Ibid. 167.

[45] Davis v. Beason, 133 U.S. 333, 345 (1890).

[46] Reynolds v. United States 98 U.S. 145 (1879); Davis v. Beason, 133 U.S. 333 (1890).

[47] 322 U.S. 78 (1944).

[48] Ibid. 89.

[49] 310 U.S. 296 (1940).

[50] Minersville School Dist. v. Gobitis, 310 U.S. 586 (1940).

[51] Jones v. Opelika, 316 U.S. 584 (1942).

[52] Jones v. Opelika, 319 U.S. 103 (1943); Murdock v. Pennsylvania, 319 U.S. 105 (1943).

[53] Board of Education v. Barnette, 319 U.S. 624 (1943). On the same day the Court held that a State may not forbid the distribution of literature urging and advising, on religious grounds, that citizens refrain from saluting the flag. Taylor v. Mississippi, 319 U.S. 583 (1943).

[54] Martin v. Struthers, 319 U.S. 141 (1943).

[55] Prince v. Massachusetts, 321 U.S. 158 (1944).

[56] 334 U.S. 558 (1948).

[57] Kovacs v. Cooper, 336 U.S. 77 (1949).

[58] Kunz v. New York, 340 U.S. 290 (1951).

[59] Ibid. 314.

[60] Niemotko v. Maryland, 340 U.S. 268 (1951).

[61] Feiner v. New York, 340 U.S. 315 (1951).

[62] See p. 1285. [Transcriber's Note: There is no mention of the Feiner case on p. 1285.]

[63] Arver v. United States, 245 U.S. 366 (1918).

[64] 293 U.S. 245 (1934).

[65] 325 U.S. 561 (1945). cf. Girouard v. United States, 328 U.S. 61 (1946) holding "an alien who is willing to take the oath of allegiance and to serve in the army as a non-combatant but who, because of religious scruples, is unwilling to bear arms in defense of this country may be admitted to citizenship * * *", overruling United States v. Schwimmer, 279 U.S. 644 (1929) and United States v. Macintosh, 283 U.S. 605 (1931).

[66] 325 U.S. 561, 578 (1945).

[67] Commentaries, Vol. IV, 151-152.

[68] Justice Frankfurter in Dennis v. United States, 341 U.S. 494, 521-522 (1951).

[69] Ibid. 524; citing Robertson v. Baldwin, 165 U.S. 275, 281 (1897).

[70] Ibid. 524; citing Gompers v. United States, 233 U.S. 604, 610 (1914).

"While the courts have from an early date taken a hand in crystallizing American conceptions of freedom of speech and press into law, it is scarcely in the manner or to the extent which they are frequently assumed to have done. The great initial problem in this realm of constitutional liberty was to get rid of the common law of 'seditious libel' which operated to put persons in authority beyond the reach of public criticism. The first step in this direction was taken in the famous, or infamous, Sedition Act of 1798, which admitted the defense of truth in prosecution brought under it, and submitted the general issue of defendant's guilt to the jury. But the substantive doctrine of 'seditious libel' the Act of 1798 still retained, a circumstance which put several critics of President Adams in jail, and thereby considerably aided Jefferson's election as President in 1800. Once in office, nevertheless, Jefferson himself appealed to the discredited principle against partisan critics. Writing his friend Governor McKean of Pennsylvania in 1803 anent such critics, Jefferson said: 'The federalists having failed in destroying freedom of the press by their gag-law, seem to have attacked in an opposite direction; that is by pushing its licentiousness and its lying to such a degree of prostitution as to deprive it of all credit. * * * This is a dangerous state of things, and the press ought to be restored to its credibility if possible. The restraints provided by the laws of the States are sufficient for this, if applied. And I have, therefore, long thought that a few prosecutions of the most prominent offenders would have a wholesome effect in restoring the integrity of the presses. Not a general prosecution, for that would look like persecution; but a selected one.' Works (Ford ed., 1905), IX 451-52.

"In the Memorial Edition of Jefferson's works this letter is not included; nor apparently was it known to the Honorable Josephus Daniels, whose enthusiastic introduction to one of these volumes makes Jefferson out to have been the father of freedom of speech and press in this country, if not throughout the world. The sober truth is that it was that archenemy of Jefferson and of democracy, Alexander Hamilton, who made the greatest single contribution toward rescuing this particular freedom as a political weapon from the coils and toils of the common law, and that in connection with one of Jefferson's 'selected prosecutions.' I refer to Hamilton's many-times quoted formula in the Croswell case in 1804: 'The liberty of the press is the right to publish with impunity, truth, with good motives, for justifiable ends though reflecting on government, magistracy, or individuals.' People v. Croswell, 3 Johns (NY) 337. Equipped with this brocard our State courts working in co-operation with juries, whose attitude usually reflected the robustiousness of American political discussion before the Civil War, gradually wrote into the common law of the States the principle of 'qualified privilege,' which is a notification to plaintiffs in libel suits that if they are unlucky enough to be officeholders or office seekers, they must be prepared to shoulder the almost impossible burden of showing defendant's 'special malice.' Cooley, Constitutional Limitations, Chap. XII: Samuel A. Dawson, Freedom of the Press, A Study of the Doctrine of 'Qualified Privilege' (Columbia Univ. Press, 1924)." Edward S. Corwin, Liberty Against Government. 157-159 fn. (L.S.U. Press, 1948).

[71] Patterson v. Colorado, 205 U.S. 454, 462 (1907).

[72] Ibid. 461

[73] Prudential Ins. Co. v. Cheek, 259 U.S. 530, 543 (1922).

[74] Schenck v. United States, 249 U.S. 47 (1919); and see below. [Transcriber's Note: Reference is to Footnote 75, below.]

[75] See Justice Brandeis concurring opinion in Whitney v. California, 274 U.S. 357 (1927); and cases reviewed below.

[76] Fiske v. Kansas, 274 U.S. 380 (1927).

[77] 133 U.S. 333 (1890).

[78] Ibid. 341-342.

[79] 236 U.S. 273 (1915).

[80] Fiske v. Kansas, 274 U.S. 380 (1927).

[81] Stromberg v. California, 283 U.S. 359 (1931).

[82] De Jonge v. Oregon, 299 U.S. 353 (1937).

[83] 249 U.S. 47 (1919).

[84] 40 Stat. 217, 219.

[85] 205 U.S. 454, 462 (1907).

[86] 249 U.S. 47, 51-52 (1919).

[87] 249 U.S. 204 (1919).

[88] Ibid. 206.

[89] 249 U.S. 211 (1919).

[90] Ibid. 215-216.

[91] 250 U.S. 616 (1919).

[92] Ibid. 627. It should be noted that Justice Holmes couples with his invocation of the clear and present danger test in his dissent in this case the contention that rightly construed the act of Congress involved (The Espionage Act of May 16, 1918; 40 Stat. 553) required that defendant's intent be specifically proved. He wrote: "I am aware of course that the word intent as vaguely used in ordinary legal discussion means no more than knowledge at the time of the act that the consequences said to be intended will ensue. Even less than that will satisfy the general principle of civil and criminal liability. A man may have to pay damages, may be sent to prison, at common law might be hanged, if at the time of his act he knew facts from which common experience showed that the consequences would follow, whether he individually could foresee them or not. But, when words are used exactly, a deed is not done with intent to produce a consequence unless that consequence is the aim of the deed. It may be obvious, and obvious to the actor, that the consequence will follow, and he may be liable for it even if he regrets it, but he does not do the act with intent to produce it unless to aim to produce it is the proximate motive of the specific act, although there may be some deeper motive behind. It seems to me that this statute must be taken to use its words in a strict and accurate sense." 250 U.S. at 626-627. In the Holmes-Pollock Letters this is the main point discussed by the two correspondents regarding the Abrams Case; the clear and present danger doctrine is not mentioned. 2 Holmes-Pollock Letters, 29, 31, 32, 42, 44-45, 48, 65.

[93] 251 U.S. 466 (1920).

[94] Ibid. 479. See also to the same effect: Pierce v. United States, 252 U.S. 239 (1920).

[95] 268 U.S. 652 (1925).

[96] Ibid. 668, 669.

[97] Ibid. 670.

[98] Ibid. 671. Justice Holmes presented a dissenting opinion for himself and Justice Brandeis which contains a curious note of fatalism. He said: "If what I think the correct test is applied, it is manifest that there was no present danger of an attempt to overthrow the government by force on the part of the admittedly small minority who shared the defendant's views. It is said that this Manifesto was more than a theory, that it was an incitement. Every idea is an incitement. It offers itself for belief, and, if believed, it is acted on unless some other belief outweighs it, or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker's enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us, it had no chance of starting a present conflagration. If, in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way." Ibid. 673.

[99] 274 U.S. 357 (1927).

[100] Ibid. 373, 377. Apparently this means that the ultimate test of the constitutionality of legislation restricting freedom of utterance is whether there is still sufficient time to educate the utterers out of their mistaken frame of mind, and the final say on this necessarily recondite matter rests with the Supreme Court! Justice Brandeis also asserts (274 U.S. at 376) that there is a distinction between "advocacy" and "incitement," but fails to adduce any supporting authority.

[101] 301 U.S. 242 (1937).

[102] Ibid. 261-263.

[103] 310 U.S. 88 (1940).

[104] Ibid. 105.

[105] Cantwell v. Connecticut, 310 U.S. 296, 308 (1940).

[106] Stromberg v. California, 283 U.S. 359, 369 (1931).

[107] Fox v. Washington, 236 U.S. 273, 277 (1915).

[108] Gitlow v. New York, 268 U.S. 652 (1925).

[109] Terminiello v. Chicago, 337 U.S. 1 (1949).

[110] Ibid. 4.

[111] Ibid. 33. Dissenting opinions were written by Chief Justice Vinson, Justice Frankfurter (with whom Justices Jackson and Burton concurred) and Justice Jackson, (with whom Justice Burton agreed).

[112] 340 U.S. 315 (1951).

[113] Ibid. 319-320. Anent this finding, Justice Douglas, in his dissent, declared that: "Public assemblies and public speech occupy an important role in American life. One high function of the police is to protect these lawful gatherings so that the speakers may exercise their constitutional rights. When unpopular causes are sponsored from the public platform, there will commonly be mutterings and unrest and heckling from the crowd. * * * But those extravagances * * *, do not justify penalizing the speaker by depriving him of the platform or by punishing him for his conduct. * * * If * * * the police throw their weight on the side of those who would break up the meetings, the police become the new censors of speech. Police censorship has all the vices of the censorship from city halls which we have repeatedy [sic] struck down."--Ibid. 330-331.

[114] 333 U.S. 507 (1948).

[115] Ibid. 514-515.

[116] Musser v. Utah, 333 U.S. 95 (1948).

[117] Ibid. 101. This dissent probably marks the climax of the clear and present danger doctrine.

"On March 20, 1949, members of the Vice Squad of the Philadelphia Police Department, at the direction of Inspector Craig Ellis, head of the Vice Squad, commenced a series of mass raids upon book stores and booksellers in Philadelphia. Inspector Ellis gave his men a list of books that in his opinion were obscene, and directed them to seize the books wherever found. Fifty-four booksellers were raided, and nearly twelve hundred copies of the books were confiscated.

"These raids were remarkable not only because of the scale on which they were conducted, but in several other respects. First, they were directed in major part against books written by authors in the forefront of American literature and published by some of the leading publishers in America. Second, the raids were conducted and the books were confiscated without warrants of search or seizure or court order of any kind. Third, the list of books to be seized was compiled by Inspector Ellis and a patrolman in his office, without consultation with the District Attorney's office or the obtaining of any legal opinion as to whether the books were obscene under the Pennsylvania statute.

"For once the publishers took the offensive. Houghton Mifflin Company, publisher of Raintree County, Alfred A. Knopf, Inc., publisher of Never Love a Stranger, and The Vanguard Press, Inc., publisher of books by James T. Farrell and Calder Willingham among those seized, commenced actions in the Federal District Court in Philadelphia to restrain further police seizures of these books and to recover damages from the police officers for their unlawful acts. In these two actions the authors Harold Robbins and James T. Farrell, as well as Charles Praissman, a courageous bookseller whose stores had been raided, joined the publishers as parties plaintiff. The District Attorney of Philadelphia countered by commencing criminal proceedings against five of the booksellers whose stores had been raided, and on June 30, 1948 the grand jury, upon presentation of the District Attorney, indicted the booksellers on a charge of having violated the Pennsylvania statute prohibiting the sale of obscene books.

"In the meantime the Federal court cases brought by the publishers has come to trial before Judge Guy K. Bard, and at the conclusion of the trials Judge Bard had enjoined further seizures of the plaintiff's books, as well as police invasion of Praissman's stores or seizure of his books without a warrant. At the time of this writing, the Federal court cases have not been finally decided.

"On January 3, 1949 the criminal cases came on for trial before Judge Curtis Bok of the Pennsylvania Court of Quarter Sessions. The defendants pleaded not guilty and waived trial by jury. They stipulated that at the times and places mentioned in the indictments they had had possession of the books for the purpose of offering them for sale to the public. The books were then placed in evidence, and the prosecution rested its case. The defendants 'demurred to the evidence,' the effect of which was to raise the issue of whether the court, in the light of the constitutional guaranty of freedom of the press, could hold, beyond a reasonable doubt, that the books before it were obscene within the meaning of the Pennsylvania obscenity statute." Introductory note to a republication by Alfred Knopf Inc. of Judge Bok's opinion in Commonwealth v. Gordon et al., 66 D & C (Pa.) 101 (1949).

On March 18, 1949 Judge Bok sustained the demurrers and entered judgment in favor of the defendants. The opinion which accompanies his judgment pivots in part on the clear and present danger rule. It reads: "The only clear and present danger to be prevented by section 524 that will satisfy both the Constitution and the current customs of our era is the imminence of the commission of criminal behavior resulting from the reading of a book. Publication alone can have no such automatic effect."

This obviously overlooks the primary purpose of governmental interference with the distribution of "obscene literature," namely to protect immature minds from contamination. Dealing with this point Judge Bok protests against putting "the entire reading public at the mercy of the adolescent mind." Should, on the other hand, the adolescent mind be put at the mercy of the uninhibited reading tastes of an elderly federal judge?

[118] 310 U.S. 88 (1940).

[119] 310 U.S. 106 (1940).

[120] Thornhill v. Alabama, 310 U.S. 88, 102, 105 (1940).

[121] Drivers Union v. Meadowmoor Co., 312 U.S. 287 (1941); See also Hotel and Restaurant Employees' Alliance v. Board, 315 U.S. 437 (1942).

[122] Drivers Union v. Meadowmoor Co., 312 U.S. 287, 293 (1941).

[123] American Federation of Labor v. Swing, 312 U.S. 321 (1941); Bakery and Pastry Drivers v. Wohl, 315 U.S. 769 (1942); Cafeteria Employees Union v. Gus Angelos, 320 U.S. 293 (1943).

[124] Teamsters Union v. Hanke, 339 U.S. 470, 474 (1950).

[125] Giboney v. Empire Storage Co., 336 U.S. 490 (1949).

[126] Building Service Union v. Gazzam, 339 U.S. 532 (1950).

[127] Hughes v. Superior Court, 339 U.S. 460 (1950).

[128] Carpenters Union v. Ritter's Cafe, 315 U.S. 722, 728 (1942).

[129] Giboney v. Empire Storage Co., 336 U.S. 490 (1949).

[130] Ibid. 501, 502, citing Fox v. Washington, 236 U.S. 273, 277, which predates any suggestion of the clear and present danger formula. See above. [Transcriber's Note: Reference is to Section CONTRASTING OPERATION OF THE COMMON LAW RULE, above.]

[131] Lincoln Union v. Northwestern Co., 335 U.S. 525 (1949); A.F. of L. v. American Sash Co., ibid., 538.

[132] Auto Workers v. Wis. Board, 336 U.S. 245 (1949). In Teamsters Union v. Hanke, 339 U.S. 470 (1950), injunctions by State courts against picketing of a self-employer's place of business to compel him to adopt a union shop were sustained.

[133] Thomas v. Collins, 323 U.S. 516 (1945).

[134] Ibid. 566.

[135] Patterson v. Colorado, 205 U.S. 454 (1907). Cf. Toledo Newspaper Co. v. United States, 247 U.S. 402 (1918) in which the Court affirmed a judgment imposing a fine for contempt of court on an editor who had criticized the action of a federal judge in a pending case. The majority held that such conviction did not violate the First Amendment. Justices Holmes and Brandeis dissented on the ground that the proceedings did not come within the applicable federal statute, but did not discuss the constitutional issue. This decision was overruled in Nye v. United States, 313 U.S. 33 (1941).

[136] 314 U.S. 252 (1941).

[137] Ibid. 271.

[138] Ibid. 283, 284.

[139] 328 U.S. 331 (1946).

[140] Ibid. 350.

[141] Ibid. 349.

[142] 331 U.S. 367 (1947).

[143] Ibid. 376.

[144] Davis v. Massachusetts, 107 U.S. 43 (1897).

[145] Ibid. 47.

[146] 307 U.S. 496, 515, 516 (1939).

[147] 334 U.S. 558 (1948).

[148] Kovacs v. Cooper, 336 U.S. 77 (1949).

[149] Public Utilities Commission v. Pollak, 343 U.S. 451 (1952). The decision overruled the United States Court of Appeals for the District of Columbia. Here Judge Edgerton, speaking for himself and two associates, said: "Exploitation of this audience through assault on the unavertible sense of hearing is a new phenomenon. It raises 'issues that were not implied in the means of communication known or contemplated by Franklin and Jefferson and Madison.' But the Bill of Rights, as appellants say in their brief, can keep up with anything an advertising man or an electronics engineer can think of. * * *

"If Transit obliged its passengers to read what it liked or get off the car, invasion of their freedom would be obvious. Transit obliges them to hear what it likes or get off the car. Freedom of attention, which forced listening destroys, is a part of liberty essential to individuals and to society. The Supreme Court has said that the constitutional guarantee of liberty 'embraces not only the right of a person to be free from physical restraint, but the right to be free in the enjoyment of all his faculties * * *.' One who is subjected to forced listening is not free in the enjoyment of all his faculties." He quoted with approval Justice Reed's statement in Kovacs v. Cooper, "The right of free speech is guaranteed every citizen that he may reach the minds of willing listeners."--191 F. 2d 450, 456 (1951).

[150] Lovell v. Griffin, 303 U.S. 444 (1938); Schneider v. State, 308 U.S. 147 (1939); Largent v. Texas, 318 U.S. 418 (1943).

[151] Schneider v. State, 308 U.S. 147 (1930); Jamison v. Texas, 318 U.S. 413 (1943).

[152] Marsh v. Alabama, 326 U.S. 501 (1946).

[153] Tucker v. Texas, 326 U.S. 517 (1946).

[154] Valentine v. Chrestensen, 316 U.S. 52 (1942).

[155] Martin v. Struthers, 319 U.S. 141 (1943).

[156] Breard v. Alexandria, 341 U.S. 622 (1951).

[157] 221 U.S. 418, 439 (1911). See below. [Transcriber's Note: Reference is to Section FEDERAL RESTRAINTS ON FREEDOM OF SPEECH AND PRESS, above.]

[158] Near v. Minnesota, 283 U.S. 697 (1931).

[159] Drivers Union v. Meadowmoor Co., 312 U.S. 287 (1941); Carpenters Union v. Ritter's Cafe, 315 U.S. 722 (1942).

[160] 315 U.S. 568 (1942).

[161] 319 U.S. 624 (1943).

[162] 315 U.S. 568, 571, 572 (1942).

[163] 319 U.S. 624, 633 (1943).

[164] Lovell v. Griffin, 303 U.S. 444, 451 (1938).

[165] Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); Cox v. New Hampshire, 312 U.S. 569 (1941).

[166] Lovell v. Griffin, 303 U.S. 444 (1938); Hague v. C.I.O., 307 U.S. 496, 516 (1939); Schneider v. State, 308 U.S. 147 (1939); Cantwell v. Connecticut, 310 U.S. 296 (1940); Largent v. Texas, 318 U.S. 418 (1943); Thomas v. Collins, 323 U.S. 516, 538 (1945); Saia v. New York, 334 U.S. 558 (1948).

[167] Radio Comm'n v. Nelson Bros. Co., 289 U.S. 266 (1933); Communications Comm'n. v. N.B.C., 319 U.S. 239 (1943).

[168] Mutual Film Corp. v. Ohio Indus'l Comm., 236 U.S. 230, 244 (1915).

[169] 334 U.S. 131 (1948).

[170] Ibid. 166.

[171] Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952).

[172] Ibid. 502. Justice Frankfurter, concurring for himself and Justices Jackson and Burton, elaborates upon the vagueness of connotation of the New York Court's use of the word "sacrilegious." See Appendix to his opinion, Ibid. 533-40. Justice Reed, in his concurring opinion, suggests that the Court will now have the duty of examining "the facts of the refusal of a license in each case to determine whether the principles of the First Amendment have been honored." Ibid. 506-507.

[173] 314 U.S. 252 (1941).

[174] Ibid. 263.

[175] 323 U.S. 516 (1945).

[176] Ibid. 529-530.

[177] Palko v. Connecticut, 302 U.S. 319, 327 (1937).

[178] United States v. Carolene Products Co., 304 U.S. 144, 152, fn. 4 (1938).

[179] 328 U.S. 331 (1946).

[180] Ibid. 353.

[181] Kovacs v. Cooper, 336 U.S. 77, 88 (1949).

[182] Ibid. 90.

[183] Brinegar v. United States, 338 U.S. 160, 180 (1949).

[184] Terminiello v. Chicago, 337 U.S. 1, 4 (1949).

[185] Kunz v. New York, 340 U.S. 290, 302.

[186] Ibid. 309. In a footnote Justice Jackson points to the peculiarly protected position of the Court today, thanks to ch. 479, Public Law 250, 81st Congress, approved August 18, 1949. This makes it unlawful to "make any harangue or oration, or utter loud, threatening, or abusive language in the Supreme Court Building or grounds." Sec. 5. It also forbids display of any "flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement." Sec. 6. Moreover, it authorizes the marshal to "prescribe such regulations approved by the Chief Justice of the United States, as may be deemed necessary for the adequate protection of the Supreme Court Building and grounds and of persons and property therein, and for the maintenance of suitable grounds." Sec. 7. Violation of these provisions or regulations is an offense punishable by fine and imprisonment.

[187] Grosjean v. American Press Co., 297 U.S. 233, 246 (1936).

[188] Ibid. 250.

[189] Ibid.

[190] Murdock v. Pennsylvania, 319 U.S. 105 (1943); Jones v. Opelika, 319 U.S. 103 (1943); Follett v. McCormick, 321 U.S. 573 (1944).

[191] Associated Press v. United States, 326 U.S. 1 (1945). A newspaper publisher who enjoyed a substantial monopoly of mass distribution of news was enjoined from refusing advertising from persons advertising over a competing radio station. The Court sustained the injunction against the objection that it violated freedom of the press, holding that appellant was guilty of attempting to monopolize interstate commerce. Lorain Journal v. United States, 342 U.S. 143 (1951).

[192] Associated Press v. Labor Board, 301 U.S. 103, 133 (1937).

[193] Okla. Press Pub. Co. v. Walling, 327 U.S. 186 (1946).

[194] 221 U.S. 418 (1911).

[195] Ibid. 430.

[196] 314 U.S. 469 (1941).

[197] Ibid: 477.

[198] Ibid. 478.

[199] United States v. C.I.O., 335 U.S. 106 (1948).

[200] 106 U.S. 371 (1882).

[201] 19 Stat. 143 Sec. 6 (1876).

[202] 53 Stat. 1147 (1939).

[203] United Public Workers v. Mitchell, 330 U.S. 75 (1947).

[204] Oklahoma v. United States Civil Serv. Comm., 330 U.S. 127 (1947).

[205] Schenck v. United States, 249 U.S. 47 (1919); Frohwerk v. United States, 249 U.S. 204 (1919); Debs v. United States, 249 U.S. 211 (1919); Abrams v. United States, 250 U.S. 616 (1919); Schaefer v. United States, 251 U.S. 466 (1919); Pierce v. United States, 252 U.S. 239 (1920); cf. Gilbert v. Minnesota 254 U.S. 325 (1920); Hartzel v.. United States, 322 U.S. 680 (1944).

[206] 341 U.S. 494 (1951).

[207] 61 Stat. 136, 146 (1947); "Taft-Hartley Act."

[208] 339 U.S. 382 (1950).

[209] 339 U.S. 846 (1950). Answering in 1882 the objection of a pensioner to the terms of an act under which he received his pension from the Government, the Court answered: "Pensions are the bounties of the government, which Congress has the right to give, withhold, distribute or recall, at its discretion." United States v. Teller, 107 U.S. 64, 68. Can it be doubted that Congress has power to repeal at any time the protection which present legislation affords organized labor?

[210] 339 U.S. 382, 394, 397 (1950).

[211] Dennis v. United States, 341 U.S. 494 (1951).

[212] 54 Stat. 670 (1940).

[213] 341 U.S. 494, 509.

[214] Ibid. 509.

[215] Ibid. 510; citing 183 F. (2d) at 212.

[216] 341 U.S. 494, 510-511.

[217] Ibid. 513.

[218] 341 U.S. 494, 519-520.

[219] Ibid. 525.

[220] Ibid. 527-528.

[221] 341 U.S. 494, 539.

[222] 268 U.S. 652 (1925).

[223] 341 U.S. 494, 541.

[224] Ibid. 542.

[225] Ibid. 551-552.

[226] 341 U.S. 494, 567-569.

[227] Ibid. 572.

[228] 341 U.S. 494, 586; citing 274 U.S. 357, 376-377.

[229] Anti-Fascist Committee v. McGrath, 341 U.S. 123 (1951) heads the list.

[230] 341 U.S. 494 (1951).

[231] 339 U.S. 382; ibid. 846 (1950).

[232] 341 U.S. 716 (1951).

[233] 342 U.S. 485 (1952).

[234] New York Laws, 1949, c. 360.

[235] 342 U.S. 485, 493. Justice Frankfurter dissented on jurisdictional grounds. Justices Black and Douglas attacked the merits of the decision. Said the latter: "What happens under this law is typical of what happens in a police state. Teachers are under constant surveillance; their pasts are combed for signs of disloyalty; their utterances are watched for clues to dangerous thoughts. A pall is cast over the classrooms. There can be no real academic freedom in that environment. Where suspicion fills the air and holds scholars in line for fear of their jobs, there can be no exercise of the free intellect. Supineness and dogmatism take the place of inquiry. A 'party line'--as dangerous as the 'party line' of the Communists--lays hold. It is the 'party line' of the orthodox view, of the conventional thought, of the accepted approach. A problem can no longer be pursued with impunity to its edges. Fear stalks the classroom. The teacher is no longer a stimulant to adventurous thinking; she becomes instead a pipe line for safe and sound information. A deadening dogma takes the place of free inquiry. Instruction tends to become sterile; pursuit of knowledge is discouraged; discussion often leaves off where it should begin." Ibid. 510.

[236] 343 U.S. 250 (1952).

[237] Ibid. 258.

[238] Ibid, 259-263 passim. Justice Douglas, dissenting, urged the "absolute" character of freedom of speech and deplored recent cases in which, he asserted, the Court "has engrafted the right of regulation onto the First Amendment by placing in the hands of the legislative branch the right to regulate 'within reasonable length' the right of free speech. This to me is an ominous and alarming trend." Ibid. 285. Justices Black, Reed and Jackson also dissented. Justice Jackson's dissenting opinion is characteristically paradoxical: "An Illinois Act, construed by its Supreme Court to be a 'group libel' statute, has been used to punish criminally the author and distributor of an obnoxious leaflet attacking the Negro race. He answers that, as applied, the Act denies a liberty secured to him by the Due Process Clause of the Fourteenth Amendment. What is the liberty which that clause underwrites? The spectrum of views expressed by my seniors shows that disagreement as to the scope and effect of this Amendment underlies this, as it has many another, division of the Court. All agree that the Fourteenth amendment does confine the power of the State to make printed words criminal. Whence we are to derive metes and bounds of the state power is a subject to the confusion of which, I regret to say, I have contributed--comforted in the acknowledgment, however, by recalling that this Amendment is so enigmatic and abstruse that judges more experienced than I have had to reverse themselves as to its effect on state power. The thesis now tendered in dissent is that the 'liberty' which the Due Process Clause of the Fourteenth Amendment protects against denial by the States is the literal and identical 'freedom of speech or of the press' which the First Amendment forbids only Congress to abridge. The history of criminal libel in America convinces me that the Fourteenth Amendment did not 'incorporate' the First, that the powers of Congress and of the States over this subject are not of the same dimensions, and that because Congress probably could not enact this law it does not follow that the States may not." Ibid. 287-288. Proceeding from this position, Justice Jackson is able, none the less, to dissent from the Court's judgment. Cf. Chief Justice Stone's position in United States v. Carolene Products Co., 304 U.S. 144, at 152-53, note 4 (1938).

[239] 20 Stat. 355, 358 (1879); 48 Stat. 928 (1934).

[240] 327 U.S. 146 (1946).

[241] Ibid. 158. Justice Frankfurter, while concurring, apparently thought that the question of Congress's power in the premises was not involved. Ibid. 159-160. On this broader question, see p. 269. (The Postal Clause).

[242] 333 U.S. 178 (1948); Public Clearing House v. Coyne, 194 U.S. 497 (1904).

[243] Here it is recited in part: "That if we, our justiciary, our bailiffs, or any of our officers, shall in any circumstances have failed in the performance of them toward any person, or shall have broken through any of these articles of peace and security, and the offence be notified to four barons chosen out of the five-and-twenty before mentioned, the said four barons shall repair to us, or our justiciary, if we are out of the realm, and laying open the grievance, shall petition to have it redressed without delay."

[244] 12 Encyclopedia of the Social Sciences, 98 ff, "Petition, Right of" (New York, 1934).

[245] United States v. Cruikshank, 92 U.S. 542, 552 (1876) reflects this older view.

[246] De Jonge v. Oregon, 299 U.S. 353, 364, 365 (1937). See also Herndon v. Lowry, 301 U.S. 242 (1937).

[247] For the details of Adams' famous fight on "The Gag Rule," see Andrew C. McLaughlin, A Constitutional History of the United States, pp. 478-481, Appleton-Century-Crofts, Inc., New York (1935).

[248] Rules and Manual United States House of Representatives (1949), Eighty-first Congress, by Lewis Deschler, Parliamentarian, United States Government Printing Office, Washington (1949), pp. 430-433.

[249] United States v. Baltzer, Report of the Attorney General, 1918, p. 48.

[250] 92 U.S. 542 (1876).

[251] 16 Stat. 141 (1870).

[252] 92 U.S. 542, 552-553 (1876). At a later point in its opinion the Court used the following language: "Every republican government is in duty bound to protect all its citizens in the enjoyment of an equality of right. That duty was originally assumed by the States; and it still remains there. The only obligation resting upon the United States is to see that the States do not deny the right. This the Amendment guarantees, but no more. The power of the national government is limited to the enforcement of this guaranty." Ibid. 555. These words have reference, quite clearly, to counts of the indictment alleging acts of the conspirators denying "equal protection of the laws" "to persons of color," Congress's power to protect which is derived from Amendment XIV and is confined as the Court says, to protection against State acts. The above quoted words have, however, caused confusion. See pp. 1176-1177.

[253] Hague v. C.I.O., 307 U.S. 496 (1939).

[254] 49 Stat. 449 (1935).

[255] 307 U.S. 496, 515-516 (1939).

[256] Ibid. 525.

[257] "As to the American Civil Liberties Union, which is a corporation, it cannot be said to be deprived of the civil rights of freedom of speech and of assembly, for the liberty guaranteed by the due process clause is the liberty of natural, not artificial, persons. Northwestern Nat. L. Ins. Co. v. Riggs, 203 U.S. 243, 255; Western Turf Asso. v. Greenberg, 204 U.S. 359, 363;" 307 U.S. 496, 527 (1939). See also ibid. 514.

[258] 167 U.S. 43 (1897). This case was treated above, at p. 784.

[259] 314 U.S. 252 (1941).

[260] 323 U.S. 516 (1945).

[261] Auto Workers v. Wis. Board, 336 U.S. 245 (1949).

[262] Collins v. Hardyman, 341 U.S. 651 (1951); 17 Stat. 13, 8 U.S.C. Sec. 47 (3).

[263] 341 U.S. 651, 663 (1951).

[264] 2 U.S.C. Sec. 261-270. See also: General Interim Report of the House Select Committee on Lobbying Activities, Eighty-First Congress, Second Session, created pursuant to H. Res. 298, October 20, 1950, United States Government Printing Office, Washington (1950): see also 9 Encyclopedia of the Social Sciences 567, "Lobbying."

[265] National Association of Manufacturers v. McGrath, 103 F. Supp. 510 (1952). Upon review, the Supreme Court vacated this judgment as moot.--334 U.S. 804, 807.

[266] Rumely v. United States, 197 F. 2d 166, 174-175 (1952).

AMENDMENT 2

BEARING ARMS

Amendment 2

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.

The protection afforded by this amendment prevents infringement by Congress of the right to bear arms for a lawful purpose, but does not apply to such infringement by private citizens. For this reason an indictment under the Enforcement Act of 1870,[1] charging a conspiracy to prevent Negroes from bearing arms for lawful purposes was held defective.[2] A State statute which forbids bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, does not abridge the right of the people to keep and bear arms.[3] In the absence of evidence tending to show that possession or use of a shotgun having a barrel of less than 18 inches in length has some reasonable relationship to the preservation or efficiency of a well regulated militia, the Court refused to hold invalid a provision in the National Firearms Act[4] against the transportation of unregistered shotguns in interstate commerce.[5]

Notes

[1] 16 Stat. 140 (1870).

[2] United States v. Cruikshank, 92 U.S. 542, 553 (1876).

[3] Presser v. Illinois, 116 U.S. 252, 265 (1886).

[4] 48 Stat. 1236 (1934).

[5] United States v. Miller, 307 U.S. 174 (1939).

AMENDMENT 3

QUARTERING SOLDIERS

Amendment 3

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

"This amendment seems to have been thought necessary. It does not appear to have been the subject of judicial exposition; and it is so thoroughly in accord with all our ideas, that further comment is unnecessary."[1]

Notes

[1] Miller, Samuel F., The Constitution (1893), page 646.

AMENDMENT 4

SEARCHES AND SEIZURES

Page Coverage of the amendment 823 Necessity, sufficiency and effect of warrants 825 Records, reports and subpoenas 825 Search and seizure incidental to arrest 828 Search of vehicles 830 Use of evidence 830

SEARCHES AND SEIZURES

Amendment 4

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Coverage of the Amendment

This amendment denounces only such searches and seizures as are "unreasonable," and is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted and in a manner to conserve public interests as well as the rights of individuals.[1] It applies only to governmental action, not to the unlawful acts of individuals in which the government has no part.[2] It has no reference to civil proceedings for the recovery of debts; consequently, a distress warrant issued by the Solicitor of the Treasury under an act of Congress is not forbidden, though issued without support of an oath or affirmation.[3] But the amendment is applicable to search warrants issued under any statute, including revenue and tariff laws.[4]

Security "in their persons, houses, papers and effects" is assured to the people by this article. Not only the search of a dwelling, but also of a place of business,[5] a garage,[6] or a vehicle,[7] is limited by its provisions. But open fields are not covered by the term "house"; they may be searched without a warrant.[8] A sealed letter deposited in the mails may not be opened by the postal authorities without the sanction of a magistrate.[9] The subpoena of private papers is subject to its test of reasonableness.[10] Retention for use as evidence of a letter voluntarily written by a prisoner, which, without threat or coercion, came into the possession of prison officials under the practice and discipline of the institution, is not prohibited.[11] Where officers demand admission to private premises in the name of the law, their subsequent explorations are searches within the meaning of the Constitution, even though the occupant opens the door to admit them.[12] A peremptory demand by federal officers that a person suspected of crime open a locked room and hand over ration coupons kept there was held not to amount to a seizure in view of the fact that the coupons were government property which the custodian was under a duty to surrender.[13] Neither wiretapping,[14] nor the use of a detectaphone to listen to a conversation in an adjoining room,[15] nor interrogation under oath by a government official of a person lawfully in confinement[16] is within the purview of this article. Nor does it apply to statements made by an accused on his own premises to an "undercover agent" whose identity was not suspected and who had on his person a radio transmitter which communicated the statements to another agent outside the building.[17] Said Justice Jackson for the Court: "Petitioner relies on cases relating to the more common and clearly distinguishable problems raised where tangible property is unlawfully seized. Such unlawful seizure may violate the Fourth Amendment, even though the entry itself was by subterfuge or fraud rather than force. But such decisions are inapposite in the field of mechanical or electronic devices designed to overhear or intercept conversation, at least where access to the listening post was not obtained by illegal methods."[18] But narcotics seized in a hotel room during absence of the owner, in the course of a search without warrant for either search or arrest, were not adducible as evidence against the owner, who, however, was not entitled to have them returned since they were legal contraband.[19]

Necessity, Sufficiency and Effect of Warrants

A warrant of commitment by a justice of the peace must state a good cause certain and be supported by oath.[20] A notary public is not authorized to administer oaths in federal criminal proceedings; hence a warrant based on affidavits verified before a notary is invalid.[21] A warrant of the Senate for attachment of a person who ignored a subpoena from a Senate committee is supported by oath within the requirement of this amendment when based upon the committee's report of the facts of the contumacy, made on the committee's own knowledge and having the sanction of the oath of office of its members.[22]

A belief, however well founded, that an article sought is concealed in a dwelling house furnishes no justification for a search without a warrant.[23] A warrant issued upon an information stating only that "affiant has good reason to believe and does believe" that defendant has contraband materials in his possession is clearly bad under the Fourth Amendment.[24] It is enough, however, if the apparent facts set out in the affidavit are such that a reasonably discreet and prudent man would be led to believe that the offense charged had been committed.[25]

The requirement of the Fourth Amendment that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken nothing is left to the discretion of the officer executing the warrant.[26] Private papers of no pecuniary value, in which the sole interest of the Federal Government is their value as evidence against the owner in a contemplated criminal prosecution, may not be taken from the owner's house or office under a search warrant.[27]

Records, Reports and Subpoenas

Since the common law did not countenance compulsory self incrimination, many years passed before the Supreme Court was called upon to interpret the constitutional provisions bearing upon the privilege against such testimonial compulsion. Not until Boyd v. United States[28] did it have to meet the issue; there, pursuant to an act of Congress, a court had issued an order in a proceeding for the forfeiture of goods for fraudulent nonpayment of customs duties, requiring the claimant to produce in court his invoices covering the goods, on pain of having the allegation taken as confessed against him. The order and the statute which authorized it were held unconstitutional in a notable opinion by Justice Bradley, as follows: "Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man's own testimony or of his private papers to be used as evidence to convict him of crime or to forfeit his goods, is [forbidden] * * * In this regard the Fourth and Fifth Amendments run almost into each other."[29] Thus the case established three propositions of far-reaching significance: (1) that a compulsory production of the private papers of the owner in such a suit was a search and seizure within the meaning of the Fourth Amendment;[30] (2) that in substance such seizure compelled him to be a witness against himself in violation of Amendment V,[31] and (3) that, because it was a violation of the Fifth Amendment, it was also an unreasonable search and seizure under the Fourth.[32]

Only natural persons can resist the subpoena of private papers on the ground of self incrimination.[33] Even an individual cannot refuse to produce records which are in his custody on the plea that they might incriminate the owner or himself where the documents belong to a corporation,[34] or to a labor union.[35] A bankrupt can be compelled to turn over records which are part of his estate.[36] Papers already in the custody of a United States court in consequence of their having been used by the owner himself as evidence on another proceeding may be used before a grand jury as a basis for an indictment for perjury.[37] A corporation may challenge an order for the production of records if it is unreasonable on grounds other than self incrimination, i.e., if it is too sweeping,[38] if the information sought is not relevant to any lawful inquiry,[39] or if it represents "a fishing expedition" in quest of evidence of crime.[40] In Oklahoma Press Pub. Co. v. Walling,[41] the question of the protection afforded by the Constitution against the subpoena of corporate records was thoroughly reviewed. Justice Rutledge summarized the Court's views in the following words: "* * * the Fifth Amendment affords no protection by virtue of the self incrimination provision, whether for the corporation or for its officers; and the Fourth, if applicable, at the most guards against abuse only by way of too much indefiniteness or breadth in the things required to be 'particularly described,' if also the inquiry is one the demanding agency is authorized by law to make and the materials specified are relevant. The gist of the protection is in the requirement, expressed in terms, that the disclosure sought shall not be unreasonable. * * * It is not necessary, as in the case of a warrant, that a specific charge or complaint of violation of law be pending or that the order be made pursuant to one. It is enough that the investigation be for a lawfully authorized purpose, within the power of Congress to command. * * * The requirement of 'probable cause, supported by oath or affirmation,' literally applicable in the case of a warrant is satisfied, in that of an order for production, by the court's determination that the investigation is authorized by Congress, is for a purpose Congress can order, and the documents sought are relevant to the inquiry. Beyond this the requirement of reasonableness, including particularity in 'describing the place to be searched, and the persons or things to be seized,' also literally applicable to warrant, comes down to specification of the documents to be produced adequate, but not excessive, for the purposes of the relevant inquiry."[42]

As a means of enforcing a valid statute, the Government may require any person subject thereto "to keep a record showing whether he has in fact complied with it,"[43] and to submit that record to inspection by government officers.[44] It may also compel the filing of returns disclosing the amount of tax liability,[45] and of reports under oath showing instances where employees have worked in excess of hours of labor permitted by law.[46] Without violating either the Fourth or Fifth Amendments, a judicial decree enjoining illegal practices under the Antitrust Act may provide that the Department of Justice shall be given access to all records and documents of the corporation relating to the matter covered by the decree.[47] The Supreme Court has intimated, however, that record keeping requirements must be limited to data which are relevant to the effective administration of the law.[48]

Search and Seizure Incidental to Arrest

The right to search the person upon arrest has long been recognized[49] but authority to search the premises upon which the arrest is made has been approved only in recent years. In Agnello v. United States,[50] the Supreme Court asserted that: "The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted."[51] Books and papers used to carry on a criminal enterprise, which are in the immediate possession and control of a person arrested for commission of an offense in the presence of the officers may be seized when discovered in plain view during a search of the premises following the arrest.[52] The lawful arrest of persons at their place of business does not justify a search of desks and files in the offices where the arrest is made and seizure of private papers found thereon.[53] A search which is unlawfully undertaken is not made valid by the evidence of crime which it brings to light.[54]

By a five to four decision in Harris v. United States[55] the Court sustained, as an incident to a lawful arrest, a five hour search by four federal officers of every nook and cranny of a four-room apartment. It also upheld the seizure of papers unrelated to the crime for which the arrest was made, namely, Selective Service Registration cards which were discovered in a sealed envelope in the bottom of a bureau drawer. In justification of this conclusion, Chief Justice Vinson wrote: "Here the agents entered the apartment under the authority of lawful warrants of arrest. Neither was the entry tortious nor was the arrest which followed in any sense illegal. * * * The search was not a general exploration but was specifically directed to the means and instrumentalities by which the crimes charged had been committed, particularly the two canceled checks of the Mudge Oil Company. * * * If entry upon the premises be authorized and the search which follows be valid, there is nothing in the Fourth Amendment which inhibits the seizure by law-enforcement agents of government property the possession of which is a crime, even though the officers are not aware that such property is on the premises when the search is initiated."[56] In a dissenting opinion in which Justices Murphy and Rutledge concurred, Justice Frankfurter challenged the major premises announced by the Court. "To derive from the common law right to search the person as an incident of his arrest the right of indiscriminate search of all his belongings, is to disregard the fact that the Constitution protects [against] both unauthorized arrest and unauthorized search. Authority to arrest does not dispense with the requirement of authority to search. * * * But even if the search was reasonable, it does not follow that the seizure was lawful. If the agents had obtained a warrant to look for the canceled checks, they would not be entitled to seize other items discovered in the process. * * * The Court's decision achieves the novel and startling result of making the scope of search without warrant broader than an authorized search."[57] A more limited search in connection with an arrest was held valid in United States v. Rabinowitz.[58] In that case, government officers, armed with a valid warrant for arrest, had arrested respondent in his one-room office which was open to the public. Thereupon, over his objection, they searched the desk, safe and file cabinets in the office for about an hour and a half and seized 573 forged and altered stamps. Justice Minton assigned five reasons for holding that the search and seizure was reasonable: "(1) the search and seizure were incident to a valid arrest; (2) the place of the search was a business room to which the public, including the officers, was invited; (3) the room was small and under the immediate and complete control of respondent; (4) the search did not extend beyond the room used for unlawful purposes; (5) the possession of the forged and altered stamps was a crime, just as it is a crime to possess burglars' tools, lottery tickets or counterfeit money."[59] This decision also overruled an intermediate case, Trupiano v. United States,[60] whereby the practical effect of the Harris decision had been circumscribed by a ruling that even where a valid arrest is made, a search without a warrant is not permissible if the circumstances make it feasible to procure a warrant in advance.

Search of Vehicles

The Fourth Amendment has been construed "* * *, as recognizing a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon, or automobile for contraband goods, where is it not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. * * * The measure of legality of such a seizure is, therefore, that the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes has contraband liquor therein which is being illegally transported."[61] Where officers have reasonable grounds for searching an automobile which they are following, a search of the vehicle immediately after it has been driven into an open garage is valid.[62] The existence of reasonable cause for searching an automobile does not, however, warrant the search of an occupant thereof, although the contraband sought is of a character which might be concealed on the person.[63]

Use of Evidence

To remove the temptation to ignore constitutional restraints on search and seizure, evidence obtained in violation thereof is made inadmissible against an accused in federal courts.[64] This is contrary to the practice prevailing in the majority of States and has been severely criticized as a matter of principle.[65] The Court has intimated recently that the federal exclusionary rule is not a command of the Fourth Amendment, but merely a judicially created rule of evidence which Congress could overrule. In Wolf v. Colorado,[66] it ruled that while that amendment is binding on the States, it does not prevent State courts from admitting evidence obtained by illegal search. With respect to the federal rule, Justice Frankfurter said: "* * * though we have interpreted the Fourth Amendment to forbid the admission of such evidence, a different question would be presented if Congress, under its legislative powers, were to pass a statute purporting to negate the Weeks doctrine. We would then be faced with the problem of the respect to be accorded the legislative judgment on an issue as to which, in default of that judgment, we have been forced to depend upon our own."[67] This rule does not prevent the use of evidence unlawfully obtained by individuals,[68] or by State officers,[69] unless federal agents had a part in the unlawful acquisition,[70] or unless the arrest and search were made for an offense punishable only by federal law.[71] A search is deemed to be "a search by a federal official if he had a hand in it; * * * [but not] if evidence secured by State authorities is turned over to the federal authorities on a silver platter. The decisive factor * * * is the actuality of a share by a federal official in the total enterprise of securing and selecting evidence by other than sanctioned means. It is immaterial whether a federal agent originated the idea or joined in it while the search was in progress. So long as he was in it before the object of the search was completely accomplished, he must be deemed to have participated in it."[72] Samples of illicit goods constituting part of a quantity seized by federal officials under a valid search warrant may be used as evidence, whether or not the officers become civilly liable as trespassers ab initio, by reason of the fact that they unlawfully destroyed the remainder of the goods at the time the seizure was made.[73]

In Silver Thorne Lumber Co. v.. United States,[74] the Court refused to permit the Government to subpoena corporate records of which it had obtained knowledge by an unlawful search. To permit "knowledge gained by the Government's own wrong" to be so used would do violence to the Bill of Rights.[75] But a defendant in a civil antitrust suit may be required to produce records which had been previously subpoenaed before a grand jury, despite the fact that the grand jury was illegally constituted because women were excluded from the panel.[76] Where government agents lawfully obtained knowledge of the contents of a cancelled check during examination of the records of a government contractor, the admission of such check in evidence was held not to be an abuse of discretion even if the seizure of the check itself was deemed illegal.[77] The seizure of papers under a writ of replevin issued in a civil suit between private persons does not violate the Fourth and Fifth Amendments.[78]

Notes

[1] Carroll v. United States, 267 U.S. 132, 147, 149 (1925).

[2] Burdeau v. McDowell, 256 U.S. 465, 475 (1921).

[3] Den ex dem. Murray v. Hoboken Land & Improv. Co., 18 How. 272, 285 (1856).

[4] Nathanson v. United States, 290 U.S. 41, 47 (1933)

[5] Gouled v. United States, 255 U.S. 298 (1921).

[6] Taylor v. United States, 286 U.S. 1 (1932).

[7] Carroll v. United States, 267 U.S. 132 (1925).

[8] Hester v. United States, 265 U.S. 57 (1924).

[9] Ex parte Jackson, 96 U.S. 727, 733 (1878).

[10] Boyd v. United States, 116 U.S. 616 (1886); Hale v. Henkel, 201 U.S. 43 (1906).

[11] Stroud v. United States, 251 U.S. 15, 21 (1919).

[12] Amos v. United States, 255 U.S. 313 (1921); Johnson v. United States, 333 U.S. 10 (1948).

[13] Davis v. United States, 328 U.S. 582 (1946).

[14] Olmstead v. United States, 277 U.S. 438 (1928). Cf. Nardone v. United States, 302 U.S. 379 (1937); 308 U.S. 338 (1939).

[15] Goldman v. United States, 316 U.S. 129 (1942).

[16] Bilokumsky v. Tod, 203 U.S. 149, 155 (1923).

[17] On Lee v. United States, 343 U.S. 747 (1952).

[18] Ibid. 753. Four Justices dissented, relying in the main on the dissent in the Olmstead case, which came later to be adopted by Congress. See note 10 above. [Transcriber's Note: Reference is to Footnote 14, above.]

[19] United States v. Jeffers, 342 U.S. 48 (1951).

[20] Ex parte Burford, 3 Cr. 448 (1806).

[21] Albrecht v. United States, 273 U.S. 1 (1927).

[22] McGrain v. Daugherty, 273 U.S. 135, 156, 158 (1927).

[23] Agnello v. United States, 269 U.S. 20 (1925).

[24] Byars v. United States, 273 U.S. 28, 29 (1927).

[25] Steele v. United States, No. 1, 267 U.S. 498, 504, 505 (1925); Dumbra v. United States, 268 U.S. 435, 441 (1925).

[26] Marron v. United States, 275 U.S. 192, 196 (1927).

[27] Gouled v. United States, 255 U.S. 298 (1921).

[28] 116 U.S. 616 (1886).

[29] Ibid. 630.

[30] Ibid. 634, 635.

[31] Ibid. 633.

[32] Ibid. 635.

[33] Hale v. Henkel, 201 U.S. 43, 74 (1906); Essgee Co. v. United States, 262 U.S. 151 (1923). Cf. Interstate Commerce Commission v. Baird, 194 U.S. 25, 46 (1904).

[34] Wilson v. United States, 221 U.S. 361 (1911). See also Wheeler v. United States, 226 U.S. 478 (1913); Grant v. United States, 227 U.S. 74 (1913).

[35] United States v. White, 322 U.S. 694 (1944).

[36] Re Fuller, 262 U.S. 91 (1923). See also McCarthy v. Arndstein, 266 U.S. 34, 41 (1924).

[37] Perlman v. United States, 247 U.S. 7 (1918).

[38] Hale v. Henkel, 201 U.S. 43, 76 (1906).

[39] Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 208 (1946).

[40] Federal Trade Commission v. American Tobacco Co. 264 U.S. 298, 305-306 (1924).

[41] 327 U.S. 186 (1946).

[42] Ibid. 208-209.

[43] United States v. Darby, 312 U.S. 100, 125 (1941).

[44] Shapiro v. United States, 335 U.S. 1, 32 (1918).

[45] Flint v. Stone Tracy Co., 220 U.S. 107, 175 (1911).

[46] Baltimore & O.R. Co. v. Interstate Commerce Comm'n., 21 U.S. 612 (1911).

[47] United States v. Bausch & L. Optical Co., 321 U.S. 707, 725 (1944). Cf. United States v. Morton Salt Co., 338 U.S. 632 (1950).

[48] Shapiro v. United States, 335 U.S. 1, 32 (1948); Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 208 (1946).

[49] Weeks v. United States, 232 U.S. 383, 392 (1914).

[50] 269 U.S. 20 (1925).

[51] Ibid. 30.

[52] Marron v. United States, 275 U.S. 192 (1927).

[53] Go-Bart Importing Co. v. United States, 282 U.S. 344 (1931); United States v. Lefkowitz, 285 U.S. 452 (1932).

[54] Byars v. United States, 273 U.S. 28 (1927); Johnson v. United States, 333 U.S. 10, 16 (1948).

[55] 331 U.S. 145 (1947).

[56] Ibid. 153, 155.

[57] Ibid. 165. Separate dissenting opinions were written by Justices Murphy and Jackson.

[58] 339 U.S. 56 (1950).

[59] Ibid. 64.

[60] 334 U.S. 699 (1948); McDonald v. United States, 335 U.S. 451 (1948) is also overruled in effect, although it was not mentioned in the Court's opinion.

[61] Carroll v. United States, 267 U.S. 132, 153-156 (1925). Husty v. United States, 282 U.S. 694 (1931); Brinegar v. United States, 338 U.S. 160 (1949).

[62] Scher v. United States, 305 U.S. 251 (1938).

[63] United States v. Di Re, 332 U.S. 581 (1948).

[64] Weeks v. United States, 232 U.S. 383 (1914). This case was a virtual repudiation of Adams v. New York, 192 U.S. 585, 597 (1904). There the Supreme Court had ruled that in criminal proceedings in a State court the use of private papers obtained by unlawful search and seizure "was no violation of the constitutional guaranty of privilege from unlawful search or seizure." It added: "Nor do we think the accused was compelled to incriminate himself."

[65] Wolf v. Colorado, 338 U.S. 25, 29, 38 (1949); 8 Wigmore on Evidence (3d ed.) Sec. 2184 (1940).

[66] 338 U.S. 25 (1949).

[67] Ibid. 33.

[68] Burdeau v. McDowell, 256 U.S. 465 (1921).

[69] Byars v. United States, 273 U.S. 28, 33 (1927).

[70] Ibid. 32; Lustig v. United States, 338 U.S. 74 (1949).

[71] Gambino v. United States, 275 U.S. 310 (1927).

[72] Lustig v. United States, 338 U.S. 74, 78, 79 (1949).

[73] McGuire v. United States, 273 U.S. 95 (1927).

[74] 251 U.S. 385 (1920).

[75] Ibid. 392.

[76] United States v. Wallace & Tiernan Co., 336 U.S. 793 (1949).

[77] Zap v. United States, 328 U.S. 624 (1946).

[78] American Tobacco Co. v. Werckmeister, 207 U.S. 284, 302 (1907).

AMENDMENT 5

RIGHTS OF PERSONS

Page Rights of accused persons 837 The grand jury clause 837 Double jeopardy 838 Self-incrimination 841 Source of the clause 841 Due process of law 844 Source and evolution of the meaning of the term 844 Scope of the guaranty 846 Procedural due process 846 General 846 Criminal prosecutions 847 Notice and hearing 847 Evidence and presumption in judicial proceedings 848 Administrative proceedings 849 Fair hearing 849 Judicial review 850 Aliens 851 Deportation 852 Substantive due process 853 Discrimination 853 Deprivation of liberty 854 Deprivation of property 855 Retroactive legislation sustained 855 Retroactive legislation disallowed 857 Bankruptcy legislation 857 Right to sue the government 858 Congressional police measures 859 The postal service 859 Regulation of public utilities 860 Regulation of railroads 861 Taxation 862 Retroactive taxes 863 Governance of the Indians 864 The national eminent domain power 864 Scope of power 864 Alien property 865 Public use 865 Rights for which compensation must be made 866 When property is taken 867 Navigable waters 867 Just compensation 869 Interest 871 Enforcement of right to compensation 872

RIGHTS OF PERSONS

Amendment 5

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Rights of Accused Persons

THE GRAND JURY CLAUSE

Within the meaning of this article a crime is made "infamous" by the quality of the punishment which may be imposed.[1] The Court has recognized that: "What punishments shall be considered as infamous may be affected by the changes of public opinion from one age to another."[2] Imprisonment in a State prison or penitentiary, with or without hard labor,[3] or imprisonment at hard labor in the workhouse of the District of Columbia,[4] falls within this category. The pivotal question is whether the offense is one for which the Court is authorized to award such punishment; the sentence actually imposed is immaterial. When an accused is in danger of being subjected to an infamous punishment if convicted, he has the right to insist that he shall not be put upon his trial, except on the accusation of a grand jury.[5] Thus, an act which authorizes imprisonment at hard labor for one year, as well as deportation, of Chinese aliens found to be unlawfully within the United States, creates an offense which can be tried only upon indictment.[6] Counterfeiting,[7] fraudulent alteration of poll books,[8] fraudulent voting,[9] and embezzlement[10] have been declared to be infamous crimes. It is immaterial how Congress has classified the offense.[11] An act punishable by a fine of not more than $1,000 or imprisonment for not more than six months is a misdemeanor, which can be tried without indictment, even though the punishment exceeds that specified in the statutory definition of "petty offenses."[12]

A person can be tried only upon the indictment as found by the grand jury, and especially upon its language found in the charging part of the instrument. A change in the indictment deprives the court of the power to try the accused.[13] There is no constitutional requirement that an indictment be presented by a grand jury in a body; an indictment delivered by the foreman in the absence of the other grand jurors is valid.[14]

The words "when in actual service in time of war or public danger" apply to the militia only. All persons in the regular army or navy are subject to court martial rather than indictment or trial by jury, at all times.[15] The exception of "cases arising in the land or naval forces" was not aimed at trials of offenses against the laws of war. Its objective was to authorize trial by court martial of the members of the Armed Forces for all that class of crimes which under the Fifth and Sixth Amendments might otherwise have been deemed triable in the civil court. Either citizen or alien enemy belligerents may be tried by a military commission for offenses against the laws of war.[16]

DOUBLE JEOPARDY

By the common law not only was a second punishment for the same offense prohibited, but a second trial was forbidden whether or not the accused had suffered punishment, or had been acquitted or convicted.[17] This clause embraces all cases wherein a second prosecution is attempted for the same violation of law, whether felony or misdemeanor.[18] Seventy-five years ago a closely divided Court held that the protection against double jeopardy prevented an appeal by the Government after a verdict of acquittal.[19] A judgment of acquittal on the ground of the bar of the statute of limitations is a protection against a second trial,[20] as is also a general verdict of acquittal upon an issue of not guilty to an indictment which was not challenged as insufficient before the verdict.[21] Where a court inadvertently imposed both a fine and imprisonment for a crime for which the law authorized either punishment, but not both, it could not, after the fine had been paid, during the same term of court, change its judgment by sentencing the defendant to imprisonment.[22] But where a statute carried a minimum mandatory sentence of both a fine and imprisonment, the imposition of the minimum fine five hours after the court had erroneously sentenced the defendant to imprisonment only did not amount to double jeopardy.[23] Whether or not the discontinuance of a trial without a verdict bars a second trial depends upon the circumstances of each case.[24] Discharge of a jury because it is unable to reach an agreement[25] or because of the disqualification of a juror[26] does not preclude a second trial. Where, after a demurrer to the indictment was overruled, a jury was impaneled and witnesses sworn, the discharge of the jury to permit the defendant to be arraigned did not bar a trial before a new jury.[27] The withdrawal of charges after a trial by a general court martial had begun, because the tactical situation brought about by the rapid advance of the army made continuance of the trial impracticable, did not bar a trial before a second court martial.[28] An accused is not put in jeopardy by preliminary examination and discharged by the examining magistrate,[29] by an indictment which is quashed,[30] nor by arraignment and pleading to the indictment.[31] In order to bar prosecution, a former conviction must be pleaded.[32]

A plea of former jeopardy must be upon a prosecution for the same identical offense.[33] The test of identity of offenses is whether the same evidence is required to sustain them; if not, the fact that both charges relate to one transaction does not make a single offense where two are defined by the statutes.[34] Where a person is convicted of a crime which includes several incidents, a second trial for one of those incidents puts him twice in jeopardy.[35] Congress may impose both criminal and civil sanctions with respect to the same act or omission,[36] and may separate a conspiracy to commit a substantive offense from the commission of the offense and affix to each a different penalty.[37] A conviction for the conspiracy may be had though the subsequent offense was not completed.[38] Separate convictions under different counts charging a monopolization and a conspiracy to monopolize trade, in an indictment under the Sherman Antitrust Act, do not amount to double jeopardy.[39] In United States v. National Association of Real Estate Boards,[40] the Court held that an acquittal in a criminal suit charging violation of the Sherman Act does not prevent the issuance of an injunction against future violations. It distinguished but did not overrule an early case which held that where an issue as to the existence of a fact or act had been tried in a criminal proceeding instituted by the United States, a judgment of acquittal, was conclusive in a subsequent proceeding in rem involving the same matter.[41]

A civil action to recover taxes which were in fact penalties for violation of another statute was held to be punitive in character and barred by a prior conviction of the defendant for a criminal offense involving the same transaction.[42] In contrast, the additional income tax imposed when a fraudulent return is filed, was found to be a civil sanction designed to protect the revenue, which might be assessed after acquittal of the defendant for the same fraud.[43] A forfeiture proceeding for defrauding the Government of a tax on alcohol diverted to beverage uses is a proceeding in rem, rather than a punishment for a criminal offense, and may be prosecuted after a conviction of conspiracy to violate the statute imposing the tax.[44]

In an early case, the Court asserted that since robbery on the high seas is considered an offense within the criminal jurisdiction of all nations, the plea of autre fois acquit would be good in any civilized State, though resting on a prosecution instituted in the courts of any other civilized State.[45] It has held, however, that where the same act is an offense against both the State and Federal Governments, its prosecution and punishment by both Governments is not double jeopardy.[46] A contumacious witness is not twice subjected to jeopardy for refusing to testify before a committee of the United States Senate, by being punished for contempt of the Senate and also indicted for a misdemeanor for such refusal.[47]

Self-Incrimination

SOURCE OF THE CLAUSE

"Nor shall be compelled in any criminal case to be a witness against himself." The source of this clause was the maxim that "no man is bound to accuse himself (nemo tenetur prodere--or accusare seipsum)," which was brought forward in England late in the sixteenth century in protest against the inquisitorial methods of the ecclesiastical courts. At that time the common law itself permitted accused defendants to be questioned. What the advocates of the maxim meant was merely that a person ought not to be put on trial and compelled to answer questions to his detriment unless he had first been properly accused, i.e., by the grand jury. But the idea once set going gained headway rapidly, especially after 1660, when it came to have attached to it most of its present-day corollaries.[48]

Under the clause a witness in any proceeding whatsoever in which testimony is legally required may refuse to answer any question, his answer to which might be used against him in a future criminal proceeding, or which might uncover further evidence against him.[49] The witness must explicitly claim his constitutional immunity or he will be considered to have waived it;[50] but he is not the final judge of the validity of his claim.[51] The privilege exists solely for the protection of the witness himself, and may not be claimed for the benefit of third parties.[52] The clause does not impair the obligation of a witness to testify if a prosecution against him is barred by lapse of time, by statutory enactment, or by a pardon;[53] but the effect of a mere tender of pardon by the President remains uncertain.[54] A witness may not refuse to answer questions on the ground that he would thereby expose himself to prosecution by a state.[55] Conversely, the admission against a defendant in a federal court of testimony given by him in a state court under a statute of immunity is valid.[56] If an accused takes the stand in his own behalf, he must submit to cross-examination;[57] while if he does not, it is by no means certain that the trial judge in a federal court may not, without violation of the clause, draw the jury's attention to the fact.[58] Neither does the Amendment preclude the admission in evidence against an accused of a confession made while in the custody of officers, if the confession was made freely, voluntarily, and without compulsion or inducement of any sort.[59] But in McNabb v. United States the Court[60] reversed a conviction in a federal court, based on a confession obtained by questioning the defendants for prolonged periods in the absence of friends and counsel and without their being brought before a commissioner or judicial officer, as required by law. Without purporting to decide the constitutional issue, Justice Frankfurter's opinion urged the duty of the Court, in supervising the conduct of the lower federal courts, to establish and maintain "civilized standards of procedure and evidence."[61] An individual who has acquired income by illicit means is not excused from making out an income tax return because he might thereby expose himself to a criminal prosecution by the United States. "He could not draw a conjurer's circle around the whole matter," said Justice Holmes, "by his own declaration that to write any word upon the government blank would bring him into danger of the law."[62] But a witness called to testify before a federal grand jury as to his relations with the Communist Party cannot, in view of existing legislation touching the subject, be compelled to answer.[63]he clause does not require the exclusion of the body of an accused as evidence of his identity;[64] but the introduction into evidence against one who was being prosecuted by a State for illegal possession of morphine of two capsules which he had swallowed and had then been forced by the police to disgorge, was held to violate due process of law.[65]

A bankrupt is not deprived of his constitutional right not to testify against himself by an order requiring him to surrender his books to a duly authorized receiver.[66] He may not object to the use of his books and papers as incriminating evidence against him while they are in the custody of the bankruptcy court;[67] nor may he condition their delivery by requiring a guaranty that they will not be used as incriminating evidence.[68] The filing of schedules by a bankrupt does not waive his right to refuse to answer questions pertaining to them when to do so may incriminate him.[69] A disclosure, not amounting to an actual admission of guilt or of incriminating facts, does not deprive him of the privilege of stopping short in his testimony whenever it may fairly tend to incriminate him.[70] The rule against self-incrimination may be invoked by a bankrupt (in the absence of any statute affording him complete immunity) when being examined concerning his estate.[71]

The privilege of witnesses, being a purely personal one, may not be claimed by an agent or officer of a corporation either in its behalf or in his own behalf as regards books and papers of the corporation;[72] and the same rule holds in the case of the custodian of the records of a labor union;[73] nor does the Communist Party enjoy any immunity as to its books and records.[74] Finally, this Amendment, in connection with the interdiction of the Fourth Amendment against unreasonable searches and seizures, protects an individual from the compulsory production of private papers which would incriminate him.[75] The scope of this latter privilege was, however, greatly narrowed by the decision in Shapiro v. United States.[76] There, by a five-to-four majority, the Court held that the privilege against self incrimination does not extend to books and records which an individual is required to keep to evidence his compliance with lawful regulations. A conviction for violation of OPA regulations was affirmed, as against the contention that the prosecution was barred because the accused had been compelled over claim of constitutional immunity to produce records he was required to keep under applicable OPA orders. After construing the statutory immunity as inapplicable to the case, Chief Justice Vinson disposed of the constitutional objections by asserting that "the privilege which exists as to private papers cannot be maintained in relation to 'records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation and the enforcement of restrictions validly established.'"[77]

Due Process of Law

SOURCE AND EVOLUTION OF THE MEANING OF THE TERM

The phrase "due process of law" comes from chapter 3 of 28 Edw. III (1355), which reads: "No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law." This statute, in turn, harks back to the famous chapter 29 of Magna Carta (issue of 1225), where the King promises that "no free man (nullus liber homo) shall be taken or imprisoned or deprived of his freehold or his liberties or free customs, or outlawed or exiled, or in any manner destroyed, nor shall we come upon him or send against him, except by a legal judgment of his peers or by the law of the land (per legem terrae)." Coke in Part II of his Institutes, which was the source from which the founders of the American Constitutional System derived their understanding of the matter, equates the term "by law of the land" with "by due process of law," which he in turn defines as "by due process of the common law," that is "by the indictment or presentment of good and lawful men * * * or by writ original of the Common Law."[78] The significance of both terms was therefore purely procedural; the term "writ original of the common law" referring to the writs on which civil actions were brought into the King's courts; and this is the significance they clearly have in the State constitutions. In the earlier of such instruments the term "law of the land" was the form preferred, but following the adoption of Amendment V "due process of law" became the vogue with constitution draftsmen. Some State constitutions even today employ both terms. Whichever phraseology is used always occurs in close association with other safeguards of accused persons, just as does the clause here under discussion in Amendment V. As a limitation, therefore, on legislative power the due process clause originally operated simply to place certain procedures, and especially the grand jury-petit jury process, beyond its reach, but this did not remain its sole importance or its principal importance.[79]

Today the due process clause in Amendment V, in Amendment XIV, and in the State constitutions is important chiefly, not as consecrating certain procedures, but as limiting the substantive content of legislation. Thus one of the grounds on which Chief Justice Taney, in his opinion in the Dred Scott Case, stigmatized the Missouri Compromise as unconstitutional was that an act of Congress which deprived "a citizen of his liberty or property merely because he came himself or brought his property into a particular territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law";[80] and sixty-six years later the Court held the District of Columbia Minimum Wage Act for women and minors to be void under the due process clause of Amendment V, not on account of any objection to the methods by which it was to be enforced but because of the content of the act--its substantive requirements.[81] And it is because of this extension of the term "due process of law" beyond the procedural field that the Court has been asked to pass upon literally hundreds of State enactments since about 1890 on the representation that they invaded the "liberty" or property rights of certain persons "unreasonably." In short, this development of the meaning of "due process of law" came in time to furnish one of the principal bases of judicial review, and indeed it still remains such so far as State legislation is concerned. See pp. 971-974.

SCOPE OF GUARANTY

This clause is a restraint on Congress as well as on the executive and judicial powers of the National Government; it cannot be so construed as to leave Congress free to make any process it chooses "due process of law."[82] All persons within the territory of the United States are entitled to its protection, including corporations,[83] aliens,[84] and presumptively citizens seeking readmission to the United States.[85] It is effective in the District of Columbia[86] and in territories which are part of the United States,[87] but it does not apply of its own force to unincorporated territories.[88] Nor does it reach enemy alien belligerents tried by military tribunals outside the territorial jurisdiction of the United States.[89]

Procedural Due Process

GENERAL

The words "due process of law" do not necessarily imply a proceeding in a court of justice,[90] or a plenary suit and trial by jury in every case where personal or property rights are involved. "In all cases, that kind of procedure is due process of law which is suitable and proper to the nature of the case, and sanctioned by the established customs and usages of the courts."[91] Proceedings for contempt of court[92] or to disbar an attorney[93] may be determined by a court without a jury trial. For persons in the military or naval services of the United States,[94] trial by military tribunals is due process. This principle extends to persons who commit offenses while undergoing punishment inflicted by court martial; as military prisoners they are still subject to military law.[95]

CRIMINAL PROSECUTIONS

The due process clause supplements the specific procedural guaranties enumerated in the Sixth Amendment and in preceding clauses of the Fifth Amendment for the protection of persons accused of crime. The Court has relied upon this provision in holding that an accused shall plead, or be ordered to plead, or a plea of not guilty be entered for him before his trial proceeds;[96] and in ruling that if the accused is in custody he must be personally present at every stage of the trial where his substantial rights may be affected by the proceedings against him.[97] It is not within the power of the accused or his attorney to waive such right. Inasmuch as proceedings for criminal contempt do not constitute a criminal prosecution, it is immaterial if proceedings are held in the absence of the defendant; the requirement of due process of law is satisfied by suitable notice and opportunity to be heard.[98]

NOTICE AND HEARING

Due process of law signifies a right to be heard. A decree pro confesso entered against a defendant after striking his answer from the files for contempt of court is void.[99] A man may, however, consent to be bound by a judgment in a case in which he has no right to participate.[100] Accordingly, due process of law was held not to be denied to a surety on an undertaking for the release of attached property when the undertaking required the parties to submit to the jurisdiction of the court and to agree to abide by the judgment in relation to the property attached.[101] Where, in a suit for specific performance of a contract, evidence admitted without objection at the trial established all the facts necessary for application of the formula specified by the contract, the appellate court which rejected the trial court's interpretation of the contract did not infringe the right to a hearing by entering judgment without remanding the case for a new trial.[102] After a State court, in proceedings designed inter alia to invalidate certain releases, rendered judgment without a special finding on the exact point, a federal court did not deny due process in a subsequent proceeding by treating such judgment as conclusive on the validity of the releases.[103] Since proceedings in bankruptcy are in the nature of proceedings in rem, personal notice to creditors is not required; creditors are bound by the proceedings in distribution on notice by publication and mail.[104] Where a statute providing for a public improvement levied an assessment against abutting property it was held to be "conclusive alike of the question of the necessity of the work and of the benefits as against abutting property."[105] Notice to the property owner is not necessary to sustain the assessment. On the other hand, when the legislature submits these questions to a commission or other officers the inquiry becomes judicial and the property owner is entitled to notice or an opportunity to be heard. Notice by publication is sufficient.[106]

EVIDENCE AND PRESUMPTION IN JUDICIAL PROCEEDINGS

Error in the admission of evidence or the entry of an erroneous judgment after a full hearing does not constitute a denial of due process.[107] A statute authorizing cancellation of naturalization certificates for fraud and providing that the taking up of permanent residence abroad within five years after naturalization shall be prima facie evidence of lack of intention to become a permanent resident of the United States at the time of applying for citizenship was found not to be so unreasonable as to deny due process of law.[108] Likewise, it was held reasonable for Congress to enact that a defendant who was discovered to be in possession of opium should be required to assume the burden of proving that he had not obtained it through illegal importation.[109] But a presumption that a firearm or ammunition in the possession of a person convicted of a crime of violence was transported or received in violation of law was held invalid because there was no rational connections between the facts proved and that presumed.[110]

ADMINISTRATIVE PROCEEDINGS

With respect to action taken by administrative agencies the Court has held that the demands of due process do not require a hearing at the initial stage, or at any particular point in the proceeding so long as a hearing is held before the final order becomes effective.[111] In Bowles v. Willingham,[112] it sustained orders fixing maximum rents issued without a hearing at any stage, saying "* * * where Congress has provided for judicial review after the regulations or orders have been made effective it has all that due process under the war emergency requires."[113] But where, after consideration of charges brought against an employer by a complaining union, the National Labor Relations Board undertook to void an agreement between an employer and another independent union, the latter was entitled to notice and an opportunity to participate in the proceedings.[114] Although a taxpayer must be afforded a fair opportunity for hearing in connection with the collection of taxes,[115] collection by distraint of personal property is lawful if the taxpayer is allowed a hearing thereafter.[116]

"A FAIR HEARING"

When the Constitution requires a hearing it requires a fair one, held before a tribunal which at least meets currently prevailing standards of impartiality.[117] An opportunity must be given not only to present evidence, but also to know the claims of the opposing party and to meet them. Those who are brought into contest with the Government in a quasi-judicial proceeding aimed at control of their activities are entitled to be fairly advised of what the Government proposes and to be heard upon the proposal before the final command is issued.[118] But a variance between the charges and findings will not invalidate administrative proceedings where the record shows that at no time during the hearing was there any misunderstanding as to the basis of the complaint.[119] The mere admission of evidence which would be inadmissible in judicial proceedings does not vitiate the order of an administrative agency.[120] A provision that such a body shall not be controlled by rules of evidence does not, however, justify orders without a foundation in evidence having rational probative force. Mere uncorroborated hearsay does not constitute the substantial evidence requisite to support the findings of the agency.[121] While the Court has recognized that in some circumstances a "fair hearing" implies a right to oral argument,[122] it refuses to lay down a general rule that would cover all cases.[123] It says: "Certainly the Constitution does not require oral argument in all cases where only insubstantial or frivolous questions of law, or indeed even substantial ones, are raised. Equally certainly it has left wide discretion to Congress in creating the procedures to be followed in both administrative and judicial proceedings, as well as in their conjunction."[124]

JUDICIAL REVIEW

To the extent that constitutional rights are involved, due process of law imports a judicial review of the action of administrative or executive officers. This proposition is undisputed so far as questions of law are concerned, but the extent to which the courts should and will go in reviewing determinations of fact has been a highly controversial issue. In St. Joseph Stock Yards Co. v. United States,[125] the Supreme Court held that upon review of an order of the Secretary of Agriculture establishing maximum rates for services rendered by a stock yard company, due process required that the Court exercise its independent judgment upon the facts to determine whether the rates were confiscatory.[126] Subsequent cases sustaining rate orders of the Federal Power Commission have not dealt explicitly with this point.[127] The Court has said simply that a person assailing such an order "carries the heavy burden of making a convincing showing that it is invalid because it is unjust and unreasonable in its consequences."[128]

There has been a division of opinion in the Supreme Court as to what extent, if at all, the proceedings before military tribunals should be reviewed by the courts for the purpose of determining compliance with the due process clause. In In re Yamashita[129] the majority denied a petition for certiorari and petitions for writs of habeas corpus to review the conviction of a Japanese war criminal by a military commission sitting in the Philippine Islands. It held that since the military commission, in admitting evidence to which objection was made, had not violated any act of Congress, a treaty or a military command defining its authority, its ruling on evidence and on the mode of conducting the proceedings were not reviewable by the courts. Without dissent, the Supreme Court in Hiatt v. Brown[130] reversed the judgment of a lower court which had discharged a prisoner serving a sentence imposed by a court-martial, because of errors whereby the respondent had been deprived of due process of law. The Supreme Court held that the Court below had erred in extending its review, for the purpose of determining compliance with the due process clause, to such matters as the propositions of law set forth in the staff judge advocate's report, the sufficiency of the evidence to sustain respondent's conviction, the adequacy of the pre-trial investigation, and the competence of the law member and defense counsel. In summary, Justice Clark wrote: "In this case the court-martial had jurisdiction of the person accused and the offense charged, and acted within its lawful powers. The correction of any errors it may have committed is for the military authorities which are alone authorized to review its decision."[131] Again in Johnson v. Eisentrager[132] the Supreme Court overruled a lower court decision, which, in reliance upon the dissenting opinion in the Yamashita Case, had held that the due process clause required that the legality of the conviction of enemy alien belligerents by military tribunals should be tested by the writ of habeas corpus.

ALIENS

To aliens who have never been naturalized or acquired any domicile or residence in the United States, the decision of an executive or administrative officer, acting within powers expressly conferred by Congress, as to whether or not they shall be permitted to enter the country, is due process of law.[133] The complete authority of Congress in the matter of admission of aliens justifies delegation of power to executive officers to enforce the exclusion of aliens afflicted with contagious diseases by imposing upon the owner of the vessel bringing any such alien into the country, a money penalty, collectible before and as a condition of the grant of clearance.[134] If the person seeking admission claims American citizenship, the decision of the Secretary of Labor may be made final, but it must be made after a fair hearing, however summary, and must find adequate support in the evidence. A decision based upon a record from which relevant and probative evidence has been omitted is not a fair hearing.[135] Where the statute made the decision of an immigration inspector final unless an appeal was taken to the Secretary of the Treasury, a person who failed to take such an appeal did not, by an allegation of citizenship, acquire a right to a judicial hearing on habeas corpus.[136]

DEPORTATION

Deportation proceedings are not criminal prosecutions within the meaning of the Bill of Rights. The authority to deport is drawn from the power of Congress to regulate the entrance of aliens and impose conditions upon the performance of which their continued liberty to reside within the United States may be made to depend. Findings of fact reached by executive officers after a fair, though summary deportation hearing may be made conclusive.[137] In Wong Yang Sung v. McGrath,[138] however, the Court intimated that a hearing before a tribunal which did not meet the standards of impartiality embodied in the Administrative Procedure Act[139] might not satisfy the requirements of due process of law. To avoid such constitutional doubts, the Court construed the law to disqualify immigration inspectors as presiding officers in deportation proceedings. Except in time of war, deportation without a fair hearing or on charges unsupported by any evidence is a denial of due process which may be corrected on habeas corpus.[140] In contrast with the decision in United States v. Ju Toy[141] that a person seeking entrance to the United States was not entitled to a judicial hearing on his claim of citizenship, a person arrested and held for deportation is entitled to a day in court if he denies that he is an alien.[142] A closely divided Court has ruled that in time of war the deportation of an enemy alien may be ordered summarily by executive action; due process of law does not require the courts to determine the sufficiency of any hearing which is gratuitously afforded to the alien.[143]

Substantive Due Process

DISCRIMINATION

Almost all legislation involves some degree of classification whereby its operation is directed to particular categories of persons, things, or events; and it is partly in recognition of this fact that Amendment Fourteen forbids the States to deny to persons within their jurisdiction "equal protection of the laws." But this restriction does not rule out classifications that are "reasonable"; and the due process of law clause of Amendment Five is at least as tolerant of legislative classifications, which would have to be arbitrarily and unreasonably discriminatory to incur its condemnation.[144] In fact, it does not appear that the Court has up to this time ever held an act of Congress unconstitutional on this ground. Thus it has sustained a law imposing greater punishment for an offense involving rights and property of the United States than for a like offense involving the rights of property of a private person.[145] Likewise, a requirement that improved property in the District of Columbia be connected with the city sewage system, with different sanctions for residents and nonresidents was upheld over the argument that the classification was arbitrary.[146] The allowance to injured seamen of a choice between several measures of redress without any corresponding right in their employer was held not to deny due process of law.[147] Differences of treatment accorded marketing cooperatives in milk marketing orders issued by the Secretary of Agriculture[148] and the selection of a limited number of tobacco markets for compulsory grading of tobacco[149] have also been sustained. The priority of a federal tax lien against property passing at death, may, without offending the due process clause, be different from that which attaches to property transferred inter vivos in contemplation of death.[150]

There are indications, however, that the Court may be prepared to go further than it has in the past in condemning discrimination as a denial of due process of law. Relying upon public policy and its supervisory authority over federal courts, it has reached results similar to those arrived at under the equal protection clause of the Fourteenth Amendment, in refusing to enforce restrictive covenants in the District of Columbia,[151] and in reversing a judgment of a Federal District Court because of the exclusion of day laborers from the jury panel;[152] and in Steele v. Louisville & N.R. Co.[153] the Railway Labor Act was construed to require a collective bargaining representative to act for the benefit of all members of the craft without discrimination on account of race. Chief Justice Stone indicated that any other construction would raise grave constitutional doubts,[154] while in a concurring opinion, Justice Murphy asserted unequivocally that the act would be inconsistent with the Fifth Amendment if the bargaining agent, acting under color of federal authority, were permitted to discriminate against any of the persons he was authorized to represent.[155]

DEPRIVATION OF LIBERTY

In consequence of the explicit assurances of individual liberty contained in other articles of the Bill of Rights, the clause in the Fifth Amendment forbidding the deprivation of "liberty" without due process of law has been invoked chiefly in resistance to measures alleged to abridge liberty of contract. The two leading cases which held legislation unconstitutional on this ground have, however, both been overturned in recent years. Adair v. United States,[156] which invalidated an act of Congress prohibiting any interstate carrier from threatening an employee with loss of employment if he joined a labor union, was overruled in substance by Phelps Dodge Corp. v. National Labor Relations Board.[157] Adkins v. Children's Hospital,[158] in which a minimum wage law for the District of Columbia was found to be an unwarranted abridgment of the liberty of contract, was expressly repudiated by West Coast Hotel Co. v. Parrish.[159] Numerous other statutes--antitrust laws,[160] acts limiting hours of labor,[161] prohibiting advance of wages to seamen,[162] making carriers liable for injuries suffered by employees irrespective of previous contractual arrangements,[163] requiring employers to bargain collectively with employees[164] and fixing prices of commodities[165] have been sustained against attack on this ground.

Interpreting statutes which made the guaranty of due process of law applicable to Hawaii and the Philippine Islands, the Court enjoined enforcement of an act of the Territory of Hawaii which prohibited maintenance of foreign-language schools except upon written permit and payment of a fee based upon attendance,[166] and held unconstitutional a Philippine statute which prohibited Chinese merchants from keeping any accounts in Chinese.[167]

DEPRIVATION OF PROPERTY

Retroactive Legislation Sustained

Federal regulation of future action, based upon rights previously acquired by the person regulated, is not prohibited by the Constitution. So long as the Constitution authorizes the subsequently enacted legislation, the fact that its provisions limit or interfere with previously acquired rights does not condemn it. Accordingly, rent regulations were sustained as applied to prevent execution of a judgment of eviction rendered by a State court before the enabling legislation was passed.[168] An order by an Area Rent Director reducing an unapproved rental and requiring the landlord to refund the excess previously collected, was held, with one dissenting vote, not to be the type of retroactivity which is condemned by law.[169] The retroactive effect of a new principle announced by a decision of an administrative tribunal has been likened to the effect of judicial decisions in cases of first impression. In Securities Comm'n. v. Chenery Corp.,[170] the Supreme Court sustained a decision of the Commission which refused to approve a plan of reorganization for a public utility holding company so long as the preferred stock purchased by the management was treated on a parity with other preferred stock even though the purchase of such stock, when made, did not conflict with any law or rule of the Commission. In the exercise of its comprehensive powers over revenue, finance and currency, Congress may make Treasury notes legal tender in payment of debts previously contracted[171] and may invalidate provisions in private contracts calling for payment in gold coin.[172] An award of additional compensation under the Longshoremen's and Harbor Workers' Compensation Act,[173] made pursuant to a private act of Congress passed after expiration of the period for review of the original award, directing the Commission to review the case and issue a new order, was held valid against the employer and insurer.[174] The application of a statute providing for tobacco marketing quotas, to a crop planted prior to its enactment, was held not to deprive the producers of property without due process of law since it operated, not upon production, but upon the marketing of the product after the act was passed.[175]

The validation by statute of a prior mortgage of personal property invalid because improperly recorded, did not deny due process of law to a judgment creditor seeking to levy an attachment on the mortgaged property.[176] Nor was property taken without due process of law by a statute of New Mexico territory, permitting disseisin of real property to ripen into title after ten years.[177] An order of the military governor of Porto Rico reducing the period during which the possession of real estate must continue, to permit an ex parte conversion of an entry of possessory title into record ownership was construed to apply only where there still remained a reasonable opportunity for the true owners to contest the claim. The Court said that any other construction would permit a taking of property without due process of law.[178]

Rights created by statute are subject to qualification by Congress; benefits conferred gratuitously may be redistributed or withdrawn at any time.[179] Where Congress provided, in granting lands to a railroad, that such land could be resold only to actual settlers, at a price not exceeding $2.50 per acre, it could constitutionally, for breach of performance, resume title to the lands while assuring the railroad the equivalent of its interest.[180] An act making an appropriation for a private claim which restricted the attorney's fees payable therefrom to twenty per cent was valid although inconsistent with a prior contract with the claimant allowing a larger fee.[181] Statutory restrictions on compensation for services in connection with veterans' pensions or insurance have been upheld.[182] An increase in the penalty for production of wheat in excess of quota was not invalid as applied retroactively to wheat already planted, where Congress concurrently authorized a substantial increase in the amount of the loan which might be made to cooperating farmers upon stored "farm marketing excess wheat."[183]

Retroactive Legislation Disallowed

The due process clause has been successfully invoked to defeat retroactive invasion or destruction of property rights in a few cases. A revocation by the Secretary of the Interior of previous approval of plats and papers showing that a railroad was entitled to land under a grant was held void as an attempt to deprive the company of its property without due process of law.[184] The exception of the period of federal control from the time limit set by law upon claims against carriers for damages caused by misrouting of goods, was read as prospective only because the limitation was an integral part of the liability, not merely a matter of remedy, and would violate the Fifth Amendment if retroactive.[185] Rights against the United States arising out of contract are protected by the Fifth Amendment; hence a statute abrogating contracts of war risk insurance was held unconstitutional as applied to outstanding policies.[186]

Bankruptcy Legislation

The bankruptcy power of Congress is subject to the Fifth Amendment. A statute which authorized a court to stay proceedings for the foreclosure of a mortgage for five years, the debtor to remain in possession at a reasonable rental, with the option of purchasing the property at its appraised value at the end of the stay, was held unconstitutional because it deprived the creditor of substantial property rights acquired prior to the passage of the act.[187] A modified law, under which the stay was subject to termination by the Court, and which continued the right of the creditor to have the property sold to pay the debt was sustained.[188] Without violation of the due process clause, the sale of collateral under the terms of a contract may be enjoined, if such sale would hinder the preparation or consummation of a proposed railroad reorganization, provided the injunction does no more than delay the enforcement of the contract.[189] A provision that claims resulting from rejection of an unexpired lease should be treated as on a parity with provable debts, but limited to an amount equal to three years rent, was held not to amount to a taking of property without due process of law, since it provided a new and more certain remedy for a limited amount, in lieu of an existing remedy inefficient and uncertain in result.[190] A right of redemption allowed by State law upon foreclosure of a mortgage was unavailing to defeat a plan for reorganization of a debt or corporation where the trial court found that the claims of junior lienholders had no value.[191]

Right To Sue the Government

A right to sue the Government on a contract is a privilege, not a property right protected by the Constitution.[192] The right to sue for recovery of taxes paid may be conditioned upon an appeal to the Commissioner and his refusal to refund.[193] There was no denial of due process when Congress took away the right to sue for recovery of taxes, where the claim for recovery was without substantial equity, having arisen from the mistake of administrative officials in allowing the statute of limitations to run before collecting the tax.[194] The denial to taxpayers of the right to sue for refund of processing and floor taxes collected under a law subsequently held unconstitutional, and the substitution of a new administrative procedure for the recovery of such sums, was held valid.[195] Congress may cut off the right to recover taxes illegally collected by ratifying the imposition and collection thereof, where it could lawfully have authorized such exactions prior to their collection.[196]

CONGRESSIONAL POLICE MEASURES

Numerous regulations of a police nature, imposed under powers specifically granted to the Federal Government, have been sustained over objections based on the due process clause. Congress may require the owner of a vessel on which alien seamen suffering from specified diseases are brought into the country to bear the expense of caring for such persons.[197] It may prohibit the transportation in interstate commerce of filled milk,[198] or the importation of convict made goods into any State where their receipt, possession or sale is a violation of local law.[199] It may require employers to bargain collectively with representatives of their employees chosen in a manner prescribed by statute, to reinstate employees discharged in violation of law,[200] and to permit use of a company owned hall for union meetings.[201] It may enforce continuance of the relationship of employer and employee in the event of a strike as a consequence of, or in connection with, a current labor dispute.[202] The fact that property subject to rent control in time of war suffers a decrease in value does not make such restriction offensive to the due process clause.[203]

The Postal Service

In its complete control over the postal service Congress may exclude lottery advertisements or any other matter objectionable on grounds of public policy.[204] An order requiring return to the senders of all letters addressed to a concern engaged in a fraudulent enterprise, or to its officers as such was held reasonable and valid because an order limited to matter obviously connected with the enterprise would be a practical nullity.[205] Such an order may be issued by the Postmaster General "upon evidence satisfactory to him,"[206] but if issued under a "mistake of law" as to what facts may properly be deemed to constitute fraud, it will be enjoined by the courts.[207] A hearing upon revocation of second-class mailing privileges by an assistant Postmaster General upon notice, at which relator was heard and evidence received was due process.[208]

Congressional Regulation of Public Utilities

Inasmuch as Congress, in giving federal agencies jurisdiction over various public utilities, usually has prescribed standards substantially identical with those by which the Supreme Court has tested the validity of State action, the review of their orders seldom has turned on constitutional issues. In two cases, however, maximum rates for stockyard companies prescribed by the Secretary of Agriculture were sustained only after detailed consideration of numerous items excluded from the rate base or from operating expenses, apparently on the assumption that error with respect to any such item would render the rates confiscatory and void.[209] A few years later, in Federal Power Commission v. Hope Natural Gas Co.,[210] the Court adopted an entirely different approach. It took the position that the validity of the Commission's order depended upon whether the impact or total effect of the order is just and reasonable, rather than upon the method of computing the rate base. Rates which enable a company to operate successfully, to maintain its financial integrity, to attract capital, and to compensate its investors for the risks assumed cannot be condemned as unjust and unreasonable even though they might produce only a meager return in a rate base computed by the "present fair value" method.[211]

Orders prescribing the form and contents of accounts kept by public utility companies,[212] and statutes requiring a private carrier to furnish information for valuing its property to the Interstate Commerce Commission[213] have been sustained against the objection that they were arbitrary and invalid. An order of the Secretary of Commerce directed to a single common carrier by water requiring it to file a summary of its books and records pertaining to its rates was held not to violate the Fifth Amendment.[214]

Congressional Regulation of Railroads

Legislation or administrative orders pertaining to railroads have been challenged repeatedly under the due process clause but seldom with success. Orders of the Interstate Commerce Commission establishing through routes and joint rates have been sustained,[215] as has its division of joint rates to give a weaker group of carriers a greater share of such rates where the proportion allotted to the stronger group was adequate to avoid confiscation.[216] The recapture of one half of the earnings of railroads in excess of a fair net operating income, such recaptured earnings to be available as a revolving fund for loans to weaker roads, was held valid on the ground that any carrier earning an excess held it as trustee.[217] An order enjoining certain steam railroads from discriminating against an electric railroad by denying it reciprocal switching privileges did not violate the Fifth Amendment even though its practical effect was to admit the electric road to a part of the business being adequately handled by the steam roads.[218] Similarly, the fact that a rule concerning the allotment of coal cars operated to restrict the use of private cars did not amount to a taking of property.[219] Railroad companies were not denied due process of law by a statute forbidding them to transport in interstate commerce commodities which have been manufactured, mined or produced by them.[220] An order approving a lease of one railroad by another, upon condition that displaced employees of the lessor should receive partial compensation for the loss suffered by reason of the lease[221] is consonant with due process of law. A law prohibiting the issuance of free passes was held constitutional even as applied to abolish rights created by a prior agreement whereby the carrier bound itself to issue such passes annually for life, in settlement of a claim for personal injuries.[222]

Occasionally, however, regulatory action has been held invalid under the due process clause. An order issued by the Interstate Commerce Commission relieving short line railroads from the obligation to pay the usual fixed sum per day rental for cars used on foreign roads, for a space of two days was arbitrary and invalid.[223] A retirement act which made eligible for pensions all persons who had been in the service of any railroad within one year prior to the adoption of the law, counted past unconnected service of an employee toward the requirement for a pension without any contribution therefor, and treated all carriers as a single employer and pooled their assets, without regard to their individual obligations, was held unconstitutional.[224]

TAXATION

In laying taxes, the Federal Government is less narrowly restricted by the Fifth Amendment than are the States by the Fourteenth. It may tax property belonging to its citizens, even if such property is never situated within the jurisdiction of the United States,[225] or the income of a citizen resident abroad, which is derived from property located at his residence.[226] The difference is explained by the fact that the protection of the Federal Government follows the citizen wherever he goes, whereas the benefits of State government accrue only to persons and property within the State's borders. The Supreme Court has said that, in the absence of an equal protection clause, "a claim of unreasonable classification or inequality in the incidence or application of a tax raises no question under the Fifth Amendment, * * *"[227] It has sustained, over charges of unfair differentiation between persons, a graduated income tax;[228] a higher tax on oleomargarine than on butter;[229] an excise tax on "puts" but not on "calls";[230] a tax on the income of businesses operated by corporations but not on similar enterprises carried on by individuals;[231] an income tax on foreign corporations, based on their income from sources within the United States, while domestic corporations are taxed on income from all sources;[232] a tax on foreign-built but not upon domestic yachts;[233] a tax on employers of eight or more persons, with exemptions for agricultural labor and domestic service;[234] a gift tax law embodying a plan of graduations and exemptions under which donors of the same amount might be liable for different sums;[235] an Alaska statute imposing license taxes only on nonresident fisherman;[236] an act which taxed the manufacture of oil and fertilizer from herring at a higher rate than similar processing of other fish or fish offal;[237] an excess profits tax which defined "invested capital" with reference to the original cost of the property rather than to its present value;[238] and an undistributed profits tax in the computation of which special credits were allowed to certain taxpayers;[239] an estate tax upon the estate of a deceased spouse in respect of the moiety of the surviving spouse where the effect of the dissolution of the community is to enhance the value of the survivor's moiety.[240]

Retroactive Taxes

A gift tax cannot be imposed on gifts consummated before the taxing statute was adopted.[241] A conclusive presumption that gifts made within two years of death were made in contemplation of death was condemned as arbitrary and capricious even with respect to subsequent transfers.[242] A tax may be made retroactive for a short period to include profits made while it was in process of enactment. A special income tax on profits realized by the sale of silver, retroactive for 35 days, which was approximately the period during which the silver purchase bill was before Congress, was held valid.[243] An income tax law, made retroactive to the beginning of the calendar year in which it was adopted, was found constitutional as applied to the gain from the sale, shortly before its enactment, of property received as a gift during the year.[244] Retroactive assessment of penalties for fraud or negligence,[245] or of an additional tax on the income of a corporation used to avoid a surtax on its shareholders,[246] does not deprive the taxpayer of property without due process of law.

An additional excise tax imposed upon property still held for sale, after one excise tax had been paid by a previous owner, does not violate the due process clause.[247] A transfer tax measured in part by the value of property held jointly by a husband and wife, including that which comes to the joint tenancy as a gift from the decedent spouse, is valid,[248] as is the inclusion in the gross income of the settler of income accruing to a revocable trust during any period when he had power to revoke or modify it.[249]

GOVERNANCE OF THE INDIANS

The power of Congress in virtue of its wardship over Indians extends to a restriction on alienation of Indian lands even after a particular Indian has been granted citizenship.[250] But rights of tax exemption accruing to Indian allotments under an act of Congress, which have become vested, are protected by this amendment against repeal.[251] One who was duly enrolled as a member of the Chickasaw Nation acquired valuable rights which the Secretary of the Interior could not strike down without notice and hearing.[252] An act authorizing suit against allottees of Indian property as a class, for the value of services in securing the allotments, which provided for notice upon the governor of the tribe and designated the Attorney General to defend the suit, was consonant with due process.[253] Where the statute which created a tribal council for the Osage Indians, to be elected by the tribe, at the same time vested the Secretary of the Interior with discretion to remove a member without notice or hearing, there was no denial of due process of law since the right to elect was united in its creation with the right of removal.[254] A statute of the Choctaw Nation providing for the forfeiture and sale of buildings erected on their lands, was held to be unenforceable without giving the builder an opportunity to be heard.[255]

The National Eminent Domain Power

SCOPE OF POWER

Being an incident of sovereignty, the right of eminent domain requires no constitutional recognition. The requirement of just compensation is merely a limitation upon the exercise of a preexisting power[256] to which all private property is subject.[257] This prerogative of the National Government can neither be enlarged nor diminished by a State.[258] Whenever lands in a State are needed for a public purpose, Congress may authorize that they be taken, either by proceedings in the courts of the State, with its consent, or by proceedings in the courts of the United States, with or without any consent or concurrent act of the State.[259] The facts that land included in a federal reservoir project is owned by a State, or that its taking may impair the tax revenue of the State, that the reservoir will obliterate part of the State's boundary and interfere with the State's own project for water development and conservation, constitute no barrier to the condemnation of the land by the United States under its superior power of eminent domain.[260]

ALIEN PROPERTY

There is no constitutional prohibition against confiscation of enemy property.[261] Congress may authorize seizure and sequestration through executive channels of property believed to be enemy owned if adequate provision is made for return in case of mistake.[262] An alien friend is entitled to the protection of the Fifth Amendment against a taking of property for public use without just compensation.[263] The fact that property of our citizens may be confiscated in that alien's country does not subject the alien friend's property to confiscation here.[264]

PUBLIC USE

The extent to which private property shall be taken for public use rests wholly in the legislative discretion.[265] Whether the courts have power to review a determination of the lawmakers that a particular use is a public use was left in doubt by the decision in United States ex rel. T.V.A. v. Welch.[266] Speaking for the majority, Justice Black declared: "We think that it is the function of Congress to decide what type of taking is for a public use * * *"[267] In a concurring opinion in which Chief Justice Stone joined, Justice Reed took exception to that portion of the opinion, insisting that whether or not a taking is for a public purpose is a judicial question.[268] Justice Frankfurter interpreted the controlling opinion as recognizing the doctrine that "whether a taking is for a public purpose is not a question beyond judicial competence."[269] All agreed that the condemnation of property which had been isolated by the flooding of a highway, to avoid the expense of constructing a new highway, was a lawful public purpose. Previous cases have held that the preservation for memorial purposes of the line of battle at Gettysburg was a public use for which private property could be taken by condemnation;[270] that where establishment of a reservoir involved flooding part of a town, the United States might take nearby property for a new townsite and the fact that there might be some surplus lots to be sold did not deprive the transaction of its character as taking for public use.[271]

RIGHTS FOR WHICH COMPENSATION MUST BE MADE

The franchise of a private corporation is property which cannot be taken for public use without compensation. Upon condemnation of a lock and dam belonging to a navigation company, the Government was required to pay for the franchise to take tolls as well as for the tangible property.[272] Letters patent for a new invention or discovery in the arts confer upon the patentee an exclusive property for which compensation must be made when the Government uses the patent.[273] The frustration of a private contract by the requisitioning of the entire output of a steel manufacturer is not a taking for which compensation is required.[274] Where, however, the Government requisitioned from a power company all of the electric power which could be produced by use of the water diverted through its intake canal, thereby cutting off the supply of a lessee which had a right, amounting to a corporeal hereditament under State law, to draw a portion of that water, the latter was awarded compensation for the rights taken.[275] An order requiring the removal or alteration of a bridge over a navigable river, to abate the obstruction to navigation, is not a taking of property within the meaning of the Constitution.[276] The exclusion, from the amount to be paid to the owners of condemned property, of the value of improvements made by the Government under a lease, was held constitutional.[277] An undertaking to reduce the menace from flood damages which was inevitable but for the Government's work does not constitute the Government a taker of all lands not fully protected; the Government does not owe compensation under the Fifth Amendment to every landowner whom it fails to or cannot protect.[278]

When Property is Taken

According to the Legal Tender Cases,[279] the requirement of just compensation for property taken for public use refers only to direct appropriation and not to consequential injuries resulting from the exercise of lawful power. This formula leaves open the question as to whether injuries are "consequential" merely. Recent doctrine embodies a more definite test. In United States v. Dickinson,[280] the Supreme Court held that property is "taken" within the meaning of the Constitution "when inroads are made upon the owner's use of it to an extent that, as between private parties, a servitude has been acquired either by an agreement or in course of time."[281] Where the noise and glaring lights of planes landing at or leaving an airport leased to the United States, flying below the navigable air space as defined by Congress, interfere with the normal use of a neighboring farm as a chicken farm, there is such a taking as to give the owner a constitutional right to compensation.[282] That the Government had imposed a servitude on land adjoining its fort so as to constitute a taking within the law of eminent domain may be found from the facts that it had repeatedly fired the guns of the fort across the land and had established a fire control service there.[283] A corporation chartered by Congress to construct a tunnel and operate railway trains therein was held liable for damages in the suit by an individual whose property was so injured by smoke and gas forced from the tunnel as to amount to a taking of private property.[284]

Navigable Waters

Riparian ownership is subject to the power of Congress to regulate commerce. When damage results consequentially from an improvement of a navigable river, it is not a taking of property, but merely the exercise of a servitude to which the property is always subject.[285] What constitutes a navigable river within the purview of the commerce clause often involves sharply disputed issues of fact and of law. In the leading case of The Daniel Ball[286] the Court laid down the rule that: "Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water."[287] In 1940, over the dissent of two Justices, the Court held that the phrase "natural and ordinary condition" refers to volume of water, the gradients and the regularity of the flow. It further held that in determining the navigable character of a river it is proper to consider "the feasibility of interstate use after reasonable improvements which might be made."[288] A few months later it decided unanimously that Congress may exercise the power of eminent domain in connection with the construction of a dam and reservoir on the nonnavigable stretches of a river in order to preserve or promote commerce on the navigable portions.[289]

The Government does not have to compensate a riparian owner for cutting off his access to navigable waters by changing the course of the stream in order to improve navigation.[290] Where submerged land under navigable waters of a bay are planted with oysters, the action of the Government in dredging a channel across the bay in such a way as to destroy the oyster bed is not a "taking" of property in the constitutional sense.[291] The determination by Congress that the whole flow of a stream should be devoted to navigation does not take any private property rights of a water power company which holds a revocable permit to erect dams and dykes for the purpose of controlling the current and using the power for commercial purposes.[292] The interest of a riparian owner in keeping the level of a navigable stream low enough to maintain a power head for his use was not one for which he was entitled to be compensated when the Government raised the level by erecting a dam to improve navigation.[293] Inasmuch as a riparian owner has no private property in the flow of the stream, a license to maintain a hydroelectric dam, may, without offending the Fifth Amendment, contain a provision giving the United States an option to acquire the property at a value assumed to be less than its fair value at the time of taking.[294]

Where the Government erects dams and other obstructions across a river, causing an overflow of water which renders the property affected unfit for agricultural use and deprives it of all value, there is taking of property for which the Government is under an implied contract to make just compensation.[295] The construction of locks and for "canalizing" a river, which cause recurrent overflows, impairing but not destroying the value of the land amounts to a partial taking of property within the meaning of the Fifth Amendment;--the fee remains in the owner, subject to an easement in the United States to overflow it as often as may necessarily result from the operation of the lock and dam for purposes of navigation.[296] Compensation has been awarded for the erosion of land by waters impounded by a Government dam,[297] and for the destruction of the agricultural value of land located on a nonnavigable tributary of the Mississippi River, which as a result of the continuous maintenance of the river's level at high water mark, was permanently invaded by the percolation of the waters, and its drainage obstructed.[298] When the construction of locks and dams raised the water in a nonnavigable creek to about one foot below the crest of an upper milldam, thus preventing the drop in the current necessary to run the mill, there was a taking of property in the constitutional sense.[299] A contrary conclusion was reached with respect to the destruction of property of the owner of a lake through the raising of the lake level as a consequence of an irrigation project, where the result to the lake owner's property could not have been foreseen.[300]

JUST COMPENSATION

If only a portion of a single tract is taken, the owner's compensation includes any element of value arising out of the relation of the part taken to the entire tract.[301] Thus, where the taking of a strip of land across a farm closed a private right of way, an allowance was properly made for value of the easement.[302] On the other hand, if the taking has in fact benefited the owner, the benefit may be set off against the value of the land condemned.[303] But there may not be taken into account any supposed benefit which the owner may receive in common with all from the public use to which the property is appropriated.[304] Where Congress condemned certain lands for park purposes, setting off resulting benefits against the value of property taken, and by subsequent act directed the erection of a fire-station house therein, it was held that property was not thereby taken without just compensation.[305] The Constitution does not require payment of consequential damages to other property of the owner consisting of separate tracts adjoining that affected by the taking.[306]

Just compensation means the full and perfect equivalent, in money, of the property taken.[307] The owner's loss, not the taker's gain is the measure of such compensation.[308] Where the property has a determinable market value, that is the normal measure of recovery.[309] Market value is "what a willing buyer would pay in cash to a willing seller."[310] It may reflect not only the use to which the property is presently devoted but also that to which it may be readily converted.[311] But the value of the property to the Government for its particular use is not a criterion.[312] In two recent cases the Court held that the owners of cured pork[313] and black pepper[314] which was requisitioned by the Government during the war could recover only the O.P.A. ceiling price for those commodities, despite findings of the Court of Claims that the replacement cost of the meat exceeded its ceiling price, and that the pepper had a "retention value" in excess of that price. By a five-to-four decision it ruled that the Government was not obliged to pay the market value of a tug where such value had been enhanced as a consequence of the Government's urgent war time needs.[315]

Consequential damages such as destruction of a business,[316] the expense of moving fixtures and personal property from the premises, or the loss of goodwill which inheres in the location of the land, are not recoverable when property is taken in fee.[317] But a different principle obtains where only a temporary occupancy is assumed. If a portion of a long term lease is taken, damage to fixtures is allowed in addition to the value of the occupancy, and the expenses of moving, storage charges, and the cost of preparing the space for occupancy by the Government are proper elements to be considered in determining the fair rental value of the premises for the period taken.[318] These elements are not taken into account in fixing compensation for condemnation of leaseholds for the remainder of their term.[319] In Kimball Laundry Co. v. United States,[320] the Court by a close division held that when the United States condemned a laundry plant for temporary occupancy, evidence should have been received concerning the diminution in the value of its business due to destruction of its trade routes, and compensation allowed for any demonstrable loss of going-concern value. In United States v. Pewee Coal Co.,[321] involving another temporary seizure by the government, a similarly divided Court sustained the Court of Claims in awarding the company compensation for losses attributable to increased wage payments by the government. Four Justices thought no such loss had been shown.

Interest

Ordinarily property is taken under a condemnation suit upon the payment of the money award by the condemner and no interest accrues.[322] If, however, the property is taken in fact before payment is made, just compensation includes an increment which, to avoid use of the term "interest," the Court has called "an amount sufficient to produce the full equivalent of that value paid contemporaneously with the taking."[323] If the owner and the Government enter into a contract which stipulates the purchase price for lands to be taken, with no provision for interest, the Fifth Amendment is inapplicable and the landowner cannot recover interest even though payment of the purchase price is delayed.[324] Where property of a citizen has been mistakenly seized by the Government, converted into money and invested, the owner is entitled, in recovering compensation, to an allowance for the use of his property.[325]

Enforcement of Right to Compensation

When a taking of private property has been ordered, the question of just compensation is judicial.[326] The compensation to be paid may be ascertained by any appropriate tribunal capable of estimating the value of the property. Whether the tribunal shall be created directly by Congress or one already established by the State shall be adopted for the occasion, is a matter of legislative discretion.[327] The estimate of just compensation is not required to be made by a jury, but may be entrusted to commissioners appointed by a court or by the executive, or to an inquest consisting of more or fewer men than an ordinary jury.[328] The federal courts may take jurisdiction of an action in ejectment by a citizen against officers of the Government, to recover property of which he has been deprived by force and which has been converted to the use of the Government without lawful authority and without just compensation.[329] Where property is taken by the United States in the exercise of the power of eminent domain, but without condemnation proceedings, the owner may, under the Tucker Act, bring suit for just compensation in the Court of Claims or in a district court sitting as a Court of Claims.[330]

The Fifth Amendment does not require that compensation shall actually be paid in advance of the taking[331] but the owner is entitled to reasonable, certain, and adequate provision for obtaining compensation before his occupancy is disturbed.[332] In time of war or immediate public danger private property may be impressed into public service without the consent of the owner, but such taking raises an implied promise on the part of the United States to reimburse the owner.[333] An objection that an act of Congress providing for condemnation of land for a public purpose limited the aggregate amount to be expended was rejected, since the limitation did not affect the right of property holders in the event of condemnation.[334]

Notes

[1] Ex parte Wilson, 114 U.S. 417 (1885).

[2] Ibid. 427.

[3] Mackin v. United States, 117 U.S. 348, 352 (1886).

[4] United States v. Moreland, 258 U.S. 433 (1922).

[5] Ex parte Wilson, 114 U.S. 417, 426 (1885).

[6] Wong Wing v. United States, 163 U.S. 228, 237 (1896).

[7] Ex parte Wilson, 114 U.S. 417 (1885).

[8] Mackin v. United States, 117 U.S. 348 (1886).

[9] Parkinson v. United States, 121 U.S. 281 (1887).

[10] United States v. DeWalt, 128 U.S. 393 (1888).

[11] Ex parte Wilson, 114 U.S. 417, 426 (1885).

[12] Duke v. United States, 301 U.S. 492 (1937).

[13] Ex parte Bain, 121 U.S. 1, 12 (1887).

[14] Breese v. United States, 226 U.S. 1 (1912).

[15] Johnson v. Sayre, 158 U.S. 109, 114 (1895).

[16] Ex parte Quirin, 317 U.S. 1, 43, 44 (1942).

[17] Ex parte Lange, 18 Wall. 103, 169 (1874).

[18] Ibid. 172, 173.

[19] Kepner v. United States, 195 U.S. 100 (1904). This case arose under the act of Congress of July 1, 1902 (32 Stat. 631) for the temporary civil government of the Philippine Islands. To the same effect are United States v. Sanges, 144 U.S. 310, 323 (1892), and United States v. Evans, 213 U.S. 297 (1909), both cases arising within the United States.

[20] United States v. Oppenheimer, 242 U.S. 85 (1916).

[21] United States v. Ball, 161 U.S. 622, 669 (1896).

[22] Ex parte Lange, 18 Wall. 163 (1874).

[23] Bozza v. United States, 330 U.S. 160 (1947).

[24] Wade v. Hunter, 336 U.S. 684, 689 (1949).

[25] United States v. Perez, 9 Wheat. 579 (1824); Logan v. United States, 144 U.S. 263, 298 (1892).

[26] Simmons v. United States, 142 U.S. 148 (1891); Thompson v. United States, 155 U.S. 271 (1894).

[27] Lovato v. New Mexico, 242 U.S. 199 (1916).

[28] Wade v. Hunter, 336 U.S. 684 (1949).

[29] Collins v. Loisel, 262 U.S. 426 (1923).

[30] Taylor v. United States, 207 U.S. 120, 127 (1907).

[31] Bassing v. Cady, 208 U.S. 386, 391-392 (1908).

[32] United States v. Wilson, 7 Pet. 150, 160 (1883).

[33] Burton v. United States, 202 U.S. 344 (1906); United States v. Randenbush, 8 Pet. 288, 289 (1834).

[34] Morgan v. Devine, 237 U.S. 632 (1915). See also Carter v. McClaughry, 183 U.S. 365 (1902); Albrecht v. United States, 273 U.S. 1 (1927).

[35] Ex parte Nielsen, 131 U.S. 176, 188 (1889).

[36] Helvering v. Mitchell, 303 U.S. 391 (1938).

[37] Pinkerton v. United States, 328 U.S. 640 (1946); United States v. Bayer, 331 U.S. 532 (1947).

[38] Pinkerton v. United States, 328 U.S. 640 (1946).

[39] American Tobacco Co. v. United States, 328 U.S. 781 (1946).

[40] 339 U.S. 485 (1950).

[41] Coffey v. United States, 116 U.S. 436 (1886).

[42] United States v. La Franca, 282 U.S. 568 (1931).

[43] Helvering v. Mitchell, 303 U.S. 391 (1938).

[44] Waterloo Distilling Corp. v. United States, 282 U.S. 577 (1931).

[45] United States v. Furlong, 5 Wheat. 184, 197 (1820).

[46] United States v. Lanza, 260 U.S. 377 (1922); Jerome v. United States, 318 U.S. 101 (1943).

[47] In re Chapman, 166 U.S. 661, 672 (1897).

[48] See generally J.H. Wigmore, 4 Evidence in Trials at Common Law, Sec. 2250 (2nd ed., 1923); also Edward S. Corwin, The Supreme Court's Construction of the Self-Incrimination Clause, 29 Michigan Law Review, 1-27, 195-207 (1930).

[49] McCarthy v. Arndstein, 266 U.S. 34, 40 (1924). See also Boyd v. United States, 116 U.S. 616 (1886); Counselman v. Hitchcock, 142 U.S. 547 (1892); Brown v. Walker, 161 U.S. 591 (1896).

[50] Rogers v. United States, 340 U.S. 367, 370 (1951); United States v. Monia, 317 U.S. 424, 427 (1943).

[51] Hoffman v. United States, 341 U.S. 479, 486 (1951); Mason v. United States, 244 U.S. 362, 363 (1917).

[52] Rogers v. United States, 340 U.S. 367, 371 (1951); United States v. Murdock, 284 U.S. 141, 148 (1931).

[53] Brown v. Walker, 161 U.S. 591, 598-599 (1896).

[54] Cf. Burdick v. United States, 236 U.S. 79 (1915); and Biddle v. Perovich, 274 U.S. 480 (1927).

[55] United States v. Murdock, 284 U.S. 141, 149 (1931).

[56] Feldman v. United States, 322 U.S. 487 (1944).

[57] Brown v. Walker, 161 U.S. 591 (1896); Johnson v. United States, 318 U.S. 189 (1943).

[58] Cf. Twining v. New Jersey, 211 U.S. 78 (1908). However, a defendant in a prosecution by the United States enjoys a statutory right to have the jury instructed that his failure to testify creates no presumption against him. 28 U.S.C. 632; Bruno v. U.S., 308 U.S. 287 (1939). See also 318 U.S. at 196.

[59] Pierce v. United States, 160 U.S. 355 (1896); Wilson v. United States, 162 U.S. 613 (1896); United States v. Mitchell, 322 U.S. 65 (1944).

[60] 318 U.S. 332 (1943).

[61] Ibid., 340. In Upshaw v. United States, 335 U.S. 410 (1948), a sharply divided Court found the McNabb case inapplicable to a case in which respondent, while under arrest for assault with intent to rape, was brought, by extended questioning, to confess having previously committed murder in an attempt to rape.

[62] Sullivan v. United States, 274 U.S. 259, 263 264 (1927).

[63] Blau v. United States, 340 U.S. 159 (1950). See also Blau v. United States, 340 U.S. 332 (1951); Rogers v. United States, 340 U.S. 367 (1951); Dennis v. United States, 341 U.S. 494 (1951).

[64] Holt v. United States, 218 U.S. 245 (1910).

[65] Rochin v. California, 342 U.S. 165 (1952).

[66] Re Harris, 221 U.S. 274, 279 (1911).

[67] Dier v. Banton, 262 U.S. 147 (1923).

[68] Re Fuller, 262 U.S. 91 (1923).

[69] Arndstein v. McCarthy, 254 U.S. 71 (1920).

[70] McCarthy v. Arndstein, 262 U.S. 355 (1923).

[71] McCarthy v. Arndstein, 266 U.S. 34 (1924).

[72] Hale v. Henkel, 201 U.S. 43 (1906); Wilson v. United States, 221 U.S. 361 (1911); Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186 (1946).

[73] United States v. White, 322 U.S. 694 (1944).

[74] Rogers v. United States, 340 U.S. 367, 372 (1951).

[75] See pp. 825-828 ante.

[76] 335 U.S. 1 (1948).

[77] Ibid. 33. In a dissenting opinion Justice Frankfurter argued: "The underlying assumption of the Court's opinion is that all records which Congress in the exercise of its constitutional powers may require individuals to keep in the conduct of their affairs, because those affairs also have aspects of public interest, become 'public' records in the sense that they fall outside the constitutional protection of the Fifth Amendment. The validity of such a doctrine lies in the scope of its implications. The claim touches records that may be required to be kept by federal regulatory laws, revenue measures, labor and census legislation in the conduct of business which the understanding and feeling of our people still treat as private enterprise, even though its relations to the public may call for governmental regulation, including the duty to keep designated records.... If Congress by the easy device of requiring a man to keep the private papers that he has customarily kept can render such papers 'public' and nonprivileged, there is little left to either the right of privacy or the constitutional privilege." Ibid. 70.

[78] The Institutes, Part 2, 50-51 (1669).

[79] On the above see especially Justice Harlan's dissenting opinion in Hurtado v. California, 110 U.S. 516, 538 (1884); also Den ex dem. Murray v. Hoboken Land & Improvement Co., 18 How. 272, 280 (1856); Twining v. New Jersey, 211 U.S. 78 (1908); also Corwin, Liberty Against Government (Louisiana State University Press), chap. III.

[80] Scott v. Sandford, 10 How. 393, 450 (1857).

[81] Adkins v. Children's Hospital, 261 U.S. 525 (1923). See also Adair v. United States, 208 U.S. 161 (1908); and Lochner v. New York, 198 U.S. 45 (1905).

[82] Den ex dem. Murray v. Hoboken Land & Improvement Co., 18 How. 272, 276 (1856).

[83] Union P.R. Co. v. United States (Sinking Fund Cases), 99 U.S. 700, 719 (1879).

[84] Wong Wing v. United States, 163 U.S. 228, 238 (1896).

[85] United States v. Ju Toy, 198 U.S. 253, 263 (1905); cf. Quon Quon Poy v. Johnson, 273 U.S. 352 (1927).

[86] Wight v. Davidson, 181 U.S. 371, 384 (1901).

[87] Lovato v. New Mexico, 242 U.S. 199, 201 (1916).

[88] Public Utility Comrs. v. Ynchausti & Co., 251 U.S. 401, 406 (1920).

[89] Johnson v. Eisentrager, 339 U.S. 763 (1950); cf. In re Yamashita, 327 U.S. 1 (1946). Both decisions were reached by a divided Court. In the Yamashita Case, Justices Rutledge and Murphy dissented on the ground that the due process clause applies to every human being, including enemy belligerents.

[90] Davidson v. New Orleans, 96 U.S. 97, 102 (1878). Public Clearing House v. Coyne, 194 U.S. 497, 508 (1904).

[91] Ex parte Wall, 107 U.S. 265, 289 (1883).

[92] Interstate Commerce Commission v. Brimson, 154 U.S. 447, 489 (1894); Cooke v. United States, 267 U.S. 517, 537 (1925).

[93] Ex parte Wall, 107 U.S. 265 (1883).

[94] Reaves v. Ainsworth, 219 U.S. 296, 304 (1911). See also Ex parte Reed, 100 U.S. 13 (1879); Johnson v. Sayre, 158 U.S. 109 (1895); Mullan v. United States, 212 U.S. 516 (1909); United States ex rel. Creary v. Weeks, 259 U.S. 336 (1922).

[95] Kahn v. Anderson, 255 U.S. 1 (1921).

[96] Crain v. United States, 162 U.S. 625, 645 (1896).

[97] Hopt v. Utah, 110 U.S. 574, 579 (1884).

[98] Blackmer v. United States, 284 U.S. 421, 440 (1932).

[99] Hovey v. Elliott, 167 U.S. 409, 417 (1897).

[100] Beall v. New Mexico ex rel. Griffin, 16 Wall. 535 (1873).

[101] United Surety Co. v. American Fruit Product Co., 238 U.S. 140 (1915).

[102] Helis v. Ward, 308 U.S. 365 (1939).

[103] Fayerweather v. Ritch, 195 U.S. 276 (1904).

[104] Hanover Nat. Bank v. Moyses, 186 U.S. 181, 192 (1902).

[105] Parsons v. District of Columbia, 170 U.S. 45 (1898).

[106] Wright v. Davidson, 181 U.S. 371 (1901).

[107] Jones v. Buffalo Creek Coal & Coke Co., 245 U.S. 328 (1917).

[108] Luria v. United States, 231 U.S. 9 (1913).

[109] Yee Hem v. United States, 268 U.S. 178 (1925).

[110] Tot v. United States, 319 U.S. 463 (1943).

[111] Opp Cotton Mills v. Administrator, 312 U.S. 126, 152, 153 (1941).

[112] 321 U.S. 503 (1944).

[113] Ibid. 521.

[114] Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197 (1938).

[115] Central of Georgia R. Co. v. Wright, 207 U.S. 127, 136, 138, 142 (1907); Lipke v. Lederer, 259 U.S. 557, 562 (1922).

[116] Phillips v. Comr. of Internal Revenue, 283 U.S. 589 (1931). Cf. Springer v. United States, 102 U.S. 586, 593 (1881); and Passavant v. United States, 148 U.S. 214 (1893).

[117] Wong Yang Sung v. McGrath, 339 U.S. 33, 50 (1950).

[118] Morgan v. United States, 304 U.S. 1, 18-19 (1938).

[119] National Labor Relations Board v. Mackay Co., 304 U.S. 333, 349-350 (1938).

[120] Western Paper Makers' Chemical Co. v. United States, 271 U.S. 268 (1926). See also United States v. Abilene & S.R. Co., 265 U.S. 274, 288 (1924).

[121] Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 229-230 (1938).

[122] Londoner v. Denver, 210 U.S. 373 (1908).

[123] Federal Communications Commission v. WJR, 337 U.S. 265, 274-277 (1949).

[124] Ibid. 276. "The requirements imposed by the guaranty [of due process of law] are not technical, nor is any particular form of procedure necessary." Inland Empire Council v. Millis, 325 U.S. 697, 710 (1945). See Administrative Procedure Act, 60 Stat. 237 (1946); 5 U.S.C. Sec. 1001-1011.

[125] 298 U.S. 38 (1936).

[126] Ibid. 51-54. Justices Brandeis, Stone and Cardozo, while concurring in the result, took exception to this proposition.

[127] Federal Power Commission v. Natural Gas Pipeline Co., 315 U.S. 575, 586 (1942); Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591 (1944).

[128] Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591, 602 (1944).

[129] 327 U.S. 1 (1946).

[130] 339 U.S. 103 (1950).

[131] Ibid. 111.

[132] 339 U.S. 703 (1950). Justices Black, Douglas and Burton dissented.

[133] United States v. Ju Toy, 198 U.S. 253, 263 (1905). See also Yamataya v. Fisher, 189 U.S. 86, 100 (1903). Cf. United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950).

[134] Oceanic Steam Navig. Co. v. Stranahan, 214 U.S. 320 (1909).

[135] Kwock Jan Fat v. White, 253 U.S. 454, 457 (1920). See also Chin Yow v. United States, 208 U.S. 8 (1908).

[136] United States v. Sing Tuck, 194 U.S. 161 (1904). See also Quon Quon Poy v. Johnson, 273 U.S. 352, 358 (1927).

[137] Zakonaite v. Wolf, 226 U.S. 272 (1012).

[138] 339 U.S. 33 (1950).

[139] 60 Stat. 237 (1946); 5 U.S.C. Sec. 1001 et seq. (1946).

[140] United States ex rel. Vajtauer v. Comr. of Immigration, 273 U.S. 103, 106 (1927). See also Mahler v. Eby, 264 U.S. 32, 41 (1924).

[141] 198 U.S. 253 (1905).

[142] Ng Fung Ho v. White, 259 U.S. 276, 281 (1922).

[143] Ludecke v. Watkins, 335 U.S. 160 (1948). Three of the four dissenting Justices, Justices Douglas, Murphy and Rutledge, argued that even an enemy alien could not be deported without a fair hearing.

[144] Steward Machine Co. v. Davis, 301 U.S. 548, 584-585 (1937); Currin v. Wallace, 306 U.S. 1, 14 (1939); Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 401 (1940); Detroit Bank v. United States, 317 U.S. 329, 337, 338 (1943).

[145] Hill v. United States ex rel. Weiner, 300 U.S. 105, 109 (1937).

[146] District of Columbia v. Brooke, 214 U.S. 138 (1909).

[147] Panama R. Co. v. Johnson, 264 U.S. 375, 392 (1924).

[148] United States v. Rock Royal Co-operative, 307 U.S. 533, 562, 565 (1939).

[149] Currin v. Wallace, 306 U.S. 1 (1939).

[150] Detroit Bank v. United States, 317 U.S. 329 (1943).

[151] Hurd v. Hodge, 334 U.S. 24 (1948).

[152] Thiel v. Southern Pacific Co., 328 U.S. 217 (1946).

[153] 323 U.S. 192 (1944).

[154] Ibid. 198, 199.

[155] Ibid. 208, 209. Cf. the following sentence from the concurring opinion of Justice Jackson in Railway Express Agency, Inc. v. New York, 336 U.S. 106, 112 (1949): "I regard it as a salutary doctrine that cities, states and the Federal Government must exercise their powers so as not to discriminate between their inhabitants except upon some reasonable differentiation fairly related to the object of regulation."

[156] 208 U.S. 161, 174 (1908).

[157] 313 U.S. 177, 187 (1941).

[158] 261 U.S. 525, 546 (1923).

[159] 300 U.S. 379, 400 (1937).

[160] Addyston Pipe and Steel Co. v. United States, 175 U.S. 211, 229 (1899).

[161] Baltimore & O.R. Co. v. Interstate Commerce Commission, 221 U.S. 612 (1911); Wilson v. New, 243 U.S. 322 (1917); Ellis v. United States, 206 U.S. 246 (1907). See also United States v. Garbish, 222 U.S. 257 (1911).

[162] Patterson v. The "Eudora," 190 U.S. 169 (1903).

[163] Philadelphia, B. & W.R. Co. v. Schubert, 224 U.S. 603 (1912).

[164] Texas & N.O.R. Co. v. Brotherhood of Railway & S.S. Clerks, 281 U.S. 548 (1930); Virginian R. Co. v. System Federation, 300 U.S. 515, 559 (1937); National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).

[165] Highland v. Russell Car & Snow Plow Co., 279 U.S. 253, 261 (1929); United States v. Rock Royal Co-operative, 307 U.S. 533 (1939); Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381 (1940); Bowles v. Willingham, 321 U.S. 503 (1944).

[166] Farrington v. Tokushige, 273 U.S. 284 (1927).

[167] Yu Cong Eng v. Trinidad, 271 U.S. 500, 525 (1926).

[168] Fleming v. Rhodes, 331 U.S. 100, 107 (1947).

[169] Woods v. Stone, 333 U.S. 472 (1948).

[170] 332 U.S. 194, 203 (1947).

[171] Knox v. Lee, 12 Wall. 457, 551 (1871).

[172] Norman v. Baltimore & O.R. Co., 294 U.S. 240 (1935).

[173] 44 Stat. 1424 (1927), 33 U.S.C. 901 et seq. (1946).

[174] Paramino Lumber Co. v. Marshall, 309 U.S. 370 (1940).

[175] Mulford v. Smith, 307 U.S. 38 (1939).

[176] McFaddin v. Evans-Snider-Buel Co., 185 U.S. 505 (1902).

[177] Montoya v. Gonzales, 232 U.S. 375 (1914).

[178] Ochoa v. Hernandez y Morales, 230 U.S. 139 (1913).

[179] United States ex rel. Burnett v. Teller, 107 U.S. 64, 68 (1883).

[180] Oregon & C.R. Co. v. United States, 243 U.S. 549 (1917).

[181] Capital Trust Co. v. Calhoun, 250 U.S. 208 (1919).

[182] Frisbie v. United States, 157 U.S. 160 (1895); see also Margolin v. United States, 269 U.S. 93 (1925); Hines v. Lowrey, 305 U.S. 85 (1938).

[183] Wickard v. Filburn, 317 U.S. 111 (1942).

[184] Noble v. Union River Logging R. Co., 147 U.S. 165 (1893).

[185] Danzer Co. v. Gulf & S.I.R. Co., 268 U.S. 633 (1925).

[186] Lynch v. United States, 292 U.S. 571, 579 (1934). See also Perry v. United States, 294 U.S. 330 (1935).

[187] Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935).

[188] Wright v. Mountain Trust Co., 300 U.S. 440 (1937).

[189] Continental Illinois Nat. Bank & Trust Co. v. Chicago R.I. & P.R. Co., 294 U.S. 648 (1935).

[190] Kuehner v. Irving Trust Co., 299 U.S. 445 (1937).

[191] Re 620 Church Street Bldg. Corp., 299 U.S. 24 (1936).

[192] Lynch v. United States, 292 U.S. 571, 581 (1934).

[193] Dodge v. Osborn, 240 U.S. 118 (1916).

[194] Graham v. Goodcell, 228 U.S. 409 (1931).

[195] Anniston Mfg. Co. v. Davis, 301 U.S. 337 (1937).

[196] United States v. Heinszen & Co., 206 U.S. 370, 386 (1907).

[197] United States v. New York & C. Mail S.S. Co., 269 U.S. 304 (1925).

[198] United States v. Carolene Products Co., 304 U.S. 144 (1938); Carolene Products Co. v. United States, 323 U.S. 18 (1944).

[199] Kentucky Whip Collar Co. v. Illinois C.R. Co., 299 U.S. 334 (1937).

[200] Virginian R. Co. v. System Federation, 300 U.S. 515, 559 (1937); National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).

[201] National Labor Relations Board v. Stowe Spinning Co., 336 U.S. 226 (1949).

[202] National Labor Relations Board v. Mackay Co., 304 U.S. 333 (1938).

[203] Woods v. Miller, 333 U.S. 138, 146 (1948). See also Bowles v. Willingham, 321 U.S. 503 (1944).

[204] Ex parte Jackson, 96 U.S. 727 (1878).

[205] Public Clearing House v. Coyne, 194 U.S. 497 (1904); sustained in Donaldson v. Read Magazine, 333 U.S. 178 (1948).

[206] 194 U.S. 497, 505-506.

[207] American School of Magnetic Healing v. McAnnulty, 187 U.S. 94 (1902).

[208] United States ex rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407 (1921).

[209] St. Joseph Stock Yards Co. v. United States, 298 U.S. 38 (1936); Denver Union Stock Yards Co. v. United States, 304 U.S. 470 (1938).

[210] 320 U.S. 591 (1944). The result of this case had been foreshadowed by the opinion of Justice Stone in Federal Power Commission v. Natural Gas Pipeline Co., 315 U.S. 575, 586 (1942) to the effect that the Commission was not bound to the use of any single formula or combination of formulas in determining rates.

[211] 320 U.S. 591, 602, 605 (1944).

[212] American Telephone & Telegraph Co. v. United States, 299 U.S. 232 (1936); United States v. New York Telephone Co., 326 U.S. 638 (1946); Northwestern Electric Co. v. Federal Power Commission, 321 U.S. 119 (1944).

[213] Valvoline Oil Co. v. United States, 308 U.S. 141 (1939); Champlin Refining Co. v. United States, 329 U.S. 29 (1946).

[214] Isbrandtsen-Moller Co. v. United States, 300 U.S. 139, 146 (1937).

[215] St. Louis S.W. Ry. Co. v. United States, 245 U.S. 136, 143 (1917).

[216] Akron C. & Y.R. Co. v. United States, 261 U.S. 184 (1923).

[217] Dayton-Goose Creek R. Co. v. United States, 263 U.S. 456, 481, 483 (1924).

[218] Chicago, I. & L.R. Co. v. United States, 270 U.S. 287 (1926). Cf. Seaboard Air Line R. Co. v. United States, 254 U.S. 57 (1920).

[219] United States v. Berwind-White Coal Mine Co., 274 U.S. 564, 575 (1927).

[220] United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 405, 411, 415 (1909).

[221] United States v. Lowden, 308 U.S. 225 (1939).

[222] Louisville & N.R. Co. v. Mottley, 219 U.S. 467 (1911).

[223] Chicago, R.I. & P.R. Co. v. United States, 284 U.S. 80 (1931).

[224] Railroad Retirement Board v. Alton R. Co., 295 U.S. 330 (1935).

[225] United States v. Bennett, 232 U.S. 299, 307 (1914).

[226] Cook v. Tait, 265 U.S. 47 (1924).

[227] Helvering v. Lerner Stores Corp., 314 U.S. 463, 468 (1941).

[228] Brushaber v. Union P.R. Co., 240 U.S. 1, 24 (1916).

[229] McCray v. United States, 195 U.S. 27, 61 (1904).

[230] Treat v. White, 181 U.S. 264 (1901).

[231] Flint v. Stone Tracy Co., 220 U.S. 107 (1911).

[232] National Paper & Type Co. v. Bowers, 266 U.S. 373 (1924).

[233] Billings v. United States, 232 U.S. 261, 282 (1914).

[234] Steward Machine Co. v. Davis, 301 U.S. 548 (1937); Helvering v. Davis, 301 U.S. 619 (1937).

[235] Bromley v. McCaughn, 280 U.S. 124 (1929).

[236] Haavik v. Alaska Packers' Association, 263 U.S. 510 (1924).

[237] Alaska Fish Salting & By-Products Co. v. Smith, 255 U.S. 44 (1921).

[238] La Belle Iron Works v. United States, 256 U.S. 377 (1921).

[239] Helvering v. Northwest Steel Mills, 311 U.S. 46 (1940).

[240] Fernandez v. Wiener, 326 U.S. 340 (1945); cf. Coolidge v. Long, 282 U.S. 582 (1931).

[241] Untermeyer v. Anderson, 276 U.S. 440 (1928). See also Blodgett v. Holden, 275 U.S. 142 (1927); Nichols v. Coolidge, 274 U.S. 531 (1927).

[242] Heiner v. Donnan, 285 U.S. 312 (1932).

[243] United States v. Hudson, 299 U.S. 498 (1937). See also Stockdale v. Insurance Companies, 20 Wall. 323, 331, 341 (1874); Brushaber v. Union Pac. R.R., 240 U.S. 1, 20 (1916); Lynch v. Hornby, 247 U.S. 339, 343 (1918).

[244] Cooper v. United States, 280 U.S. 409 (1930); see also Reinecke v. Smith, 289 U.S. 172 (1933).

[245] Helvering v. Mitchell, 303 U.S. 391 (1938).

[246] Helvering v. Nat. Grocery Co., 304 U.S. 282 (1938).

[247] Patton v. Brady, 184 U.S. 608 (1902).

[248] Tyler v. United States, 281 U.S. 497 (1930); United States v. Jacobs, 306 U.S. 363 (1939).

[249] Reinecke v. Smith, 289 U.S. 172 (1933).

[250] Tiger v. Western Investment Co., 221 U.S. 286 (1911). See also Brader v. James, 246 U.S. 88 (1918); Williams v. Johnson, 239 U.S. 414 (1915); Lone Wolf v.. Hitchcock, 187 U.S. 553 (1903).

[251] Choate v. Trapp, 224 U.S. 665 (1912). See also English v. Richardson, 224 U.S. 680 (1912).

[252] Garfield v. United States, 211 U.S. 249 (1908). See also United States ex rel. Turner v. Fisher, 222 U.S. 204 (1911).

[253] Winton v. Amos, 255 U.S. 373 (1921).

[254] United States ex rel. Brown v. Lane, 232 U.S. 598 (1914).

[255] Walker v. McLoud, 204 U.S. 302, 309 (1907); Carpenter v. Shaw, 280 U.S. 363 (1930).

[256] United States v. Jones, 109 U.S. 513, 518 (1883); United States v. Carmack, 329 U.S. 230, 241 (1946).

[257] United States v. Lynah, 188 U.S. 445, 465 (1903).

[258] Kohl v. United States, 91 U.S. 367, 374 (1876).

[259] Chappell v. United States, 160 U.S. 499, 510 (1896).

[260] Oklahoma v. Atkinson Co., 313 U.S. 508, 534 (1941).

[261] United States v. Chemical Foundation, 272 U.S. 1, 11 (1926). See also Brown v. U.S., 8 Cr. 110 (1814); Page (Miller) v. United States, 11 Wall. 268, 304 (1871); Woodson v. Deutsche G. & S.S.V. Roessler, 292 U.S. 449 (1934); United States v. Dunnington, 146 U.S. 338 (1892); Cummings v. Deutsche Bank, 300 U.S. 115 (1937).

[262] Stoehr v. Wallace, 255 U.S. 239, 245 (1921).

[263] Silesian-American Corp. v. Clark, 332 U.S. 469 (1947); Becker Steel Co. v. Cummings, 296 U.S. 74 (1935).

[264] Russian Volunteer Fleet v. United States, 282 U.S. 481 (1931), followed in Guessefeldt v. McGrath, 342 U.S. 308 (1952).

[265] Shoemaker v. United States, 147 U.S. 282, 298 (1893).

[266] 327 U.S. 546 (1946).

[267] Ibid. 551.

[268] Ibid. 556-557; citing United States v. Gettysburg Electric R. Co., 160 U.S. 668, 680 (1896); Rindge Co. v. Los Angeles County, 262 U.S. 700, 709 (1923); Old Dominion Land Co. v. United States, 269 U.S. 55, 66 (1925); Cincinnati v. Vester, 281 U.S. 439, 446 (1930).

[269] 327 U.S. 546, 557-558.

[270] United States v. Gettysburg Electric R. Co., 160 U.S. 668 (1896).

[271] Brown v. United States, 263 U.S. 78 (1923).

[272] Monongahela Nav. Co. v. United States, 148 U.S. 312, 345 (1893).

[273] James v. Campbell, 104 U.S. 356, 358 (1882). See also Hollister v. Benedict & B. Mfg. Co., 113 U.S. 59, 67 (1885).

[274] Omnia Commercial Co. v. United States, 261 U.S. 502 (1923).

[275] International Paper Co. v. United States, 282 U.S. 399 (1931).

[276] Hannibal Bridge Co. v. United States, 221 U.S. 194, 205 (1911).

[277] Old Dominion Land Co. v. United States, 269 U.S. 55 (1925).

[278] United States v. Sponenbarger, 308 U.S. 256 (1939).

[279] 12 Wall. 457, 551 (1871).

[280] 331 U.S. 745 (1947).

[281] Ibid. 748.

[282] United States v. Causby, 328 U.S. 256 (1946).

[283] Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327 (1922). Cf. Portsmouth Harbor Land & Hotel Co. v. United States, 250 U.S. 1 (1919); Peabody v. United States, 231 U.S. 530 (1913).

[284] Richards v. Washington Terminal Co., 233 U.S. 546 (1914).

[285] Gibson v. United States, 166 U.S. 269, 271, 272 (1897).

[286] 10 Wall. 557 (1871).

[287] Ibid. 563.

[288] United States v. Appalachian Electric Power Co., 311 U.S. 377, 407, 409 (1940).

[289] Oklahoma v. Atkinson Co., 313 U.S. 508, 523 (1941).

[290] United States v. Commodore Park, Inc., 324 U.S. 386 (1945).

[291] Lewis Blue Point Oyster Cultivation Co. v. Briggs, 229 U.S. 82 (1913).

[292] United States v. Chandler-Dunbar Co., 229 U.S. 53 (1913).

[293] United States v. Willow River Power Co., 324 U.S. 499 (1945).

[294] United States v. Appalachian Electric Power Co., 311 U.S. 377, 427 (1940).

[295] United States v. Lynah, 188 U.S. 445 (1903). See also Jacobs v. United States, 290 U.S. 13 (1933).

[296] United States v. Cress, 243 U.S. 316, 328, 329 (1917).

[297] United States v. Dickinson, 331 U.S. 745 (1947).

[298] United States v. Kansas City Ins. Co., 339 U.S. 799 (1950).

[299] United States v. Cress, 243 U.S. 316 (1917).

[300] Horstmann Co. v. United States, 257 U.S. 138 (1921).

[301] Bauman v. Ross, 167 U.S. 548 (1897); Sharp v. United States, 191 U.S. 341, 351-352, 354 (1903).

[302] United States v. Welch, 217 U.S. 333 (1910).

[303] Bauman v. Ross, 167 U.S. 548 (1897).

[304] Monongahela Nav. Co. v. United States, 148 U.S. 312, 326 (1893).

[305] Reichelderfer v. Quinn, 287 U.S. 315, 318 (1932).

[306] Sharp v. United States, 191 U.S. 341 (1903).

[307] Monongahela Nav. Co. v. United States, 148 U.S. 312, 326 (1893).

[308] United States ex rel. T.V.A. v. Powelson, 319 U.S. 266, 281 (1943); United States v. Miller, 317 U.S. 369, 375 (1943).

[309] United States ex rel. T.V.A. v. Powelson, 319 U.S. 266, 275 (1943); United States v. New River Collieries Co., 262 U.S. 341 (1923).

[310] United States v. Miller, 317 U.S. 369, 374 (1943). See also Olson v. United States, 292 U.S. 246 (1934). Cf. Kimball Laundry Co. v. United States, 338 U.S. 1 (1949).

[311] Boom Co. v. Patterson, 98 U.S. 403 (1879); McCandless v. United States, 298 U.S. 342 (1936).

[312] United States v. Chandler-Dunbar Co., 229 U.S. 53 (1913).

[313] United States v. John J. Felin & Co., 334 U.S. 624 (1948).

[314] United States v. Commodities Trading Corp., 339 U.S. 121 (1950).

[315] United States v. Cors, 337 U.S. 325, 333 (1949). In United States v. Toronto Nav Co., 338 U.S. 396 (1949) the Court reversed a decision of the Court of Claims which based an award for an obsolete Great Lakes car ferry in part on a capitalization of its prior earnings, and in part on isolated sales of similar vessels used between Florida and Cuba.

[316] Mitchell v. United States, 267 U.S. 341 (1925).

[317] United States v. General Motors Corp., 323 U.S. 373, 379 (1945).

[318] Ibid. 382-384.

[319] United States v. Petty Motor Co., 327 U.S. 372 (1946).

[320] 338 U.S. 1 (1949).

[321] 341 U.S. 114 (1951).

[322] Danforth v. United States, 308 U.S. 271, 284 (1939).

[323] United States v. Klamath Indians, 304 U.S. 119, 123 (1938); Jacobs v. United States, 290 U.S. 13, 17 (1933).

[324] Albrecht v. United States, 329 U.S. 599 (1947).

[325] Henkels v. Sutherland, 271 U.S. 298 (1926). See also Phelps v. United States, 274 U.S. 341 (1927).

[326] Monongahela Nav. Co. v. United States, 148 U.S. 312, 327 (1893).

[327] United States v. Jones, 109 U.S. 513, 519 (1883).

[328] Bauman v. Ross, 167 U.S. 548, 593 (1897).

[329] United States v. Lee, 106 U.S. 196, 220 (1882).

[330] Jacobs v. United States, 290 U.S. 13 (1933); United States v. Great Falls Mfg. Co., 112 U.S. 645 (1884).

[331] Hurley v. Kincaid, 285 U.S. 95 (1932).

[332] Cherokee Nation v. Southern Kansas R. Co., 135 U.S. 641, 659 (1890).

[333] United States v. Russell, 13 Wall. 623 (1871).

[334] Shoemaker v. United States, 147 U.S. 282, 302 (1893).

AMENDMENT 6

RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS

Page Coverage of the amendment 877 Offenses against the United States 877 Trial by jury 878 Impartial jury 879 Place of trial 880 Definition of crime 881 Right of confrontation 884 Assistance of counsel 884

RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS

Amendment 6

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Coverage of the Amendment

Criminal prosecutions in the District of Columbia[1] and in incorporated territories[2] must conform to this amendment, but those in unincorporated territories need not.[3] For this purpose, Alaska was held to be an incorporated territory even before the organization of its territorial government.[4] In in re Ross[5] the requirements of this amendment were held to cover only citizens and others within the United States or who are brought to the United States for trial for alleged offenses committed elsewhere, not to citizens residing or temporarily sojourning abroad.[6] Accordingly, laws passed to carry into effect treaties granting extraterritorial rights were not rendered unconstitutional by the fact that they did not secure to an accused the right to trial by jury.

Offenses Against the United States

There are no common law offenses against the United States. Only those acts which Congress has forbidden, with penalties for disobedience of its command, are crimes.[7] As used in the Constitution the word "crime" embraces only offenses of a serious character. Petty offenses may be proceeded against summarily in any tribunal legally constituted for that purpose.[8] The nature of the act and the severity of punishment prescribed determine whether an offense is serious or petty. A penalty of $50 for a violation, not necessarily involving moral delinquency, of a revenue statute indicates only a petty offense.[9] The unlawful sale of the unused portion of railway excursion tickets without a license, is at most an infringement of local police regulations; and its moral quality is relatively inoffensive; it may therefore be tried without a jury.[10] But a charge of driving an automobile recklessly, so as to endanger life and property, is a "grave offense" for which a jury trial is requisite.[11] A conspiracy to invade the rights of another person also falls in that category.[12]

Actions to recover penalties imposed by act of Congress,[13] deportation proceedings[14] and contempt proceedings[15] for violation of an injunction have been held not to be criminal prosecutions. Only a prosecution which is technically criminal in its nature falls within the purview of Amendment VI.[16] The concept of a criminal prosecution is much narrower than that of a "criminal case" under the Fifth Amendment.[17]

Trial by Jury

The trial by jury required by the Constitution includes all the essential elements of jury trial which were recognized in this country and in England when the Constitution was adopted;[18] a jury must consist of twelve men, neither more nor less;[19] the trial must be held in the presence and under the superintendence of a judge having power to instruct the jurors as to the law and advise them in respect of the facts,[20] and the verdict must be unanimous.[21] But the requirement of a jury trial is not jurisdictional; it is a privilege which the defendant may waive with the consent of the Government and the approval of the court. There is no distinction between a complete waiver of a jury and a consent to be tried by less than twelve men.[22] When a person is charged with more than one crime, the right to a speedy trial does not require that he be first tried on the earliest indictment; no constitutional right is violated by removing him to another jurisdiction for trial on a later indictment.[23]

Impartial Jury

"* * *, the guarantee of an impartial jury to the accused in a criminal prosecution, * * *, secures to him the right to enjoy that mode of trial from the first moment, and in whatever court, he is put on trial for the offense charged. * * * To accord to the accused a right to be tried by a jury, in an appellate court, after he has been once fully tried otherwise than by a jury, in the court of original jurisdiction, and sentenced to pay a fine or be imprisoned for not paying it, does not satisfy the requirements of the Constitution."[24]

The qualification of government employees to serve on juries in the District of Columbia has been the principal source of controversy concerning the meaning of the phrase "impartial jury." In 1909, the Supreme Court decided, on common law grounds, that such employees were disqualified in criminal proceedings instituted by the Government.[25] As the proportion of public to private employees increased, this decision created difficulties in securing properly qualified jurors. To meet the situation, Congress removed the disqualification by statute in 1935. In United States v. Wood,[26] the act was held valid as applied in a criminal prosecution for theft from a private corporation. By a narrow majority the Court has subsequently held that government employees as a class are not disqualified by an implied bias against a person accused of violating the federal narcotics statutes,[27] nor against an officer of the Communist party charged with willful failure to appear before a Congressional committee in compliance with a subpoena.[28] In both cases, the way was left open for a defendant to establish the disqualification of federal employees by adducing proof of actual bias.

The Constitution does not require Congress to allow peremptory challenge to jurors in criminal cases. Consequently the contention that several defendants being tried together on a charge of conspiracy were denied a trial by an impartial jury because each was not allowed the full statutory number of peremptory challenges was without merit.[29] It is good ground for challenge for cause that a juror has formed an opinion as to the issue to be tried. But every opinion which a juror may entertain does not necessarily disqualify him. Upon the trial of the issue of fact raised by such a challenge, the Court must determine whether the nature and strength of the opinion are such as in law necessary to raise the presumption of partiality.[30] A member of the Socialist party is not denied any constitutional right by being tried by a jury composed exclusively of members of other parties and of property owners.[31]

Place of Trial

An accused cannot be tried in one district under an indictment showing that the offense was committed in another;[32] the locality in which the offense is charged to have been committed determines the place and court of trial.[33] In a prosecution for conspiracy, the accused may be tried in any State and district where an overt act was performed.[34] Where a United States Senator was indicted for agreeing to receive compensation for services to be rendered in a proceeding before a government department, and it appeared that a tentative arrangement for such services was made in Illinois and confirmed in St. Louis, the defendant was properly tried in St. Louis, although he was not physically present in Missouri when notice of ratification was dispatched.[35] The offense of obtaining transportation of property in interstate commerce at less than the carrier's published rates,[36] or the sending of excluded matter through the mails,[37] may be made triable in any district through which the forbidden transportation is conducted. By virtue of a presumption that a letter is delivered in the district to which it is addressed, the offense of scheming to defraud a corporation by mail was held to have been committed in that district although the letter was posted elsewhere.[38] The Constitution does not require any preliminary hearing before issuance of a warrant for removal of an accused to the court having jurisdiction of the charge.[39] The assignment of a district judge from one district to another, conformably to statute, does not create a new judicial district whose boundaries are undefined nor subject the accused to trial in a district not established when the offense with which he is charged was committed.[40] For offenses against federal laws not committed within any State, Congress has the sole power to prescribe the place of trial; such an offense is not local and may be tried at such place as Congress may designate.[41] The place of trial may be designated by statute after the offense has been committed.[42]

Definition of Crime

The effect of the clause entitling an accused to know the nature and cause of the accusation against him commences with the statutes fixing or declaring offenses. It adopts the general rule of the common law that such statutes are not to be construed to embrace offenses which are not within their intention and terms. Under this clause it is necessary that a crime "be in some way declared by the legislative power"; it "cannot be constructed by the courts from any supposed intention of the legislature which the statute fails to state."[43] A criminal statute which is so vague that it leaves the standard of guilt to the "variant views of the different courts and juries which may be called on to enforce it"[44] cannot be squared with this provision. Thus it was held, in the United States v. Cohen Grocery Co.,[45] that a statute making it unlawful "for any person willfully * * * to make any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries" was unconstitutional because it was not "adequate to inform persons accused of violation thereof of the nature and cause of the accusation against them."[46] But a provision of the Immigration Act[47] which makes it a felony for an alien against whom a specified order of deportation is pending to "willfully fail or refuse to make timely application in good faith for travel or other documents necessary to his departure" is not, on its face, void for indefiniteness.[48]

An important aspect of this problem was presented, but not definitely settled, in Screws v. United States.[49] There State law enforcement officers had been convicted of violating a federal law making it a crime for anyone acting under color of any law willfully to deprive anyone of rights secured by the Constitution of the United States.[50] The indictment charged that in beating to death a man whom they had just arrested, these officers had deprived him of life without due process of law. The defendant claimed that the statute was unconstitutional insofar as it made criminal acts in violation of the due process clause, because that concept was too vague to supply an ascertainable standard of guilt.[51] Four opinions were written in the Supreme Court, no one of which obtained the concurrence of a majority of the Justices. To "avoid grave constitutional questions" four members construed the word "willfully" as "connoting a purpose to deprive a person of a specific constitutional right,"[52] and held that such "requirement of a specific intent to deprive a person of a federal right made definite by decision or other rule of law saves the Act from any charge of unconstitutionality on the grounds of vagueness."[53] Justices Murphy and Rutledge considered the statute to be sufficiently definite with respect to the offense charged and thought it unnecessary to anticipate doubts that might arise in other cases.[54] However, to prevent a stalemate, Justice Rutledge voted with the four members who believed the case should be reversed to be tried again on their narrower interpretation of the statute. Justices Roberts, Frankfurter and Jackson found the act too indefinite to be rescued by a restrictive interpretation. With respect to the effect of the requirement of willfulness, they said: "If a statute does not satisfy the due-process requirement of giving decent advance notice of what it is which, if happening, will be visited with punishment, so that men may presumably have an opportunity to avoid the happening * * *, then 'willfully' bringing to pass such an undefined and too uncertain event cannot make it sufficiently definite and ascertainable. 'Willfully' doing something that is forbidden, when that something is not sufficiently defined according to the general conceptions of requisite certainty in our criminal law, is not rendered sufficiently definite by that unknowable having been done 'willfully.' It is true also of a statute that it cannot lift itself up by its bootstraps."[55] In Williams v. United States,[56] however, it was held by a sharply divided Court that Sec. 20 did not err for vagueness where the indictment made it clear that the constitutional right violated by the defendant was immunity from the use of force and violence to obtain a confession, and this meaning was also made clear by the trial judge's charge to the jury.[57]

Statutes prohibiting the coercion of employers to hire unneeded employees,[58] establishing minimum wages and maximum hours of service for persons engaged in the production of goods for interstate commerce,[59] forbidding undue or unreasonable restraints of trade,[60] making it unlawful to build fires near any forest or inflammable material,[61] banning the receipt of contributions by members of Congress from federal employees for any political purpose,[62] or penalizing the copying or taking of documents connected with the national defense, with intent, or reason to believe that they are to be used to the injury of the United States or to the advantage of a foreign nation,[63] have been held to be sufficiently definite to be constitutional. A provision penalizing excessive charges in connection with loans from the Home Owners Loan Corporation was not rendered indefinite by the exception of "ordinary fees for services actually rendered,"[64] nor was a statute forbidding misstatement of the quantity of the contents of a package wanting in certainty by reason of a proviso permitting "reasonable variations."[65]

The constitutional right to be informed of the nature and cause of the accusation entitles the defendant to insist that the indictment apprise him of the crime charged with such reasonable certainty that he can make his defense and protect himself after judgment against another prosecution on the same charge.[66] No indictment is sufficient if it does not allege all of the ingredients which constitute the crime. Where the language of a statute is, according to the natural import of the words, fully descriptive of the offense, it is sufficient if the indictment follows the statutory phraseology;[67] but where the elements of the crime have to be ascertained by reference to the common law or to other statutes, it is not sufficient to set forth the offense in the words of the statute; the facts necessary to bring the case within the statutory definition must also be alleged.[68] If an offense cannot be accurately and clearly described without an allegation that the accused is not within an exception contained in the statutes, an indictment which does not contain such allegation is defective.[69] Despite the omission of obscene particulars, an indictment in general language is good if the unlawful conduct is so described so as reasonably to inform the accused of the nature of the charge sought to be established against him.[70] The Constitution does not require the Government to furnish a copy of the indictment to an accused.[71]

Right of Confrontation

The right of confrontation did not originate in the Sixth Amendment; it was a common law right having recognized exceptions. The purpose of the constitutional provision was to preserve that right, but not to broaden it or wipe out the exceptions.[72] The amendment does not accord a right to be apprised of the names of witnesses who appeared before a grand jury.[73] It does not preclude the admission of dying declarations,[74] nor of the stenographic report of testimony given at a former trial by a witness since deceased.[75] An accused who is instrumental in concealing a witness cannot complain of the admission of evidence to prove what that witness testified at a former trial on a different indictment.[76] If the absence of the witness is chargeable to the negligence of the prosecution, rather than to the procurement of the accused, evidence given in a preliminary hearing before a United States Commissioner cannot be used at the trial.[77] A statute which declared that the judgment of conviction against the principal felons should be conclusive evidence, in a prosecution against persons to whom they had transferred property, that the property had been stolen or embezzled from the United States, was held to contravene this clause.[78]

Assistance of Counsel

The Sixth Amendment withholds from the federal courts, in all criminal proceedings, the power to deprive an accused of his life or liberty unless he has waived, or waives, the assistance of counsel.[79] Since deportation proceedings are not criminal in character, the admission of testimony given by the alien during investigation prior to arrest did not render the hearing unfair, despite the fact that he had not been advised of his right to have counsel or to decline to answer questions as to his alienage.[80] The right to counsel is violated where, over the defendant's objection, the court requires his counsel to represent a co-defendant whose interest may possibly conflict with his;[81] likewise where the trial judge decided, without notice to a defendant and without his presence, that the latter had consented to be represented by counsel who also represented another defendant in the same case.[82] The right may be waived by a defendant whose education qualifies him to make an intelligent choice.[83] A sentence imposed upon a plea of guilty is invalid if such plea was entered through deception or coercion of the prosecuting attorney, or in reliance upon erroneous advice given by a lawyer in the employ of the Government, where the defendant did not have the assistance of counsel and had not understandingly waived the right to such assistance.[84]

Notes

[1] Callan v. Wilson, 127 U.S. 540 (1888).

[2] Reynolds v. United States, 98 U.S. 145 (1879). See also Lovato v. New Mexico, 242 U.S. 199 (1916).

[3] Balzac v. Porto Rico, 258 U.S. 298, 304-305 (1922).

[4] Rassmussen v. United States, 197 U.S. 516 (1905).

[5] 140 U.S. 453 (1891).

[6] Ibid. 464.

[7] United States v. Hudson & Goodwin, 7 Cr. 32, 33 (1812); United States v. Coolidge, 1 Wheat. 415 (1816); United States v. Britton, 108 U.S. 199, 206 (1883); United States v. Eaton, 144 U.S. 677, 687 (1892).

[8] Callan v. Wilson, 127 U.S. 540, 552 (1888).

[9] Schick v. United States, 195 U.S. 65, 68 (1904).

[10] District of Columbia v. Clawans, 300 U.S. 617 (1937).

[11] District of Columbia v. Colts, 282 U.S. 63 (1930).

[12] Callan v. Wilson, 127 U.S. 540 (1888).

[13] Oceanic Navigation Co. v. Stranahan, 214 U.S. 320 (1909); Hepner v. United States, 213 U.S. 103 (1909); United States v. Regan, 232 U.S. 37 (1914).

[14] United States ex rel. Turner v. Williams, 194 U.S. 279, 289 (1904); Zakonaite v. Wolf, 226 U.S. 272 (1912).

[15] In re Debs, 158 U.S. 564, 594 (1895); Gompers v. United States, 233 U.S. 604 (1914); Myers v. United States, 264 U.S. 95 (1924).

[16] United States v. Zucker, 161 U.S. 475, 481 (1896).

[17] Counselman v. Hitchcock, 142 U.S. 547, 563 (1892).

[18] Patton v. United States, 281 U.S. 276 (1930).

[19] Thompson v. Utah, 170 U.S. 343, 350 (1898); Rassmussen v. United States, 197 U.S. 518 (1905).

[20] Capital Traction Co. v. Hof, 174 U.S. 1, 13 (1899).

[21] Maxwell v. Dow, 176 U.S. 581, 586 (1900); Andres v. United States, 333 U.S. 740 (1948).

[22] Patton v. United States, 281 U.S. 276 (1930).

[23] Beavers v. Haubert, 198 U.S. 77 (1905).

[24] Callan v. Wilson, 127 U.S. 540, 557 (1888).

[25] Crawford v. United States, 212 U.S. 183 (1909).

[26] 299 U.S. 123 (1936).

[27] Frazier v. United States, 335 U.S. 497 (1948).

[28] Dennis v. United States, 339 U.S. 162 (1950).

[29] Stilson v. United States, 250 U.S. 583, 586 (1919).

[30] Reynolds v. United States, 98 U.S. 145 (1879).

[31] Ruthenberg v. United States, 245 U.S. 480 (1918).

[32] Salinger v. Loisel, 265 U.S. 224 (1924).

[33] Beavers v. Henkel, 194 U.S. 73, 83 (1904).

[34] Brown v. Elliott, 225 U.S. 392 (1912); Hyde v. United States, 225 U.S. 347 (1912); Haas v. Henkel, 216 U.S. 462 (1910).

[35] Burton v. United States, 202 U.S. 344 (1906).

[36] Armour Packing Co. v. United States, 209 U.S. 56 (1908).

[37] United States v. Johnson, 323 U.S. 273, 274 (1944).

[38] Hagner v. United States, 285 U.S. 427, 429 (1932).

[39] Hughes v. Gault, 271 U.S. 142 (1926). Cf. Tinsley v. Treat, 205 U.S. 20 (1907); Beavers v. Henkel, 194 U.S. 73, 84 (1904).

[40] Lamar v. United States, 241 U.S. 103 (1916).

[41] Jones v. United States, 137 U.S. 202, 211 (1890); United States v. Dawson, 15 How. 467, 488 (1853).

[42] Cook v. United States, 138 U.S. 157, 182 (1891). See also United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 250-254 (1940); also United States v. Johnson, 323 U.S. 273 (1944).

[43] United States v. Potter, 56 F. 83, 88 (1892). See also Viereck v. United States, 318 U.S. 236 (1943); Kraus Bros. v. United States, 327 U.S. 614, 621 (1946).

[44] United States v. Cohen Grocery Co., 264 F. 218, 220 (1920), affirmed 255 U.S. 81 (1921).

[45] 255 U.S. 81 (1921).

[46] Ibid. 89.

[47] 8 U.S.C. Sec. 145 (c).

[48] United States v. Spector, 343 U.S. 169 (1952).

[49] 325 U.S. 91 (1945).

[50] Section 20 of the Criminal Code; 18 U.S.C. Sec. 242.

[51] 325 U.S. 91, 94, 95.

[52] Ibid. 101.

[53] Ibid. 103.

[54] Ibid. 113, 135.

[55] Ibid. 154.

[56] 341 U.S. 97 (1951).

[57] See also Koehler et al. v. United States, 342 U.S. 852 (1951).

[58] United States v. Petrillo, 332 U.S. 1 (1947).

[59] United States v. Darby, 312 U.S. 100, 125 (1941).

[60] Nash v. United States, 229 U.S. 373 (1913).

[61] United States v. Alford, 274 U.S. 264 (1927).

[62] United States v. Wurzbach, 280 U.S. 396 (1930).

[63] Gorin v. United States, 312 U.S. 19 (1941).

[64] Kay v. United States, 303 U.S. 1 (1938).

[65] United States v. Shreveport Grain & Elevator Co., 287 U.S. 77 (1932).

[66] United States v. Cruikshank, 92 U.S. 542, 544, 558 (1876); United States v. Simmons, 96 U.S. 360 (1878); Bartell v. United States, 227 U.S. 427 (1913); Burton v. United States, 202 U.S. 344 (1906).

[67] Potter v. United States, 155 U.S. 438, 444 (1894).

[68] United States v. Carll, 105 U.S. 611 (1882).

[69] United States v. Cook, 17 Wall. 168, 174 (1872).

[70] Rosen v. United States, 161 U.S. 29, 40 (1896).

[71] United States v. Van Duzee, 140 U.S. 169, 173 (1891).

[72] Salinger v. United States, 272 U.S. 542, 548 (1926).

[73] Wilson v. United States, 221 U.S. 361 (1911).

[74] Kirby v. United States, 174 U.S. 47, 61 (1809); Robertson v. Baldwin, 165 U.S. 275, 282 (1897).

[75] Mattox v. United States, 156 U.S. 237, 240 (1895).

[76] Reynolds v. United States, 98 U.S. 145, 160 (1879).

[77] Motes v. United States, 178 U.S. 458 (1900).

[78] Kirby v. United States, 174 U.S. 47 (1899).

[79] Johnson v. Zerbst, 304 U.S. 458, 463 (1938).

[80] United States ex rel. Bilokumsky v. Tod, 263 U.S. 149 (1923).

[81] Glasser v. United States, 315 U.S. 60 (1942).

[82] United States v. Hayman, 342 U.S. 205 (1952).

[83] Adams v. United States, 317 U.S. 269 (1942).

[84] Walker v. Johnston, 312 U.S. 275 (1941); Von Moltke v. Gillies, 332 U.S. 708 (1948). See also United States ex rel. McCann v. Adams, 320 U.S. 220 (1943).

AMENDMENT 7

CIVIL TRIALS

Page Trial by jury in civil cases 891 Origin and purpose of the amendment 891 Trial by jury, elements of, preserved 891 To what courts and cases applicable 892 Cases not governed by the amendment 893 Restrictive force of the amendment 894 Judge and jury 895 Line drawn by the common law 895 Directed verdicts 896 Waiver of right of trial by jury 897 Appeals from State courts to the Supreme Court 897

CIVIL TRIALS

Amendment 7

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Trial by Jury in Civil Cases

ORIGIN AND PURPOSE OF THE AMENDMENT

Late in the Federal Convention it was moved that a clause be inserted in article III, section 2 of the draft Constitution to read "* * * and a trial by jury shall be preserved as usual in civil cases." The proposal failed when it was pointed out that the make-up and powers of juries differed greatly in different States and that a uniform provision for all States was impossible.[1] The objection evidently anticipated that in cases falling to their jurisdiction on account of the diversity of citizenship of the parties, the federal courts would conform their procedure to the laws of the several States.[2] The omission, however, raised an objection to the Constitution which "was pressed with an urgency and zeal * * * well-nigh preventing its ratification."[3] Nor was the agitation assuaged by Hamilton's suggestion in The Federalist that Congress would have ample power, in establishing the lower federal courts and in making "exceptions" to the Supreme Court's appellate jurisdiction, to safeguard jury trial in civil cases according to the standards of the common law.[4] His argument bore fruit, nevertheless, in the Seventh Amendment, whereby, in the words of the Court, the right of trial by jury is preserved as it "existed under the English common law when the amendment was adopted."[5]

TRIAL BY JURY, ELEMENTS OF, PRESERVED

"Trial by jury," in the sense of Amendment VII, "is a trial by a jury of twelve men, in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts and (except in acquittal of a criminal charge) to set aside their verdict if in his opinion it is against the law or the evidence."[6] A further requisite is "that there shall be a unanimous verdict of the twelve jurors in all federal courts where a jury trial is held."[7] Assuming such a jury, the amendment has for its primary purpose the preservation of "* * * the common law distinction between the province of the court and that of the jury, whereby, in the absence of express or implied consent to the contrary, issues of law are resolved by the court and issues of fact are to be determined by the jury under appropriate instructions by the court."[8] But the amendment "does not exact the retention of old forms of procedure" nor does it "prohibit the introduction of new methods of ascertaining what facts are in issue * * *" or new rules of evidence.[9]

TO WHAT COURTS AND CASES APPLICABLE

Amendment VII governs only courts which sit under the authority of the United States,[10] including courts in the territories[11] and the District of Columbia.[12] It does not apply to a State court even when it is enforcing a right created by federal statute.[13] Its coverage is "* * * limited to rights and remedies peculiarly legal in their nature, and such as it was proper to assert in courts of law and by the appropriate modes and proceedings of courts of law."[14] The term "common law" is used in contradistinction to suits in which equitable rights alone were recognized at the time of the framing of the amendment and equitable remedies were administered.[15] Hence it does not apply to cases where recovery of money damages is incident to equitable relief even though damages might have been recovered in an action at law.[16] Nor does it apply to cases in admiralty and maritime jurisdiction, in which the trial is by a court without a jury.[17] Nor does it reach statutory proceedings unknown to the common law, such as an application to a court of equity to enforce an order of an administrative body.[18]

CASES NOT GOVERNED BY THE AMENDMENT

Omission of a jury has been upheld in the following instances on the ground that the suit in question was not a suit at common law within the meaning of the Seventh Amendment;

(1) Suits to enforce claims against the United States.[19]

(2) Suit authorized by Territorial law against a municipality, based upon a moral obligation only.[20]

(3) Suit to cancel a naturalization certificate for fraud.[21]

(4) Order of deportation of an alien.[22]

(5) Assessment of damages in patent infringement suit.[23]

(6) Longshoremen's and Harbor Workers' Compensation Act.[24]

(7) Jurisdiction of bankruptcy court to examine into reasonableness of fees paid by person for legal services in contemplation of bankruptcy.[25]

(8) Final decision of customs appraisers in regard to value of imports.[26]

It has been further held that there was no infringement of the constitutional right to trial by jury in the following circumstances:

(1) A territorial statute requiring specific answers to special interrogations, in addition to a general verdict.[27]

(2) A rule of a District of Columbia court authorizing judgment by default in an action ex contractu, on failure to show by affidavit a good defense.[28]

(3) A federal court's observance of a State statute making a certified copy of a coroner's verdict prima facie evidence of the facts stated.[29]

(4) A federal statute (24 Stat. 379) giving prima facie effect to findings of the Interstate Commerce Commission.[30]

(5) An order of a District of Columbia court appointing an auditor in a law case to examine books and papers, make computations, hear testimony, and render a report which will serve as prima facie evidence of the facts found and conclusions reached, unless rejected by the court.[31]

(6) A decree of the Supreme Court enjoining, in the exercise of its original jurisdiction, the State of Louisiana from continuing to trespass upon lands under the ocean beyond its coasts and requiring the State to account for the money derived from that area.[32]

RESTRICTIVE FORCE OF THE AMENDMENT

But the absolute right to a trial of the facts by a jury may not be impaired by any blending with a claim, properly cognizable at law, of a demand for equitable relief in aid of the legal action or during its pendency. Such aid in the federal courts must be sought in separate proceedings.[33] Federal statutes from Revised Statutes (Sec. 723) through the Judicial Code (Sec. 267), prohibiting courts of the United States to sustain suits in equity where the remedy is complete at law, serve to guard the right of trial by jury, and should be liberally construed.[34] So also should Equity Rule 30, requiring the answer to a bill in equity to state any counterclaim arising out of the same transaction; such rule was not intended to change the line between law and equity, and must be construed as referring to equitable counterclaims only.[35] Nor may the distinction between law and equity, so far as federal courts are concerned, be obliterated by State legislation.[36] So, where State law, in advance of judgment, treated the whole proceeding upon a simple contract, including determination of validity and of amount due, as an equitable proceeding, it brought the case within the federal equity jurisdiction on removal. Ascertainment of plaintiff's demand being properly by action at law, however, the fact that the equity court had power to summon a jury on occasion did not afford an equivalent of the right of trial by jury secured by the Seventh Amendment.[37] But where State law gives an equitable remedy, such as to quiet title to land, the federal courts will enforce it if it does not obstruct the rights of the parties as to trial by jury.[38] An order of the Court of Claims attempting to reinstate a dismissed case in violation of plaintiff's right to dismiss violates the latter's right to trial by jury and may be corrected by mandamus.[39]

Judge and Jury

LINE DRAWN BY THE COMMON LAW

As was noted above, the primary purpose of the amendment was to preserve the historic line separating the province of the jury from that of the judge, without at the same time preventing procedural improvement which did not transgress this line. Elucidating this formula, the Court has achieved the following results: It is constitutional for a federal judge, in the course of trial, to express his opinion upon the facts, provided all questions of fact are ultimately submitted to the jury;[40] to call the jury's attention to parts of the evidence he deems of special importance,[41] being careful to distinguish between matters of law and matters of opinion in relation thereto;[42] to inform the jury when there is not sufficient evidence to justify a verdict, that such is the case;[43] to direct the jury, after plaintiff's case is all in, to return a verdict for the defendant on the ground of the insufficiency of the evidence;[44] to set aside a verdict which in his opinion is against the law or the evidence, and order a new trial;[45] to refuse defendant a new trial on the condition, accepted by plaintiff, that the latter remit a portion of the damages awarded him;[46] but not, on the other hand, to deny plaintiff a new trial on the converse condition, although defendant accepted it.[47]

DIRECTED VERDICTS

In 1913 the Court held, in Slocum v. New York Life Insurance Company,[48] that where upon the evidence a federal trial court, sitting in New York, ought to have directed a verdict for one party but the jury found for the other contrary to the evidence, the amendment rendered it improper for a federal appeals court to order, in accordance with New York practice, the entry of a judgment contrary to the verdict; that the only course open to either court was to order a new trial. While plainly in accordance with the common law as it stood in 1791, the decision was five-to-four and was subjected to a heavy fire of professional criticism urging the convenience of the thing and the theory of the capacity of the common law for growth.[49] It has, moreover, been impaired, if not completely undermined by certain more recent holdings. In the first of these,[50] in which the same Justice spoke for the Court as in the Slocum Case, it was held that a trial court had the right to enter a judgment on the verdict of the jury for the plaintiff after overruling a motion by defendant for dismissal on the ground of insufficient evidence. The Court owned that its ruling was out of line with some of its expressions in the Slocum Case.[51] In the second case[52] the Court sustained a United States district court in Arkansas, in an action between parties of diverse citizenship, in rejecting a motion by defendant for dismissal and peremptorily directing a verdict for the plaintiff. The Supreme Court held that there was ample evidence to support the verdict and that the trial court, in following Arkansas procedure, had acted consistently with the Federal Conformity Act.[53] In the third case,[54] which involved an action against the Government for benefits under a war risk insurance policy which had been allowed to lapse, the trial court directed a verdict for the Government on the ground of the insufficiency of the evidence and was sustained in so doing by both the circuit court of appeals and the Supreme Court. Three Justices, speaking by Justice Black, dissented in an opinion in which it is asserted that "today's decision marks a continuation of the gradual process of judicial erosion which in one-hundred-fifty years has slowly worn away a major portion of the essential guarantee of the Seventh Amendment."[55] That the Court should experience occasional difficulty in harmonizing the idea of preserving the historic common law covering the relations of judge and jury with the notion of a developing common law is not surprising.

WAIVER OF RIGHT OF TRIAL BY JURY

Parties have a right to enter into a stipulation waiving a jury and submitting the case to the court upon an agreed statement of facts, even without any legislative provision for waiver.[56] "* * * Congress has, by statute, provided for the trial of issues of fact in civil cases by the court without the intervention of a jury, only when the parties waive their right to a jury by a stipulation in writing. Revised Statutes sections 648, 649."[57] This statutory provision for a written stipulation, however, does not preclude other kinds of waivers.[58] But every reasonable presumption should be indulged against a waiver.[59] None is to be implied from a request for a directed verdict.[60]

APPEALS FROM STATE COURTS TO THE SUPREME COURT

The last clause of Amendment VII is not restricted in its application to suits at common law tried before juries in United States courts. It applies equally to a case tried before a jury in a State court and brought to the United States Supreme Court on appeal.[61]

Notes

[1] 2 Farrand, Records, 628.

[2] See Federal Conformity Act, 28 U.S.C.A. Sec. 724.

[3] 2 Story, Commentaries on the Constitution, Sec. 1763.

[4] Federalist, Nos. 81 and 83.

[5] Baltimore & C. Line v. Redman, 295 U.S. 654, 657 (1935); Parsons v. Bedford, 3 Pet. 433, 446-448 (1830).

[6] Capital Traction Co. v. Hof, 174 U.S. 1, 13, 14 (1899). Here it was held that a civil trial before a justice of the peace in the District of Columbia, although by a jury of twelve men, was not a jury trial in the sense of Amendment VII.

[7] Maxwell v. Dow, 176 U.S. 581, 586 (1900). See also American Publishing Co. v. Fisher, 166 U.S. 464 (1897); Springville v. Thomas, 166 U.S. 707 (1897); Andres v. United States, 333 U.S. 740, 748 (1948).

[8] Baltimore & C. Line v. Redman, 295 U.S. 654, 657 (1935); Walker v. New Mexico, & S.P.R. Co., 165 U.S. 593, 596 (1897); Gasoline Products Co. v. Champlin Ref. Co., 283 U.S. 494, 497-499 (1931); Dimick v. Schiedt, 293 U.S. 474, 476, 485-486 (1935).

[9] Gasoline Products Co. v. Champlin Ref. Co., 283 U.S. 494, 498 (1931); Ex parte Peterson, 253 U.S. 300, 309 (1920).

[10] Pearson v. Yewdall, 95 U.S. 294, 296 (1877). See also Edwards v. Elliott, 21 Wall. 532, 557 (1874); Justices of the Sup. Ct. v. United States ex rel. Murray, 9 Wall. 274, 277 (1870); Walker v. Sauvinet, 92 U.S. 90 (1876); St. Louis & K.C. Land Co. v. Kansas City, 241 U.S. 419 (1916).

[11] Webster v. Reid, 11 How. 437, 460 (1851); Kennon v. Gilmer, 131 U.S. 22, 28 (1889).

[12] Capital Traction Co. v. Hof, 174 U.S. 1, 5 (1899).

[13] Minneapolis & St. L.R. Co. v. Bombolis, 241 U.S. 211 (1916), which involved The Federal Employers Liability Act of 1908. The ruling is followed in four other cases in the same volume. See ibid. 241, 261, 485 and 494.

[14] Shields v. Thomas, 18 How. 253, 262 (1856).

[15] Parsons v. Bedford, 3 Pet. 433, 447 (1830); Barton v. Barbour, 104 U.S. 126, 133 (1881).

[16] Clark v. Wooster, 119 U.S. 322, 325 (1886); Pease v. Rathbun-Jones Eng. Co., 243 U.S. 273, 279 (1917).

[17] Parsons v. Bedford, above; Waring v. Clarke, 5 How. 441, 460 (1847). See also The "Sarah," 8 Wheat. 390, 391 (1823), and cases there cited.

[18] Labor Board v. Jones & Laughlin, 301 U.S. 1, 48 (1937). See also Interstate Commerce Commission v. Brimson, 154 U.S. 447, 488 (1894); Yakus v. United States, 321 U.S. 414, 447 (1944).

[19] McElrath v. United States, 102 U.S. 426, 440 (1880). See also Galloway v. United States, 319 U.S. 372, 388 (1943).

[20] Guthrie Nat. Bank v. Guthrie, 173 U.S. 528, 534 (1899). See also United States v. Realty Co., 163 U.S. 427, 439 (1896); Jefferson City Gaslight Co. v. Clark, 95 U.S. 644, 653 (1877).

[21] Luria v. United States, 231 U.S. 9, 27 (1913).

[22] Gee Wah Lee v. United States, 25 F. (2d) 107 (1928); certiorari denied, 277 U.S. 608 (1928).

[23] Filer & S. Co. v. Diamond Iron Works, 270 F. 489 (1921); certiorari denied, 256 U.S. 691 (1921).

[24] Crowell v. Benson, 285 U.S. 22, 45 (1932).

[25] In re Wood and Henderson, 210 U.S. 246 (1908).

[26] Auffmordt v. Hedden, 137 U.S. 310, 329 (1890).

[27] Walker v. New Mexico & S.P.R. Co., 165 U.S. 593, 598 (1897).

[28] Fidelity & D. Co. v. United States, 187 U.S. 315, 320 (1902).

[29] Jensen v. Continental Life Ins. Co., 28 F. (2d) 545 (1928), certiorari denied, 279 U.S. 842 (1929).

[30] Meeker v. Lehigh Valley R. Co., 236 U.S. 434, 439 (1915).

[31] Ex parte Peterson, 253 U.S. 300 (1920).

[32] United States v. Louisiana, 339 U.S. 699 (1950).

[33] Scott v. Neely, 140 U.S. 106, 109 (1891). See also Bennett v. Butterworth, 11 How. 669 (1850); Hipp v. Babin, 19 How. 271, 278 (1857); Lewis v. Cocks, 23 Wall. 466, 470 (1874); Killian v. Ebbinghaus, 110 U.S. 568, 573 (1884); Buzard v. Houston, 119 U.S. 347, 351 (1886).

[34] Schoenthal v. Irving Trust Co., 287 U.S. 92, 94 (1932).

[35] American Mills Co. v. American Surety Co., 260 U.S. 360, 364 (1922). See also Stamey v. United States, 37 F. (2d) 188 (1929).

[36] Thompson v. Central Ohio R. Co., 6 Wall. 134 (1868).

[37] Whitehead v. Shattuck, 138 U.S. 146 (1891); Buzard v. Houston, 119 U.S. 347 (1886); Greeley v. Lowe, 155 U.S. 58, 75 (1894).

[38] Clark v. Smith, 13 Pet. 195 (1839); Holland v. Challen, 110 U.S. 15 (1884); Reynolds v. Crawfordsville First Nat. Bank, 112 U.S. 405 (1884); Chapman v. Brewer, 114 U.S. 158 (1885); Cummings v. Merchants Nat. Bank, 101 U.S. 153, 157 (1880); United States v. Landram, 118 U.S. 81 (1886); More v. Steinbach, 127 U.S. 70 (1888). Cf. Re Simons, 247 U.S. 231 (1918).

[39] Ex parte Skinner & Eddy Corp., 265 U.S. 86, 96 (1924).

[40] Vicksburg & M.R. Co. v. Putnam, 118 U.S. 545, 553 (1886); United States v. Reading Railroad, 123 U.S. 113, 114 (1887).

[41] 118 U.S. 545; where are cited Carver v. Jackson ex dem. Astor et al., 4 Pet. 1, 80 (1830); Magniac v. Thompson, 7 Pet. 348, 390 (1833); Mitchell v. Harmony, 13 How. 115, 131 (1852); Transportation Line v. Hope, 95 U.S. 297, 302 (1877).

[42] Games v. Dunn, 14 Pet. 322, 327 (1840).

[43] Sparf v. United States, 156 U.S. 51, 99-100 (1895); Pleasants v. Fant, 22 Wall. 116, 121 (1875); Randall v. Baltimore & Ohio R.R. Co., 109 U.S. 478, 482 (1883); Meehan v. Valentine, 145 U.S. 611, 625 (1892); Coughran v. Bigelow, 164 U.S. 301 (1896).

[44] Treat Mfg. Co. v. Standard Steel & Iron Co., 157 U.S. 674 (1895); Randall v. Baltimore & Ohio R.R. Co., 109 U.S. 478, 482 (1883) and cases there cited.

[45] Capital Traction Co. v. Hof, 174 U.S. 1, 13 (1899).

[46] Arkansas Land & Cattle Co. v. Mann, 130 U.S. 69, 74 (1889).

[47] Dimick v. Schiedt, 293 U.S. 474, 476-478 (1935).

[48] 228 U.S. 364 (1913).

[49] See Austin Wakeman Scott, Fundamentals of Procedure in Actions at Law (1922), 103 and articles there cited.

[50] Baltimore & C. Line v. Redman, 295 U.S. 654 (1935).

[51] Ibid. 661.

[52] Lyon v. Mutual Benefit Assn., 305 U.S. 484 (1939).

[53] 28 U.S.C.A. Sec. 724.

[54] Galloway v. United States, 319 U.S. 372 (1943).

[55] Ibid. 397. As a matter of fact, the case being a claim against the United States need not have been tried by a jury except for the allowance of Congress.

[56] Henderson's Distilled Spirits, 14 Wall. 44, 53 (1872). See also Rogers v. United States, 141 U.S. 548, 554 (1891); Parsons v. Armor, 3 Pet. 413 (1830); Campbell v. Boyreau, 21 How. 223 (1859).

[57] Baylis v. Travelers' Ins. Co., 113 U.S. 316, 321 (1885), holding it error for a judge, in absence of any waiver, to find the facts and render judgment thereon.

[58] Duignan v. United States, 274 U.S. 195, 198 (1927), holding jury trial waived by an appearance and participation in the trial without demanding a jury.

[59] Hodges v. Easton, 106 U.S. 408, 412 (1883).

[60] Aetna Insurance Co. v. Kennedy, 301 U.S. 389 (1937).

[61] See Justices of the Sup. Ct. v. United States ex rel. Murray, 9 Wall. 274 (1870); Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226, 242 (1897).

AMENDMENT 8

BAIL, FINES, AND OTHER PUNISHMENT FOR CRIME

Page Excessive bail 903 Excessive fines 904 Cruel and unusual punishments 904

PUNISHMENT FOR CRIME

Amendment 8

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

When the Bill of Rights was being debated in Congress, two members took exception to this proposal. One "objected to the words 'nor cruel and unusual punishment,' the import of them being too indefinite."[1] Another leveled a similar criticism at the entire amendment; "What is meant by the terms excessive bail? Who are to be the judges? What is understood by excessive fines? It lies with the court to determine. No cruel and unusual punishment is to be inflicted; it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we in future to be prevented from inflicting these punishments because they are cruel? If a more lenient mode of correcting vice and deterring others from the commission of it could be invented, it would be very prudent in the Legislature to adopt it; but until we have some security that this will be done, we ought not to be restrained from making necessary laws by any declaration of this kind."[2]

Excessive Bail

A United States District Court fixed the bail of twelve persons who were arrested on charge of conspiring to violate the Smith Act[3] at $50,000 each. This was on the theory advanced by the Government that each petitioner was a pawn in a conspiracy and in obedience to a superior would flee the jurisdiction, a theory to support which no evidence was introduced. The Court held that bail set before trial at a figure higher than reasonably calculated to assure the presence of defendant at his trial is "excessive" in the sense of the Eighth Amendment, and that the case of each defendant must be determined on its merits. Bail of larger amount than that usually fixed for serious crimes must be justified by evidence to the point.[4] But the power of the Attorney General, under Sec. 23 of the Internal Security Act of 1950,[5] to hold in custody without bail, at his discretion, pending determination as to their deportability, aliens who are members of the Communist Party of the United States, is not unconstitutional.[6]

Excessive Fines

The Supreme Court has had little to say with reference to excessive fines or bail. In an early case it held that it had no appellate jurisdiction to revise the sentence of an inferior court, even though the excessiveness of the fine was apparent on the face of the record.[7] In a dissenting opinion in United States ex rel. Milwaukee Publishing Co. v. Burleson,[8] Justice Brandeis intimated that the additional mailing costs incurred by a newspaper to which the second-class mailing privilege had been denied constituted, in effect, a fine for a past offense which, since it was made to grow indefinitely each day, was an unusual punishment interdicted by the Constitution.[9]

Cruel and Unusual Punishments

The ban against "cruel and unusual punishment" has received somewhat greater attention. In Wilkerson v. Utah[10] the Court observed that: "Difficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted, but it is safe to affirm that punishments of torture, ... and all others in the same line of unnecessary cruelty, are forbidden by that Amendment to the Constitution."[11] Shooting as a mode of executing the death penalty was sustained over the objection that it was cruel and unusual.

A partially successful effort has been made to enlarge the concept of unusual punishment to cover penalties which shock the sense of justice by their absolute or relative severity. Justice Field pointed the way for this development in his dissenting opinion in O'Neil v. Vermont,[12] wherein the majority refused to apply the Eighth Amendment to a State. With the concurrence of two other Justices he wrote that the amendment was directed "against all punishments which by their excessive length or severity are greatly disproportioned to the offenses charged."[13] Eighteen years later a divided Court condemned a Philippine statute prescribing fine and imprisonment of from twelve to twenty years for entry of a known false statement in a public record, on the ground that the gross disparity between this punishment and that imposed for other more serious fines made it cruel and unusual, and as such, repugnant to the Bill of Rights.[14] No constitutional infirmity was discovered in a measure punishing as a separate offense each act of placing a letter in the mails in pursuance of a single scheme to defraud.[15]

Notes

[1] 1 Annals of Congress 754 (1791).

[2] Ibid.

[3] 18 U.S.C. Sec. 371, 2385.

[4] Stack v. Boyle, 342 U.S. 1 (1951).

[5] 8 U.S.C.A. Sec. 156 (a) (1); 64 Stat. 1011.

[6] Carlson v. Landon, 342 U.S. 524 (1952).

[7] Ex parte Watkins, 7 Pet. 568, 574 (1833).

[8] 255 U.S. 407 (1921).

[9] Ibid. 435.

[10] 99 U.S. 130 (1879).

[11] Ibid. 135.

[12] 144 U.S. 323 (1892).

[13] Ibid. 339, 340.

[14] Weems v. United States, 217 U.S. 349, 371, 382 (1910).

[15] Badders v. United States, 240 U.S. 391 (1916). Cf. Donaldson v. Read Magazine, 333 U.S. 178, 191 (1948).

AMENDMENT 9

RIGHTS RETAINED BY THE PEOPLE

Amendment 9

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The only right which the Supreme Court has explicitly acknowledged as protected by this amendment is the right to engage in political activity. That recognition was accorded by way of dictum in United Public Workers v. Mitchell, where the powers of Congress to restrict the political activities of federal employees was sustained.[1] An argument that the competition of the TVA in selling electricity at rates lower than those previously charged by private companies serving the area amounted to an indirect regulation of the rates of those companies and a destruction of the liberty said to be guaranteed by the Ninth Amendment to the people of the States to acquire property and employ it in a lawful business, was summarily rejected.[2] Previously the Court had upheld the right of the TVA to sell electricity, saying that the Ninth Amendment did not withdraw the right expressly granted by section 3 of article IV to dispose of property belonging to the United States.[3]

Notes

[1] 330 U.S. 75, 94 (1947).

[2] Tennessee Electric Power Co. v. T.V.A., 306 U.S. 118, 143, 144 (1939).

[3] Ashwander v. T.V.A., 297 U.S. 288, 330, 331 (1936). See also the language of Justice Chase in Calder v. Bull, 3 Dall. 386, 388 (1798); and of Justice Miller for the Court in Loan Asso. v. Topeka, 20 Wall. 655, 662-663 (1874).

AMENDMENT 10

RESERVED STATE POWERS

Page Scope and purpose 915 The taxing power 916 The commerce power 917 Police power 918 State activities and instrumentalities 919

RESERVED STATE POWERS

Amendment 10

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Scope and Purpose

"The Tenth Amendment was intended to confirm the understanding of the people at the time the Constitution was adopted, that powers not granted to the United States were reserved to the States or to the people. It added nothing to the instrument as originally ratified * * *."[1] That this provision was not conceived to be a yardstick for measuring the powers granted to the Federal Government or reserved to the States was clearly indicated by its sponsor, James Madison, in the course of the debate which took place while the amendment was pending concerning Hamilton's proposal to establish a national bank. He declared that: "Interference with the power of the States was no constitutional criterion of the power of Congress. If the power was not given, Congress could not exercise it; if given, they might exercise it, although it should interfere with the laws, or even the Constitutions of the States."[2] Nevertheless, for approximately a century, from the death of Marshall until 1937, the Tenth Amendment was frequently invoked to curtail powers expressly granted to Congress, notably the powers to regulate interstate commerce, to enforce the Fourteenth Amendment and to lay and collect taxes.

The first, and logically the strongest, effort to set up the Tenth Amendment as a limitation on federal power was directed to the expansion of that power by virtue of the necessary and proper clause. In McCulloch v. Maryland,[3] the Attorney-General of Maryland cited the charges made by the enemies of the Constitution that it contained "* * * a vast variety of powers, lurking under the generality of its phraseology, which would prove highly dangerous to the liberties of the people, and the rights of the states, * * *" and he cited the adoption of the Tenth Amendment to allay these apprehensions, in support of his contention that the power to create corporations was reserved by that amendment to the States.[4] Stressing the fact that this amendment, unlike the cognate section of the Articles of Confederation, omitted the word "expressly" as a qualification of the powers granted to the National Government, Chief Justice Marshall declared that its effect was to leave the question "whether the particular power which may become the subject of contest has been delegated to the one government, or prohibited to the other, to depend upon a fair construction of the whole instrument."[5]

The Taxing Power

Not until after the Civil War was the idea that the reserved powers of the States comprise an independent qualification of otherwise constitutional acts of the Federal Government actually applied to nullify, in part, an act of Congress. This result was first reached in a tax case--Collector v. Day.[6] Holding that a national income tax, in itself valid, could not be constitutionally levied upon the official salaries of State officers, Justice Nelson made the sweeping statement that "* * * the States within the limits of their powers not granted, or, in the language of the Tenth Amendment, 'reserved,' are as independent of the general government as that government within its sphere is independent of the States."[7] In 1939, Collector v. Day was expressly overruled.[8] Nevertheless, the problem of reconciling State and national interests still confronts the Court occasionally, and was elaborately considered in New York v. United States,[9] where, by a vote of six-to-two, the Court upheld the right of the United States to tax the sale of mineral waters taken from property owned by a State. Speaking for four members of the Court, Chief Justice Stone justified the tax on the ground that "The national taxing power would be unduly curtailed if the State, by extending its activities, could withdraw from it subjects of taxation traditionally within it."[10] Justices Frankfurter and Rutledge found in the Tenth Amendment "* * * no restriction upon Congress to include the States in levying a tax exacted equally from private persons upon the same subject matter."[11] Justices Douglas and Black dissented, saying: "If the power of the federal government to tax the States is conceded, the reserved power of the States guaranteed by the Tenth Amendment does not give them the independence which they have always been assumed to have."[12]

The Commerce Power

A year before Collector v. Day was decided, the Court held invalid, except as applied in the District of Columbia and other areas over which Congress has exclusive authority, a federal statute penalizing the sale of dangerous illuminating oils.[13] The Court did not refer to the Tenth Amendment. Instead, it asserted that the "* * * express grant of power to regulate commerce among the States has always been understood as limited by its terms; and as a virtual denial of any power to interfere with the internal trade and business of the separate States; except, indeed, as a necessary and proper means for carrying into execution some other power expressly granted or vested."[14] Similarly, in the Employers' Liability Cases,[15] an act of Congress making every carrier engaged in interstate commerce liable to "any" employee, including those whose activities related solely to intrastate activities, for injuries caused by negligence, was held unconstitutional by a closely divided Court, without explicit reliance on the Tenth Amendment. Not until it was confronted with the Child Labor Law, which prohibited the transportation in interstate commerce of goods produced in establishments in which child labor was employed, did the Court hold that the State police power was an obstacle to adoption of a measure which operated directly and immediately upon interstate commerce. In Hammer v. Dagenhart,[16] five members of the Court found in the Tenth Amendment a mandate to nullify this law as an unwarranted invasion of the reserved powers of the States. This decision was expressly overruled in United States v. Darby.[17]

During the twenty years following Hammer v. Dagenhart, a variety of measures designed to regulate economic activities, directly or indirectly, were held void on similar grounds. Excise taxes on the profits of factories in which child labor was employed,[18] on the sale of grain futures on markets which failed to comply with federal regulations,[19] on the sale of coal produced by nonmembers of a coal code established as a part of a federal regulatory scheme,[20] and a tax on the processing of agricultural products, the proceeds of which were paid to farmers who complied with production limitations imposed by the Federal Government,[21] were all found to invade the reserved powers of the States. In Schechter Poultry Corporation v. United States[22] the Court, after holding that the commerce power did not extend to local sales of poultry, cited the Tenth Amendment to refute the argument that the existence of an economic emergency justified the exercise of what Chief Justice Hughes called "extraconstitutional authority."[23]

In 1941 the Court came full circle in its exposition of this amendment. Having returned to the position of John Marshall four years earlier when it sustained the Social Security[24] and National Labor Relations Acts,[25] it explicitly restated Marshall's thesis in upholding the Fair Labor Standards Act in United States v. Darby.[26] Speaking for a unanimous Court, Chief Justice Stone wrote: "The power of Congress over interstate commerce 'is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution.' * * * That power can neither be enlarged nor diminished by the exercise or non-exercise of state power. * * * It is no objection to the assertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attend the exercise of the police power of the states. * * * Our conclusion is unaffected by the Tenth Amendment which * * * states but a truism that all is retained which has not been surrendered."[27]

Police Power

But even prior to 1937 not all measures taken to promote objectives which had traditionally been regarded as the responsibilities of the States had been held invalid. In Hamilton v. Kentucky Distilleries Co.,[28] a unanimous Court, speaking by Justice Brandeis, upheld "War Prohibition", saying: "That the United States lacks the police power, and that this was reserved to the States by the Tenth Amendment, is true. But it is none the less true that when the United States exerts any of the powers conferred upon it by the Constitution, no valid objection can be based upon the fact that such exercise may be attended by the same incidents which attend the exercise by a State of its police power."[29] And in a series of cases, which today seem irreconcilable with Hammer v. Dagenhart, it sustained federal laws penalizing the interstate transportation of lottery tickets,[30] of women for immoral purposes,[31] of stolen automobiles,[32] and of tick-infested cattle.[33] It affirmed the power of Congress to punish the forgery of bills of lading purporting to cover interstate shipments of merchandise,[34] to subject prison made goods moved from one State to another to the laws of the receiving State,[35] and to regulate prescriptions for the medicinal use of liquor as an appropriate measure for the enforcement of the Eighteenth Amendment.[36] But while Congress might thus prevent the use of the channels of interstate commerce to frustrate State law, it could not itself, the Court held, undertake to punish a violation of that law by discriminatory taxation; and in United States v. Constantine,[37] a grossly disproportionate excise tax imposed on retail liquor dealers carrying on business in violation of local law was held unconstitutional.

State Activities and Instrumentalities

Today it is apparent that the Tenth Amendment does not shield the States nor their political subdivisions from the impact of the authority affirmatively granted to the Federal Government. It was cited to no avail in Case v. Bowles,[38] where a State officer was enjoined from selling timber on school lands at a price in excess of the maximum prescribed by the Office of Price Administration. When California violated the Federal Safety Appliance Act in the operation of the State Belt Railroad as a common carrier in interstate commerce it was held liable for the statutory penalty.[39] At the suit of the Attorney General of the United States, the Sanitary District of Chicago was enjoined from diverting water from Lake Michigan in excess of a specified rate. On behalf of a unanimous court, Justice Holmes wrote: "This is not a controversy among equals. The United States is asserting its sovereign power to regulate commerce and to control the navigable waters within its jurisdiction. * * * There is no question that this power is superior to that of the States to provide for the welfare or necessities of their inhabitants."[40] Some years earlier, in a suit brought by Kansas to prevent Colorado from using the waters of the Arkansas River for irrigation, the Attorney General of the United States had unsuccessfully advanced the claim that the Federal Government had an inherent legislative authority to deal with the matter. In a petition to intervene in the suit he had taken the position, as summarized by the Supreme Court, that "the National Government * * * has the right to make such legislative provision as in its judgment is needful for the reclamation of all these arid lands and for that purpose to appropriate the accessible waters. * * * All legislative power must be vested in either the state or the National Government; no legislative powers belong to a state government other than those which affect solely the internal affairs of that State; consequently all powers which are national in their scope must be found vested in the Congress of the United States."[41] The petition to intervene was dismissed on the ground that the authority claimed for the Federal Government was incompatible with the Tenth Amendment; but this could hardly happen today.[42] Under its superior power of eminent domain, the United States may condemn land owned by a State even where the taking will interfere with the State's own project for water development and conservation.[43] The rights reserved to the States are not invaded by a statute which requires a reduction in the amount of a federal grant-in-aid of the construction of highways upon failure of a State to remove from office a member of the State Highway Commission found to have violated federal law by participating in a political campaign.[44]

Federal legislation frequently has been challenged as an unconstitutional interference with the prerogative of the States to control the entities they create, but the attack has been successful only once, in Hopkins Federal Savings and Loan Association v. Cleary.[45] There an act of Congress authorizing the conversion of State building and loan associations without State consent was found to contravene the Tenth Amendment. Thirty years earlier, in Northern Securities Co. v. United States,[46] a closely divided Court had ruled that this amendment was no barrier to the application of the Sherman Antitrust Act to prevent one corporation from restraining commerce by means of stock ownership in two competing corporations. It announced the general proposition that: "No State can, by merely creating a corporation, or in any other mode, project its authority into other States, and across the continent, so as to prevent Congress from exerting the power it possesses under the Constitution over interstate and international commerce, or so as to exempt its corporation engaged in interstate commerce from obedience to any rule lawfully established by Congress for such commerce. It cannot be said that any State may give a corporation, created under its laws, authority to restrain interstate or international commerce against the will of the nation as lawfully expressed by Congress. Every corporation created by a State is necessarily subject to the supreme law of the land."[47] Even a charter contract between a State and an intrastate railroad, limiting the rates of the latter, is no barrier to enforcement of an order of the Interstate Commerce Commission requiring an increase in local rates to remove a discrimination against interstate commerce.[48] An order of the Federal Power Commission prescribing the methods of keeping the accounts of an electric company was sustained over the objection that it violated the reserved right of the States under the Tenth Amendment.[49] A similar objection to the levy of a special surtax on any corporation formed or availed of to prevent the imposition of a surtax upon its shareholders was rejected, since the taxing statute did not limit in any way the power of the corporations to declare or withhold dividends as permitted by State law.[50] Likewise, the Court held that the failure to allow a credit against the undistributed profits tax for earnings which could not be distributed under State law did not infringe the reserved power of the State over its corporate offspring.[51]

Notes

[1] United States v. Sprague, 282 U.S. 716, 733 (1931).

[2] II Annals of Congress 1897 (1791).

[3] 4 Wheat. 316 (1819).

[4] Ibid. 372.

[5] Ibid. 406.

[6] 11 Wall. 113 (1871).

[7] Ibid. 124.

[8] Graves v. O'Keefe, 306 U.S. 466 (1939).

[9] 326 U.S. 572 (1946).

[10] Ibid. 589.

[11] Ibid. 584.

[12] Ibid. 595.

[13] United States v. Dewitt, 9 Wall. 41 (1870).

[14] Ibid. 44.

[15] 207 U.S. 463 (1908). See also Keller v. United States, 213 U.S. 138 (1909).

[16] 247 U.S. 251 (1918).

[17] 312 U.S. 100, 116, 117 (1941).

[18] Bailey v. Drexel Furniture Co., 259 U.S. 20, 36, 38 (1922).

[19] Hill v. Wallace, 259 U.S. 44 (1922). See also Trusler v. Crooks, 269 U.S. 475 (1926).

[20] Carter v. Carter Coal Co., 298 U.S. 238 (1936).

[21] United States v. Butler, 297 U.S. 1 (1936).

[22] 295 U.S. 495 (1935).

[23] Ibid. 529.

[24] Steward Machine Co. v. Davis, 301 U.S. 548 (1937); Helvering v. Davis, 301 U.S. 619 (1937).

[25] National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).

[26] 312 U.S. 100 (1941). See also United States v. Carolene Products Co., 304 U.S. 144, 147 (1938); Case v. Bowles, 327 U.S. 92, 101 (1946).

[27] 312 U.S. 100, 114, 123, 124 (1941). See also Fernandez v. Wiener, 326 U.S. 340, 362 (1945).

[28] 251 U.S. 146 (1919).

[29] Ibid. 156.

[30] Champion v. Ames, 188 U.S. 321 (1903).

[31] Hoke v. United States, 227 U.S. 308 (1913).

[32] Brooks v. United States, 267 U.S. 432 (1925).

[33] Thornton v. United States, 271 U.S. 414 (1926).

[34] United States v. Ferger, 250 U.S. 199 (1919).

[35] Kentucky Whip & Collar Co. v. Illinois C.R. Co., 299 U.S. 334 (1937).

[36] Everhard's Breweries v. Day, 265 U.S. 545 (1924).

[37] 296 U.S. 287 (1935). The Civil Rights Act of 1875, which made it a crime for one person to deprive another of equal accommodations at inns, theaters or public conveyances was found to exceed the powers conferred on Congress by the Thirteenth and Fourteenth Amendments, and hence to be an unlawful invasion of the powers reserved to the States by the Tenth--Civil Rights Cases, 109 U.S. 3, 15 (1883).

[38] 327 U.S. 92, 102 (1946).

[39] United States v. California, 297 U.S. 175 (1936).

[40] Sanitary District of Chicago v. United States, 266 U.S. 405, 425, 426 (1925).

[41] Kansas v. Colorado, 206 U.S. 46, 87, 89 (1907).

[42] See United States v. Appalachian Electric Power Co., 311 U.S. 377 (1940).

[43] Oklahoma v. Atkinson Co., 313 U.S. 508, 534 (1941).

[44] Oklahoma v. United States Civil Service Commission, 330 U.S. 127, 142-144 (1947).

[45] 296 U.S. 315 (1935).

[46] 193 U.S. 197 (1904).

[47] Ibid. 345, 346.

[48] New York v. United States, 257 U.S. 591 (1922).

[49] Northwestern Electric Co. v. Federal Power Commission, 321 U.S. 119 (1944). See also Federal Power Commission v. East Ohio Gas Company, 338 U.S. 404 (1950).

[50] Helvering v. National Grocery Co., 304 U.S. 282 (1938).

[51] Helvering v. Northwest Steel Mills, 311 U.S. 46 (1940).

AMENDMENT 11

SUITS AGAINST STATES

Page Purpose and early interpretation 929 Expansion of state immunity 930 Suits against state officials: two categories 930 Mandamus proceedings 932 Early limitation on injunction proceedings 932 Injunction proceedings today: Ex parte Young 933 Tort action against state officials 934 Suits to recover taxes 935 Consent of State to be sued 935 Waiver of immunity 936

SUITS AGAINST STATES

Amendment 11

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Purpose and Early Interpretation

The action of the Supreme Court in accepting jurisdiction of a suit against a State by a citizen of another State in 1793, in Chisholm v. Georgia[1] provoked such angry reactions in Georgia and such anxieties in other States that at the first meeting of Congress after this decision what became the Eleventh Amendment was proposed by an overwhelming vote and ratified with "vehement speed."[2] The earliest decisions interpretative of the amendment were three by Chief Justice Marshall. In Cohens v. Virginia,[3] speaking for the Court, he held that the prosecution of a writ of error to review a judgment of a State court, alleged to be in violation of the Constitution or laws of the United States, "does not commence or prosecute a suit against the State," but continues one commenced by the State. The contrary holding would have virtually repealed the 25th Section of the Judiciary Act of 1789 (see p. 554), and brought something like anarchy in its wake. In Osborn v. Bank of the United States,[4] decided three years later, the Court laid down two rules, one of which has survived and the other of which was soon abandoned. The latter was the holding that a suit is not one against a State unless the State is a party to the record.[5] This rule the Court was forced to repudiate seven years later in Governor of Georgia v. Madrazo,[6] in which it was conceded that the suit had been brought against the governor solely in his official capacity and with the design of forcing him to exercise his official powers. It is now a well-settled rule that in determining whether a suit is prosecuted against a State "the Court will look behind and through the nominal parties on the record to ascertain who are the real parties to the suit."[7] The other, more successful rule was that a State official possesses no official capacity when acting illegally and hence can derive no protection from an unconstitutional statute of a State.[8]

Expansion of State Immunity

Subsequent cases giving the amendment a restrictive effect are those holding that counties and municipalities are suable in the federal courts;[9] and that government corporations of the State are not immune when suable under the law which created them.[10] Meantime other cases have expanded the prohibitions of the amendment to include suits brought against a State by its own citizens,[11] by a foreign state,[12] by a federally chartered corporation,[13] or by a State as an agent of its citizens to collect debts owed them by another State.[14] These rulings are based on the premise expressed in Hans v. Louisiana[15] that the amendment "actually reversed the decision" in Chisholm v. Georgia and, as Chief Justice Hughes indicated in Monaco v. Mississippi,[16] had the effect of prohibiting any suit against a State without its consent except when brought by the United States[17] or another State.

Suits Against State Officials: Two Categories

Most of the cases involving the Eleventh Amendment and those creating the greatest difficulties are suits brought against State officials. Such suits are governed by the same rules and principles as pertain to the immunity of the United States itself from suits,[18] with the result that the rules of governmental immunity from suit generally are grounded on decisions arising under both article III and the Eleventh Amendment without distinction as to whether a suit is against the United States or a State.[19] The line is not always easy to draw, nor are the cases always strictly consistent. They do yield, however, to the formulation of certain general rules. Thus, suits brought against State officials acting either in excess of their statutory authority[20] or in pursuance of an unconstitutional statute[21] are suits against the officer in his individual capacity and therefore are not prohibited by the Eleventh Amendment; and suits against an officer for the commission of a common law tort alleged to be justified by a statute or administrative order of the State belong to the same category.[22] On the other hand, suits against the officers of a State involving what is conceded to be State property or suits asking for relief which clearly call for the exercise of official authority cannot be sustained.[23]

Mandamus Proceedings

Thus mandamus proceedings which seek "affirmative official action" on the part of State officials as "the performance of an obligation which belongs to the State in its political capacity"[24] are uniformly regarded as suits against the State. This rule is well illustrated by Louisiana ex rel. Elliott v. Jumel[25] where a holder of Louisiana State bonds sought to compel the State treasurer to apply a sinking fund that had been created under an earlier constitution for the payment of the bonds to such purpose after a new constitution had abolished this provision for retiring the bonds. The proceeding was held to be a suit against the State because: "The relief asked will require the officers against whom the process is issued to act contrary to the positive orders of the supreme political power of the State, whose creatures they are, and to which they are ultimately responsible in law for what they do. They must use the public money in the treasury and under their official control in one way, when the supreme power has directed them to use it in another, and they must raise more money by taxation when the same power has declared that it shall not be done."[26] However, mandamus proceedings to compel a State official to perform a plain or ministerial duty which admits of no discretion are not suits against the State since the official is regarded as acting in his individual capacity in failing to act according to law.[27]

Early Limitation on Injunction Proceedings

In spite of a dictum by Justice Bradley in the McComb Case that the writs of mandamus and injunction are somewhat correlative to each other in suits against State officials for illegal actions,[28] injunctions against State officials to restrain the enforcement of an unconstitutional statute or action in excess of statutory authority are more readily obtainable. They constitute in fact the single largest class of cases involving the issue of State immunity. Until Reagan v. Farmers' Loan and Trust Company[29] the Court maintained a distinction between the duty imposed upon an official by the general laws of the State and the duty imposed by a specific unconstitutional statute and held that whereas an injunction would not lie to restrain a State official from enforcing an act alleged to be unconstitutional in pursuance of the general duties of his office, it would lie to restrain him from performing special duties vested in him by an unconstitutional statute.[30] The leading cases assertive of this distinction are Ex parte Ayers and Fitts v. McGhee, decided respectively in 1887 and 1899.[31]

Injunction Proceedings Today: Ex parte Young

However, the distinction between injunction suits to restrain an official from pursuing his general duties under the law and those to restrain the performance of special duties under an unconstitutional statute had been largely lost even before Fitts v. McGhee, in Reagan v. Farmers' Loan and Trust Company[32] and Smyth v. Ames,[33] where injunctions issued by the lower federal courts to restrain the enforcement of railroad rate regulations were sustained even though the officials against whom the suits were brought were acting under general law. What remained of the distinction as a limitation upon suits against State officials was dispelled by Ex parte Young,[34] which not only sustained an injunction restraining State officials from exercising their discretionary duties but also upheld the authority of the lower court to enjoin the enforcement of the statute prior to a determination of its unconstitutionality. While Ex parte Ayers and Fitts v. McGhee[35] were not overruled, the inevitable effect of the Young Case was to abrogate the rule that a suit in equity against a State official to enjoin discretionary action is a suit against the State, and to convert the injunction into a device to test the validity of State legislation in the federal courts prior to its interpretation in the State courts and prior to any opportunity for State officials to put the act into operation.[36]

But the earlier rule still crops up at times. Thus as recently as 1937, Ex parte Ayers[37] was applied to the interpretation of the Federal Interpleader Act,[38] so as to prevent taxpayers from enjoining tax officials from collecting death taxes arising from the competing claims of two States as being the last domicile of a decedent.[39] On the other hand, the Eleventh Amendment was held not to be infringed by joinder of a State court judge and receiver in an interpleader proceeding in which the State had no interest and neither the judge nor the receiver was enjoined by the final decree.[40]

Tort Actions Against State Officials

In tort actions against State officials the rule of United States v. Lee[41] has been substantially incorporated into the Eleventh Amendment. In Tindal v. Wesley[42] the Lee Case was held to permit a suit by claimants to real property in South Carolina which they had purchased from the State sinking fund commission but which had been retaken by the State because the purchaser insisted on paying for the property with revenue bond scrip issued by the State. In other cases the Court had held that the immunity of a State from suit does not extend to actions against State officials for damages arising out of willful and negligent disregard of State laws.[43]

Suits to Recover Taxes

Recent decisions, however, have rendered suits against State officials to recover taxes increasingly difficult to maintain. Although the Court long ago held that the sovereign immunity of the State prevented a suit to recover money in the general treasury,[44] it also held that a suit would lie against a revenue officer to recover tax moneys illegally collected and still in his possession.[45] Beginning, however, with Great Northern Life Insurance Co. v. Read[46] in 1944 the Court has held that this kind of suit cannot be maintained unless the State expressly consents to suits in the federal courts. In this case the State statute provided for the payment of taxes under protest and for suits afterwards against State tax collection officials for the recovery of taxes illegally collected. The act also provided for the segregation by the collector of taxes paid under protest. The Read Case has been followed in two more recent cases[47] involving a similar state of facts, with the result that the rule once permitting such suits to recover taxes from a segregated fund has been distinguished away.

Consent of State to be Sued

Although dicta in some cases suggested that once a State consented generally to be sued in a court of competent jurisdiction,[48] suits could be maintained against it in the federal courts, later decisions involving statutory provisions for the payment of taxes under protest followed by a suit in a court of competent jurisdiction to recover do not authorize suits in the federal courts. These rulings are based on the assumption that when the court is dealing "with the sovereign exemption from judicial interference in the vital field of financial administration a clear declaration of the State's intention to submit its fiscal problems to other courts than those of its own creation must be found."[49] Long before these decisions it had been settled that a State could confine to its own courts suits against it to recover taxes.[50] Thus the questions involved in the cases laying down the above rule concerned only the lack of an express consent to suit in the federal courts.

Waiver of Immunity

The immunity of a State from suit is a privilege which it may waive at pleasure by voluntary submission to suit,[51] as distinguished from appearing in a similar suit to defend its officials,[52] and by general law specifically consenting to suit in the federal courts. Such consent must be clear and specific and consent to suit in its own courts does not imply a waiver of immunity in the federal courts.[53] It follows, therefore, that in consenting to be sued, the States, like the National Government, may attach such conditions to suit as they deem fit.

Notes

[1] 2 Dall. 419 (1793).

[2] Justice Frankfurter dissenting in Larson v. Domestic & Foreign Corp., 337 U.S. 682, 708 (1949).

[3] 6 Wheat. 264, 411-412 (1821).

[4] 9 Wheat. 738 (1824).

[5] Ibid. 850-858.

[6] 1 Pet. 110 (1828).

[7] Ex parte Ayers, 123 U.S. 443, 487 (1887).

[8] Osborn v. Bank of the United States, 9 Wheat. at 858, 859, 868.

[9] Lincoln County v. Luning, 133 U.S. 529 (1890).

[10] Hopkins v. Clemson Agricultural College, 221 U.S. 636 (1911). See also Bank of the United States v. Planters' Bank of Georgia, 9 Wheat. 904 (1824), where a State bank was held liable to suit although the State owned a portion of its stock, and Briscoe v. Bank of Kentucky, 11 Pet. 257 (1837), and Bank of Kentucky v. Wister, 2 Pet. 318 (1829), where the State bank was held liable to suit even though the State owned all of the stock. Compare, however, Murray v. Wilson Distilling Co., 213 U.S. 151 (1909), which held that a State in engaging in the retail liquor business does not surrender its immunity to suit for transaction of a nongovernmental nature. Here the State conducted the business directly rather than through the medium of a corporation.

[11] Hans v. Louisiana, 134 U.S. 1 (1890); Fitts v. McGhee, 172 U.S. 516, 524 (1899); Duhne v. New Jersey, 251 U.S. 311, 313 (1920); Ex parte New York, 256 U.S. 490 (1921).

[12] Monaco v. Mississippi, 292 U.S. 313, 329 (1934).

[13] Smith v. Reeves, 178 U.S. 436 (1900).

[14] New Hampshire v. Louisiana, 108 U.S. 76 (1883). However, this rule does not preclude a suit by a State to collect debts which have been assigned to it and the proceeds of which will remain with it. South Dakota v. North Carolina, 192 U.S. 286 (1904)

[15] 134 U.S. 1, 11 (1890).

[16] 292 U.S. 313, 328-332 (1934).

[17] For the liability of the States to suit by the United States see the discussion of the right of the United States to sue under article III, Sec. 2, supra, pp. 584-585.

[18] Tindal v. Wesley, 167 U.S. 204, 213 (1897). This case applied the rule of United States v. Lee, 106 U.S. 196 (1882), to suits against States.

[19] See for example Larson v. Domestic & Foreign Corp., 337 U.S. 682 (1949), where both the majority and dissenting opinions utilize both types of cases in a suit against a federal official.

[20] Pennoyer v. McConnaughy, 140 U.S. 1 (1891); Scully v. Bird, 209 U.S. 481 (1908); Atchison, Topeka & S.F.R. Co. v. O'Connor, 223 U.S. 280 (1912); Greene v. Louisville & I.R. Co., 244 U.S. 499 (1917); Louisville & Nashville R. Co. v. Greene, 244 U.S. 522 (1917).

[21] Osborn v. Bank of the United States, 9 Wheat. 728 (1824); Board of Liquidation v. McComb, 92 U.S. 531 (1876); Poindexter v. Greenhow, 114 U.S. 270 (1885); Pennoyer v. McConnaughy, 140 U.S. 1 (1891); Reagan v. Farmers' Loan & Trust Co., 154 U.S. 362 (1894); Smyth v. Ames, 169 U.S. 466 (1898); Ex parte Young, 209 U.S. 123 (1908); Truax v. Raich, 239 U.S. 33 (1915); Public Service Co. v. Corboy, 250 U.S. 153 (1919); Sterling v. Constantin, 287 U.S. 378 (1932); Davis v. Gray, 16 Wall. 203 (1873); Tomlinson v. Branch, 15 Wall. 460 (1873); Litchfield v. Webster Co., 101 U.S. 773 (1880); Allen v. Baltimore & O.R. Co., 114 U.S. 311 (1885); Gunter v. Atlantic C.L.R. Co., 200 U.S. 273 (1906); Prout v. Starr, 188 U.S. 537 (1903); Scott v. Donald, 165 U.S. 58; also 165 U.S. 107 (1897).

[22] South Carolina v. Wesley, 155 U.S. 542 (1895); Tindal v. Wesley, 167 U.S. 204 (1897); Hopkins v. Clemson Agricultural College, 221 U.S. 636 (1911). In this last case the Court held that a suit would lie against the State Agricultural College, and relief could be granted to the extent that it would not affect the property rights of the State. These cases involve such matters as the seizure and distraint of property, wrongs done by government corporations, etc.

[23] See for example Governor of Georgia v. Madrazo, 1 Pet. 110 (1828); Cunningham v. Macon and Brunswick R. Co., 109 U.S. 446 (1883); Louisiana ex rel. Elliott v. Jumel, 107 U.S. 711 (1883); Hagood v. Southern, 117 U.S. 52 (1886); Chandler v. Dix, 194 U.S. 590 (1904); Murray v. Wilson Distilling Co., 213 U.S. 151 (1909); Hopkins v. Clemson Agricultural College, 221 U.S. 636 (1911); Lankford v. Platte Iron Works, 235 U.S. 461 (1915); Carolina Glass Co. v. South Carolina, 240 U.S. 305 (1916); Kennecott Copper Corp. v. State Tax Commission, 327 U.S. 573 (1946).

[24] Hagood v. Southern, 117 U.S. 52, 70 (1886). See also Pennoyer v. McConnaughy, 140 U.S. 1, 10 (1891) where Justice Lamar also emphasizes the operation of the judgment against the State itself.

[25] 107 U.S. 711, 721 (1883). See also Christian v. Atlantic & N.C.R. Co., 133 U.S. 233 (1890).

[26] Louisiana ex rel. Elliott v. Jumel, 107 U.S. 711, 721 (1883).

[27] Board of Liquidation v. McComb, 92 U.S. 531, 541 (1876). This was a case involving an injunction, but Justice Bradley regarded mandamus and injunction as correlative to each other in cases where the official unlawfully commits or omits an act. See also Rolston v. Missouri Fund Commissioners, 120 U.S. 390, 411 (1887), where it is held that an injunction would lie to restrain the sale of a railroad on the ground that a suit to compel a State official to do what the law requires of him is not a suit against the State. See also Houston v. Ormes, 252 U.S. 469 (1920).

[28] Board of Liquidation v. McComb, 92 U.S. 531, 541 (1876).

[29] 154 U.S. 362 (1894).

[30] Poindexter v. Greenhow, 114 U.S. 270 (1885); Allen v. Baltimore & O.R. Co., 114 U.S. 311 (1885); Pennoyer v. McConnaughy, 140 U.S. 1 (1891); In re Tyler, 149 U.S. 164 (1893). As stated by Justice Harlan in Fitts v. McGhee, 172 U.S. 516, 529-530 (1899), "There is a wide difference between a suit against individuals, holding official positions under a State, to prevent them, under the sanction of an unconstitutional statute, from committing by some positive act a wrong or trespass, and a suit against officers of a State merely to test the constitutionality of a state statute, in the enforcement of which those officers will act only by formal judicial proceedings in the courts of the State." See also North Carolina v. Temple, 134 U.S. 22 (1890).

[31] See 123 U.S. 443; and 172 U.S. 516.

[32] 154 U.S. 362 (1894).

[33] 169 U.S. 466 (1898).

[34] 209 U.S. 123 (1908).

[35] 123 U.S. 443 (1887); 172 U.S. 516 (1899).

[36] For cases following Ex parte Young, see Home Telephone & Telegraph Co. v. Los Angeles, 227 U.S. 278 (1913); Truax v. Raich, 239 U.S. 33 (1915); Cavanaugh v. Looney, 248 U.S. 453 (1919); Terrace v. Thompson, 263 U.S. 197 (1923); Hygrade Provision Co. v. Sherman, 266 U.S. 497 (1925); Massachusetts State Grange v. Benton, 272 U.S. 525 (1926); Hawks v. Hamill, 288 U.S. 52 (1933). These last cases, however, emphasize "manifest oppression" as a prerequisite to issuance of such injunctions. See also Fenner v. Boykin, 271 U.S. 240 (1926), where an injunction to restrain the enforcement of a State law penalizing gambling contracts was denied. The rule of Ex parte Young applies equally to the governor of a State in the enforcement of an unconstitutional statute. Continental Baking Co. v. Woodring, 286 U.S. 352 (1932); Sterling v. Constantin, 287 U.S. 378 (1932). Joseph D. Block, "Suit Against Government Officers and the Sovereign Immunity Doctrine," 59 Harv. L. Rev. 1060, 1078 (1946), points out that Ex parte Young is enunciating the doctrine that an official proceeding unconstitutionally is "stripped of his official ... character" has given impetus to the fiction that the suit must be against the officer as an individual to be permissible under the Eleventh Amendment. Two recent cases in which Ex parte Young was followed are Alabama Comm'n v. Southern R. Co., 341 U.S. 341, 344 (1951); and Georgia R. v. Redwine, 342 U.S. 299, 304-305 (1952).

[37] 123 U.S. 443 (1887). See also Larson v. Domestic and Foreign Corp., 337 U.S. 682, 687-688 (1949).

[38] 49 Stat. 1096 (1936).

[39] Worcester County Trust Co. v. Riley, 302 U.S. 292 (1937); see also Old Colony Trust Co. v. Seattle, 271 U.S. 426 (1926).

[40] Treinies v. Sunshine Mining Co., 308 U.S. 66 (1939). See also Missouri v. Fiske, 290 U.S. 18 (1933).

[41] 106 U.S. 196 (1882).

[42] 167 U.S. 204 (1897).

[43] Johnson v. Lankford, 245 U.S. 541 (1918); Martin v. Lankford, 245 U.S. 547 (1918).

[44] Smith v. Reeves, 178 U.S. 436 (1900).

[45] Atchison, Topeka & S.F.R. Co. v. O'Connor, 223 U.S. 280 (1912).

[46] 322 U.S. 47 (1944).

[47] Ford Motor Co. v. Dept. of Treasury of Indiana, 323 U.S. 459 (1945); Kennecott Copper Corp. v. State Tax Commission, 327 U.S. 573 (1946).

[48] Lincoln County v. Luning, 133 U.S. 529 (1890); Hopkins v. Clemson Agricultural College, 221 U.S. 636 (1911).

[49] Great Northern Ins. Co. v. Read, 322 U.S. 47, 54 (1944); Ford Motor Co. v. Dept. of Treasury of Indiana, 323 U.S. 459 (1945); Kennecott Copper Corp. v. State Tax Commission, 327 U.S. 573 (1946).

[50] Smith v. Reeves, 178 U.S. 436 (1900). See also Murray v. Wilson Distilling Co., 213 U.S. 151 (1909); Chandler v. Dix, 194 U.S. 590 (1904).

[51] Clark v. Barnard, 108 U.S. 436, 447 (1883); Ashton v. Cameron County Water Improvement Dist., 298 U.S. 513, 531 (1936).

[52] Farish v. State Banking Board, 235 U.S. 498 (1915); Missouri v. Fiske, 290 U.S. 18 (1933).

[53] Murray v. Wilson Distilling Co., 213 U.S. 151, 172 (1909), citing Smith v. Reeves, 178 U.S. 436 (1900); Chandler v. Dix, 194 U.S. 590 (1904). See also Graves v. Texas Co., 298 U.S. 393, 403-404 (1936).

AMENDMENT 12

ELECTION OF PRESIDENT

Page Purpose and operation of the amendment 942 Electors as free agents 942

ELECTION OF PRESIDENT

Amendment 12

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;--The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;--The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March[1] next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.[2]--The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

Purpose and Operation of the Amendment

This amendment, which supersedes clause 3 of section 1 of article II, of the original Constitution, was inserted on account of the tie between Jefferson and Burr in the election of 1800. The difference between the procedure which it defines and that which was laid down in the original Constitution is in the provision it makes for a separate designation by the Electors of their choices for President and Vice President, respectively. The final sentence of clause 1, above, has been in turn superseded today by Amendment XX. In consequence of the disputed election of 1876, Congress, by an act passed in 1887, has laid down the rule that if the vote of a State is not certified by the governor under the seal thereof, it shall not be counted unless both Houses of Congress are favorable.[3] It should be noted that no provision is made by this Amendment for the situation which would result from a failure to choose either a President or Vice President, an inadequacy which Amendment XX undertakes to cure.

Electors as Free Agents

Acting under the authority of state law, the Democratic Committee of Alabama adopted a rule requiring that a party candidate for the office of Presidential Elector take a pledge to support the nominees of the party's National Convention for President and Vice President and that the party's officers refuse to certify as a candidate for such office any person who, otherwise qualified, refused to take such a pledge. One Blair did so refuse and was upheld, in mandamus proceedings, by the State Supreme Court, which ordered the Chairman of the State Democratic Executive Committee to certify him to the Secretary of State as a candidate for the office of Presidential Elector in the Democratic Primary to be held on May 6, 1952. The Supreme Court at Washington granted certiorari and reversed this holding.[4] The constitutional issue arose out of the Alabama Court's findings that the required pledge was incompatible with the Twelfth Amendment, which contemplated that Electors, once appointed, should be absolutely free to vote for any person who was constitutionally eligible to the office of President or Vice President.[5] This position the Supreme Court combatted as follows: "It is true that the Amendment says the electors shall vote by ballot. But it is also true that the Amendment does not prohibit an elector's announcing his choice beforehand, pledging himself. The suggestion that in the early elections candidates for electors--contemporaries of the Founders--would have hesitated, because of constitutional limitations, to pledge themselves to support party nominees in the event of their selection as electors is impossible to accept. History teaches that the electors were expected to support the party nominees. Experts in the history of government recognize the longstanding practice. Indeed, more than twenty states do not print the names of the candidates for electors on the general election ballot. Instead, in one form or another, they allow a vote for the presidential candidate of the national conventions to be counted as a vote for his party's nominees for the electoral college. This long-continued practical interpretation of the constitutional propriety of an implied or oral pledge of his ballot by a candidate for elector as to his vote in the electoral college weighs heavily in considering the constitutionality of a pledge, such as the one here required, in the primary. However, even if such promises of candidates for the electoral college are legally unenforceable because violative of an assumed constitutional freedom of the elector under the Constitution, Art. II, Sec. 1, to vote as he may choose in the electoral college, it would not follow that the requirement of a pledge in the primary is unconstitutional. A candidacy in the primary is a voluntary act of the applicant. He is not barred, discriminatorily, from participating but must comply with the rules of the party. Surely one may voluntarily assume obligations to vote for a certain candidate. The state offers him opportunity to become a candidate for elector on his own terms, although he must file his declaration before the primary. Ala. Code, Tit. 17, Sec. 145. Even though the victory of an independent candidate for elector in Alabama cannot be anticipated, the state does offer the opportunity for the development of other strong political organizations where the need is felt for them by a sizable block of voters. Such parties may leave their electors to their own choice. We conclude that the Twelfth Amendment does not bar a political party from requiring the pledge to support the nominees of the National Convention. Where a state authorizes a party to choose its nominees for elector in a party primary and to fix the qualifications for the candidates, we see no federal constitutional objection to the requirement of this pledge."[6] Justice Jackson conceding that "as an institution the Electoral College suffered atrophy almost indistinguishable from rigor mortis," nevertheless dissented on the following ground: "It may be admitted that this law does no more than to make a legal obligation of what has been a voluntary general practice. If custom were sufficient authority for amendment of the Constitution by Court decree, the decision in this matter would be warranted. Usage may sometimes impart changed content to constitutional generalities, such as 'due process of law,' 'equal protection,' or 'commerce among the states.' But I do not think powers or discretions granted to federal officials by the Federal Constitution can be forfeited by the Court for disuse. A political practice which has its origin in custom must rely upon custom for its sanctions."[7]

Notes

[1] By the Twentieth Amendment, adopted in 1933, the term of the President is to begin on the 20th of January.

[2] Under the Twentieth Amendment, Sec. 3, in case a President is not chosen before the time for beginning of his term, the Vice President-elect shall act as President, until a President shall have qualified.

[3] 3 U.S.C.A. Sec. 17.

[4] Ray v. Blair, 343 U.S. 214 (1952).

[5] Ibid. 218-219.

[6] Ibid. 228-231.

[7] Ibid. 232-233.

AMENDMENT 13

SLAVERY AND INVOLUNTARY SERVITUDE

Page Origin and purpose of the amendment 949 Peonage 950 Discriminations and legal compulsions less than servitude 951 Enforcement 953

SLAVERY AND INVOLUNTARY SERVITUDE

Amendment 13

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

Origin and Purpose of the Amendment

"The language of the Thirteenth Amendment," which "reproduced the historic words of the ordinance of 1787 for the government of the Northwest Territory, and gave them unrestricted application within the United States,"[1] was first construed in the Slaughter-House Cases.[2] Presented there with the contention that a Louisiana statute, by conferring upon a single corporation the exclusive privilege of slaughtering cattle in New Orleans, had imposed an unconstitutional servitude on the property of other butchers disadvantaged thereby, the Court expressed its inability, even after "a microscopic search," to find in said amendment any "reference to servitudes, which may have been attached to property in certain localities * * *." On the contrary, the term "servitude" appearing therein was declared to mean "a personal servitude * * * [as proven] by the use of the word 'involuntary,' which can only apply to human beings. * * * The word servitude is of larger meaning than slavery, * * *, and the obvious purpose was to forbid all shades and conditions of African slavery." But while the Court was initially in doubt as to whether persons other than negroes could share in the protection afforded by this amendment, it nevertheless conceded that although "* * * negro slavery alone was in the mind of the Congress which proposed the thirteenth article, [the latter] forbids any other kind of slavery, now or hereafter. If Mexican peonage or the Chinese coolie labor system shall develop slavery of the Mexican or Chinese race within our territory, this amendment may safely be trusted to make it void."[3] All uncertainty on this score was dispelled in later decisions; and in Hodges v. United States[4] the Justices proclaimed unequivocally that the Thirteenth Amendment is "not a declaration in favor of a particular people. It reaches every race and every individual, and if in any respect it commits one race to the nation, it commits every race and every individual thereof. Slavery or involuntary servitude of the Chinese, of the Italian, of the Anglo-Saxon are as much within its compass as slavery or involuntary servitude of the African."[5]

Peonage

Notwithstanding its early acknowledgment in the Slaughter-House Cases that peonage was comprehended within the slavery and involuntary servitude proscribed by the Thirteenth Amendment,[6] the Court has had frequent occasion to determine whether State legislation or the conduct of individuals has contributed to reestablishment of that prohibited status. Defined as a condition of enforced servitude by which the servitor is compelled to labor in liquidation of some debt or obligation, either real or pretended, against his will, peonage was found to have been unconstitutionally sanctioned by an Alabama statute, directed at defaulting sharecroppers, which imposed a criminal liability and subjected to imprisonment farm workers or tenants who abandoned their employment, breached their contracts, and exercised their legal right to enter into employment of a similar nature with another person. The clear purpose of such a statute was declared to be the coercion of payment, by means of criminal proceedings, of a purely civil liability arising from breach of contract.[7] Several years later, in Bailey v. Alabama,[8] the Court voided another Alabama statute which made the refusal without just cause to perform the labor called for in a written contract of employment, or to refund the money or pay for the property advanced thereunder, prima facie evidence of an intent to defraud and punishable as a criminal offense; and which was enforced subject to a local rule of evidence which prevented the accused, for the purpose of rebutting the statutory presumption, from testifying as to his "uncommunicated motives, purpose, or intention." Inasmuch as a State "may not compel one man to labor for another in payment of a debt by punishing him as a criminal if he does not perform the service or pay the debt," the Court refused to permit it "to accomplish the same result [indirectly] by creating a statutory presumption which, upon proof of no other fact, exposes him to conviction."[9] In 1914, in United States v. Reynolds,[10] a third Alabama enactment was condemned as conducive to peonage through the permission it accorded to persons, fined upon conviction for a misdemeanor, to confess judgment with a surety in the amount of the fine and costs, and then to agree with said surety, in consideration of the latter's payment of the confessed judgment, to reimburse him by working for him upon terms approved by the court, which, the Court pointed out, might prove more onerous than if the convict had been sentenced to imprisonment at hard labor in the first place. Fulfillment of such a contract with the surety was viewed as being virtually coerced by the constant fear it induced of rearrest, a new prosecution, and a new fine for breach of contract, which new penalty the convicted person might undertake to liquidate in a similar manner attended by similar consequences. More recently, Bailey v. Alabama has been followed in Taylor v. Georgia[11] and Pollock v. Williams,[12] in which statutes of Georgia and Florida not materially different from that voided in the Bailey Case, were found to be unconstitutional. Although the Georgia statute prohibited the defendant from testifying under oath, it did not prevent him from entering an unsworn denial both of the contract and of the receipt of any cash advancement thereunder, a factor which, the Court emphasized, was no more controlling than the customary rule of evidence in the Bailey Case. In the Florida Case, notwithstanding the fact that the defendant pleaded guilty and accordingly obviated the necessity of applying the prima facie presumption provision, the Court reached an identical result, chiefly on the ground that the presumption provision, despite its nonapplication, "had a coercive effect in producing the plea of guilty."

Discriminations and Legal Compulsions Less Than Servitude

A contention of "involuntary servitude" was rejected in the following cases:

(1) Racial discrimination. Denial of admission to public places, such as inns, restaurants, or theaters, or the segregation of races in public conveyances, etc., was held not to give rise to a "condition of enforced compulsory service of one to another," and effected no deprivation of one's legal right to dispose of his person, property, and services. Even prior to the amendment, such discriminations had never been "regarded as badges of slavery"; and it was not "the intent of the amendment to denounce every act which was wrong if done to a free man and yet justified in a condition of slavery."[13] Likewise, individuals who conspired to prevent citizens of African descent, because of their race or color, from making or carrying out contracts of labor, and so from pursuing a common calling, were not deemed to have reduced negroes to a condition of involuntary servitude; and hence a federal statute which penalized such a conspiracy was declared to be in excess of the enforcement powers vested in Congress by the Thirteenth Amendment.[14]

(2) "Services which have from time immemorial been treated as exceptional." Thus, contracts of seamen, which have from earliest historical times been treated as exceptional, and involving, to a certain extent, the surrender of personal liberty may be enforced without regard to the amendment.[15]

(3) "Enforcement of those duties which individuals owe the State, such as services in the army, militia, on the jury, etc." Thus, "a State has inherent power to require every able-bodied man within its jurisdiction to labor for a reasonable time on public roads near his residence without direct compensation."[16] Similarly, the exaction by Congress of enforced military duty from citizens of the United States, as was done by the Selective Service Act of May 18, 1917 (40 Stat. 76); and the requirement, under the Selective Training and Service Act of 1940 (50 U.S.C.A. App. Sec. 305 (g)), that conscientious objectors be assigned to work of national importance under civilian direction, were held not to contravene the Thirteenth Amendment.[17]

(4) A State law which made it a misdemeanor for a lessor, or his agent or janitor, intentionally to fail to furnish such water, heat, light, elevator, telephone, or other service as may be required by the terms of the lease and necessary to the proper and customary use of the building, did not create an involuntary servitude.[18]

(5) Section 506 (a) of the Communications Act (47 U.S.C.A. Sec. 506) making it unlawful to coerce, compel, or constrain a licensee to employ persons in excess of the number of the employees needed by the licensee in the conduct of a radio broadcasting business, on its face, was construed as not violating this amendment.[19]

Enforcement

"* * * this amendment, besides abolishing forever slavery and involuntary servitude * * *, gives power to Congress to protect all persons within the jurisdiction of the United States from being in any way subject to slavery or involuntary servitude, except as a punishment for crime, and in the enjoyment of that freedom which it was the object of the amendment to secure. * * *"[20] It "is undoubtedly self-executing without any ancillary legislation, * * * [but] legislation may be necessary and proper to meet all the various * * * circumstances to be affected by it, and to prescribe proper modes of redress for its violation in letter or spirit." This legislation, moreover, "may be direct and primary, operating upon the acts of individuals, whether sanctioned by State legislation or not; [whereas] under the Fourteenth [Amendment], * * * it * * * can only be, corrective in its character, addressed to counteract and afford relief against State regulations or proceedings."[21]

Pursuant to its powers of enforcement under section two of this amendment, Congress on March 2, 1867 enacted a statute[22] by the terms of which the system of peonage was abolished and prohibited and penalties were imposed on anyone who holds, arrests, or returns, or causes, or aids in the arrest or return of a person to peonage. The validity of this act was sustained in Clyatt v. United States;[23] and more recently, in United States v. Gaskin,[24] a proviso thereof was construed as capable of supporting a conviction for arrest with intent to compel performance of labor even though the debtor in fact rendered no service after his arrest. Each of the acts enumerated in that proviso, the "holding, arresting, or the returning, may be the subject of indictment and punishment."

Notes

[1] Bailey v. Alabama, 219 U.S. 219, 240 (1911).

[2] 16 Wall. 36 (1873).

[3] Ibid. 69, 71-72.

[4] 203 U.S. 1 (1906).

[5] Ibid. 16-17.

[6] Pursuant to its enforcement powers under section 2 of this amendment, Congress, on March 2, 1867 adopted a statute (14 Stat. 546), which is now found in 8 U.S.C.A. Sec. 56 and 18 U.S.C.A. Sec. 1581, by the terms of which peonage was prohibited, and persons returning any one to a condition of peonage were subjected to criminal punishment. This statute was upheld in Clyatt v. United States, 197 U.S. 207 (1905).

[7] Peonage Cases, 123 F. 671 (1903).

[8] 219 U.S. 219 (1911). Justice Holmes, who was joined by Justice Lurton, dissented on the ground that a State was not forbidden by this amendment from punishing a breach of contract as a crime. "Compulsory work for no private master in a jail is not peonage."--Ibid. 247.

[9] Ibid. 244.

[10] 235 U.S. 133 (1914).

[11] 315 U.S. 25 (1942).

[12] 322 U.S. 4 (1944). Justice Reed, with Chief Justice Stone concurring, contended in a dissenting opinion that a State is not prohibited by the Thirteenth Amendment from "punishing the fraudulent procurement of an advance in wages."--Ibid. 27.

[13] Civil Rights Cases, 109 U.S. 3, 23-25 (1883); Plessy v. Ferguson, 163 U.S. 537 (1896).

[14] Hodges v. United States; 203 U.S. 1 (1906).

[15] Robertson v. Baldwin, 165 U.S. 275, 282 (1897).

[16] Butler v. Perry, 240 U.S. 328, 333 (1916).--Work-or-fight laws, such as States enacted during World War I, which required male residents to be employed during the period of that War were sustained on similar grounds, as were municipal ordinances, enforced during the Depression, which compelled indigents physically able to perform manual labor to serve the municipality without compensation as a condition of receiving financial assistance.--State v. McClure, 7 Boyce (Del.) 265; 105 A. 712 (1919); Commonwealth v. Pouliot, 292 Mass. 229; 198 N.E. 256 (1935).

[17] Arver v. United States (Selective Draft Law Cases), 245 U.S. 366, 390 (1918); United States v. Brooks, 54 F. Supp. 995 (1944); affirmed 147 F. (2d) 134 (1945); certiorari denied, 324 U.S. 878 (1945). It may be noted in this connection that labor leaders have contended that conscription of labor in time of war, unaccompanied by nationalization of industry, would mean that the conscripts, having thus been forced by the Government to work for private profit, would be reduced to involuntary servitude. This position is not supported by the precedents.--See Corwin, Total War and the Constitution, 89-90 (1947).

[18] Brown (Marcus) Holding Co. v. Feldman, 256 U.S. 170, 109 (1921).

[19] United States v. Petrillo, 332 U.S. 1, 12-13 (1947). Injunctions and "cease and desist" orders in labor disputes have also been repeatedly sustained against charges by labor that the prohibitions of this amendment had been violated. See Auto Workers v. Wis. Board, 336 U.S. 245 (1949), in which application of the Wisconsin Employment Peace Act in support of an order forbidding recurrent, intermittent work stoppages for unstated ends was held not to have imposed involuntary servitude. See also Western Union Tel. Co. v. International B. of E. Workers, 2 F. (2d) 993 (1924); International Brotherhood, Etc. v. Western U. Tel. Co., 46 F. (2d) 736 (1931), certiorari denied, 284 U.S. 630 (1931).

[20] United States v. Harris, 106 U.S. 629, 640 (1883). An act of Congress which penalized a conspiracy to deprive any person of the equal protection of the laws or of equal privileges and immunities under the laws was accordingly held unconstitutional insofar as its validity was made to depend upon the Thirteenth Amendment.

[21] Civil Rights Cases, 109 U.S. 3, 20, 23 (1883).

[22] 14 Stat. 546; 8 U.S.C.A. Sec. 56; 18 U.S.C.A. Sec. 1581.

[23] 197 U.S. 207, 218 (1905).

[24] 320 U.S. 527, 529 (1944).

AMENDMENT 14

RIGHTS OF CITIZENS

Page Section 1. Citizenship; privileges and immunities; due process; equal protection 963 Citizens of the United States 963 Kinds and sources of citizenship 963 History 963 Judicial elucidation of the citizenship clause 964 National and State citizenship 965 Corporations 965 Privileges and immunities 965 Purpose and early history of the clause 965 Privileges and immunities of citizens of the United States 967 Privileges held not within the protection of the clause 969 Due process of law clause 971 Historical development 971 Police power: liberty: property 974 Liberty of contract--labor relations 976 Definitions 981 "Persons" defined 981 Due process and the police power 982 Definition 982 Limitations on the police power 982 "Liberty," in general 983 Definitions 983 Personal liberty: compulsory vaccination: sexual sterilization 984 Liberties pertaining to education (of teachers, parents, pupils) 984 Liberties safeguarded by the first eight amendments 985 Liberty of contract (labor relations) 985 In general 985 Laws regulating hours of labor 986 Laws regulating labor in mines 987 Laws prohibiting employment of children in hazardous occupations 987 Laws regulating payment of wages 987 Minimum wage laws 988 Workmen's compensation laws 989 Collective bargaining 991 Regulation of charges; Business affected with a Public Interest 994 History 994 Nebbia v. New York 996 Judicial review of publicly determined rates and charges 998 Development 998 Limitations on judicial review 1000 Ben Avon Case 1003 History of the valuation question 1004 Regulation of public utilities (other than rates) 1008 In general 1008 Compulsory expenditures 1009 Grade crossings and other expenditures by railroads 1010 Compellable services 1011 Intercompany railway service 1012 Intercompany discriminatory service charges 1013 Safety regulations applicable to railroads 1014 Liabilities and penalties 1014 Regulation of corporations, business, professions, and trades 1016 Domestic corporations 1016 Foreign corporations 1016 Business in general 1017 Laws prohibiting trusts, discrimination, restraint of trade 1017 Statutes preventing fraud in sale of goods 1018 Blue sky laws; laws regulating boards of trade, etc. 1019 Trading stamps 1019 Banking 1020 Loans, interest, assignments 1020 Insurance 1021 Professions, trades, occupations 1023 Pharmacies 1023 Miscellaneous business, professions, trades, and occupations 1023 Protection of resources of the State 1025 Oil and gas 1025 Protection of property damaged by mining or drilling of wells 1026 Water 1026 Apple and citrus fruit industries 1026 Fish and game 1027 Limitations on ownership 1027 Zoning, building lines, etc. 1027 Safety regulations 1029 Police power 1029 General 1029 Health measures 1030 Protection of water supply 1030 Garbage 1030 Sewers 1030 Food and Drugs, etc. 1030 Milk 1030 Protection of public morals 1031 Gambling and lotteries 1031 Red light districts 1031 Sunday blue laws 1031 Intoxicating liquor 1031 Regulation of motor vehicles and motor carriers 1032 Succession to property 1033 Administration of estates 1034 Abandoned property 1034 Vested rights, remedial rights; political candidacy 1034 Man's best friend 1035 Control of local units of government 1035 Taxation 1036 In general 1036 Public purpose 1036 Other considerations affecting validity: excessive burden; ration of amount to benefit received 1037 Estate, gift and inheritance taxes 1037 Other types of taxes 1036 Income taxes 1036 Franchise taxes 1036 Severance taxes 1036 Real property taxes (assessment) 1036 Real property taxes (special assessments) 1040 Jurisdiction to tax 1041 Land 1041 Tangible personalty 1041 Intangible personalty 1042 General 1042 Taxes on intangibles sustained 1042 Taxes on intangibles invalidated 1044 Transfer taxes (inheritance, estate, gift taxes) 1045 Corporation taxes 1049 Intangible personal property 1049 Privilege taxes measured by corporate stock 1050 Privilege taxes measured by gross receipts 1051 Taxes on tangible personal property 1052 Income and other taxes 1053 Individual incomes 1053 Incomes of foreign corporations 1054 Chain store taxes 1055 Insurance company taxes 1055 Procedure in taxation 1056 In general 1056 Notice and hearing in relation to general taxes 1057 Notice and hearing in relation to assessments 1057 Notice and hearing in relation to special assessments 1058 Sufficiency and manner of giving notice 1060 Sufficiency of remedy 1060 Laches 1061 Collection of taxes 1061 Eminent Domain 1062 Historical development 1062 Public use 1063 Necessity for a taking 1064 What constitutes a taking for a public use 1064 Just compensation 1066 Uncompensated takings 1067 Consequential damages 1067 Limits to the above rule 1068 Due process in eminent domain 1069 Notice 1069 Hearing 1069 Occupation in advance of condemnation 1070 Due process in civil proceedings 1070 Some general criteria 1070 Ancient usage and uniformity 1070 Equality 1071 Due process and judicial process 1071 Jurisdiction 1072 In general 1072 How perfected: by voluntary appearance or service of process 1072 Service of process in actions in personam: individuals, resident and nonresident 1073 Suits in personam 1075 Suability of foreign corporations 1075 Service of process 1080 Actions in rem--proceedings against land 1080 Actions in rem--attachment proceedings 1081 Actions in rem--corporations, estates, trusts, etc. 1081 Actions in rem--divorce proceedings 1083 Misnomer of defendant--false return, etc. 1083 Notice and hearing 1084 Legislative proceedings 1084 Administrative proceedings 1084 Statutory proceedings 1087 Judicial proceedings 1087 Sufficiency of notice and hearing 1088 Power of States to regulate procedure 1089 Generally 1089 Pleading and practice 1089 Commencement of actions 1089 Pleas in abatement 1090 Defenses 1090 Amendments and continuances 1091 Costs, damages, and penalties 1091 Statutes of limitation 1092 Evidence and presumptions 1093 Jury trials: dispensing with trials 1096 Due process in criminal proceedings 1096 General 1096 Indefinite statutes: right of accused to knowledge of offense 1097 Abolition of the grand jury 1098 Right to counsel 1098 Right to trial by jury 1109 Self-incrimination: forced confessions 1111 Unreasonable searches and seizures 1121 Conviction based on perjured testimony 1124 Confrontation: presence of the accused; public trial 1126 Trial by impartial tribunal 1131 Other attributes of a fair trial 1132 Excessive bail, cruel and unusual punishment, sentence 1133 Double jeopardy 1135 Rights of prisoners 1137 Access to the courts 1137 Appeals: corrective process 1137 Due process: miscellaneous 1139 Appeals 1139 Federal review of State procedure 1140 Equal protection of the laws 1141 Definition of terms 1141 What constitutes State action 1141 "Persons" 1142 "Within its jurisdiction" 1143 "Equal protection of the laws" 1144 Legislative classifications 1145 Taxation 1146 Classifications for the purpose of taxation 1147 Foreign corporations 1149 Income taxes 1150 Inheritance taxes 1150 Motor vehicle taxes 1151 Poll taxes 1152 Property taxes 1152 Special assessment 1152 Police power 1153 Classification 1153 Administrative discretion 1157 Alien laws 1157 Labor relations 1158 Monopolies 1160 Punishment for crime 1160 Segregation 1161 Political rights 1163 Procedure 1165 General doctrine 1165 Access to courts 1166 Corporations 1166 Expenses of litigation 1167 Selection of jury 1167 Section 2. Apportionment of representation 1170 In general 1171 "Indians not taxed" 1171 Right to vote 1172 Reduction of State's representation 1172 Section 3. Disqualification of officers 1173 In general 1173 Section 4. Public debt, etc. 1174 Section 5. Enforcement 1175 Scope of the provision 1175

RIGHTS OF CITIZENS

Amendment 14

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Citizens of the United States

KIND AND SOURCES OF CITIZENSHIP

There are three categories of persons who, if subject to the jurisdiction of the United States, are citizens thereof: (1) those who are born citizens, of whom there are two classes, those who are born in the United States and those who are born abroad of American parentage; (2) those who achieve citizenship by qualifying for it in accordance with the naturalization statutes; (3) those who have citizenship thrust upon them, such as the members of certain Indian tribes and the inhabitants of certain dependencies of the United States. In the present connection we are interested in those who are citizens by virtue of birth in the United States.[1]

HISTORY

In the famous Dred Scott Case,[2] Chief Justice Taney had ruled that United States citizenship was enjoyed by two classes of individuals: (1) white persons born in the United States as descendants of "persons, who were at the time of the adoption of the Constitution recognized as citizens in the several States and [who] became also citizens of this new political body," the United States of America, and (2) those who, having been "born outside the dominions of the United States," had migrated thereto and been naturalized therein. The States were competent, he conceded, to confer State citizenship upon anyone in their midst, but could not make the recipient of such status a citizen of the United States. The Negro, however, according to the Chief Justice, was ineligible to attain United States citizenship either from a State or by virtue of birth in the United States, even as a free man descended from a Negro residing as a free man in one of the States at the date of ratification of the Constitution. That basic document did not contemplate the possibility of Negro citizenship.[3] By the Fourteenth Amendment this deficiency of the original Constitution was cured.[4]

JUDICIAL ELUCIDATION OF THE CITIZENSHIP CLAUSE

By the decision in 1898 in United States v. Wong Kim Ark,[5] all children born in the United States to aliens, even temporary sojourners, if they are not exempt from territorial jurisdiction, are citizens irrespective of race or nationality. But children born in the United States to alien enemies in hostile occupation or to diplomatic representatives of a foreign state, not being "subject to the jurisdiction thereof," i.e., of the United States, are not citizens.[6] Likewise persons born on a public vessel of a foreign country while within the waters of the United States are not considered as having been born within the jurisdiction of the United States, and hence are not citizens thereof.[7] Conversely, a Chinese born on the high seas aboard an American vessel of Chinese parents residing in the United States was declared not to be a citizen on the ground of not having been born "in the United States."[8] But a child who was born in like circumstances of parents who were citizens of the United States was declared, shortly before the Civil War, to be a citizen thereof.[9]

NATIONAL AND STATE CITIZENSHIP

With the ratification of the Fourteenth Amendment a distinction between citizenship of the United States and citizenship of a State was clearly recognized and established. "Not only may a man be a citizen of the United States without being a citizen of a State, but an important element is necessary to convert the former into the latter. He must reside within the State to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union. It is quite clear, then, that there is a citizenship of the United States, and a citizenship of a State, which are distinct from each other, and which depend upon different characteristics or circumstances in the individual."[10] National citizenship, although not created by this amendment, was thereby made "paramount and dominant."[11]

CORPORATIONS

Citizens of the United States within the meaning of this article must be natural and not artificial persons; a corporate body is not a citizen of the United States.[12]

Privileges and Immunities

PURPOSE AND EARLY HISTORY OF THE CLAUSE

Unique among constitutional provisions, the privileges and immunities clause of the Fourteenth Amendment enjoys the distinction of having been rendered a "practical nullity" by a single decision of the Supreme Court rendered within five years after its ratification. In the Slaughter-House Cases[13] a bare majority of the Court frustrated the aims of the most aggressive sponsors of this clause, to whom was attributed an intention to centralize "in the hands of the Federal Government large powers hitherto exercised by the States" with a view to enabling business to develop unimpeded by State interference. This expansive alteration of the Federal System was to have been achieved by converting the rights of the citizens of each State as of the date of the adoption of the Fourteenth Amendment into privileges and immunities of United States citizenship and thereafter perpetuating this newly defined status quo through judicial condemnation of any State law challenged as "abridging" any one of the latter privileges. To have fostered such intentions, the Court declared, would have been "to transfer the security and protection of all the civil rights * * * to the Federal Government, * * * to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States," and to "constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment * * * [The effect of] so great a departure from the structure and spirit of our institutions; * * * is to fetter and degrade the State governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; * * * We are convinced that no such results were intended by the Congress * * *, nor by the legislatures * * * which ratified" this amendment, and that the sole "pervading purpose" of this and the other War Amendments was "the freedom of the slave race."

Conformably to these conclusions the Court advised the New Orleans butchers that the Louisiana statute conferring on a single corporation a monopoly of the business of slaughtering cattle abrogated no rights possessed by them as United States citizens and that insofar as that law interfered with their claimed privilege of pursuing the lawful calling of butchering animals, the privilege thus terminated was merely one of "those which belonged to the citizens of the States as such, and" that these had been "left to the State governments for security and protection" and had not been by this clause "placed under the special care of the Federal Government." The only privileges which the latter clause expressly protected against State encroachment were declared to be those "which owe their existence to the Federal Government, its National character, its Constitution, or its laws."--privileges, indeed, which had been available to United States citizens even prior to the adoption of the Fourteenth Amendment; and inasmuch as under the principle of federal supremacy no State ever was competent to interfere with their enjoyment, the privileges and immunities clause of the Fourteenth Amendment was thereby reduced to a superfluous reiteration of a prohibition already operative against the States.[14]

PRIVILEGES AND IMMUNITIES OF CITIZENS OF THE UNITED STATES

Although the Court has expressed a reluctance to attempt a definitive enumeration of those privileges and immunities of United States citizens such as are protected against State encroachment, it nevertheless felt obliged in the Slaughter-House Cases "to suggest some which owe their existence to the Federal Government, its National character, its Constitution, or its laws." Among those then identified were the following: right of access to the seat of Government, and to the seaports, subtreasuries, land offices, and courts of justice in the several States; right to demand protection of the Federal Government on the high seas, or abroad; right of assembly and privilege of the writ of habeas corpus; right to use the navigable waters of the United States; and rights secured by treaty.[15]

In a later listing in Twining v. New Jersey,[16] decided in 1908, the Court recognized "among the rights and privileges" of national citizenship the following: The right to pass freely from State to State;[17] the right to petition Congress for a redress of grievances;[18] the right to vote for national officers;[19] the right to enter public lands;[20] the right to be protected against violence while in the lawful custody of a United States marshal;[21] and the right to inform the United States authorities of violations of its laws.[22] Earlier in a decision not referred to in the aforementioned enumeration, the Court had also acknowledged that the carrying on of interstate commerce is "a right which every citizen of the United States is entitled to exercise."[23]

During the past fifteen years this clause has been accorded somewhat uneven treatment by the Court which, on two occasions at least, has manifested a disposition to magnify the restraint which it imposes on State action by enlarging previous enumerations of the privileges protected thereby. In Hague v. C.I.O.,[24] decided in 1939, the Court affirmed that freedom to use municipal streets and parks for the dissemination of information concerning provisions of a federal statute and to assemble peacefully therein for discussion of the advantages and opportunities offered by such act was a privilege and immunity of a United States citizen. The latter privilege was deemed to have been abridged by city officials who acted in pursuance of a void ordinance which authorized a director of safety to refuse permits for parades or assemblies on streets or parks whenever he believed riots could thereby be avoided and who forcibly evicted from their city union organizers who sought to use the streets and parks for the aforementioned purposes.[25] Again in Edwards v. California,[26] four Justices[27] who concurred in the judgment that a California statute restricting the entry of indigent migrants was unconstitutional preferred to rest their decision on the ground that the act interfered with the right of citizens to move freely from State to State. In thus rejecting the commerce clause, relied on by the majority as the basis for disposing of this case, the minority thereby resurrected an issue first advanced in the old decision of Crandall v. Nevada[28] and believed to have been resolved in favor of the commerce clause by Helson and Randolph v. Kentucky.[29] Colgate v. Harvey,[30] however, which was decided in 1935 and overruled in 1940,[31] represented the first attempt by the Court since adoption of the Fourteenth Amendment to convert the privileges and immunities clause into a source of protection of other than those "interests growing out of the relationship between the citizen and the national government." Here the Court declared that the right of a citizen, resident in one State, to contract in another, to transact any lawful business, or to make a loan of money, in any State other than that in which the citizen resides was a privilege of national citizenship which was abridged by a State income tax law excluding from taxable income interest received on money loaned within the State.[32] Whether or not this overruled precedent is again to be revived and the privileges and immunities clause again placed in readiness for further expansion cannot yet be determined with assurance; but in Oyama v. California,[33] decided in 1948, the Court, in a single sentence, affirmed the contention of a native-born youth that California's Alien Land Law, applied so as to work a forfeiture of property purchased in his name with funds advanced by his parent, a Japanese alien ineligible to citizenship and precluded from owning land by the terms thereof, deprived him "of his privileges as an American citizen." In none of the previous enumerations has the right to acquire and retain property been set forth as one of the privileges of American citizenship protected against State abridgment; nor is any connection readily discernible between this right and the "relationship between the citizen and the national government." However, the right asserted by Oyama was supported by a "federal statute enacted before the Fourteenth Amendment" which provided that "all citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to * * * purchase, * * * and hold * * * real * * * property."[34]

PRIVILEGES HELD NOT WITHIN THE PROTECTION OF THE CLAUSE

In the following cases State action was upheld against the challenge that it abridged the immunities or privileges of citizens of the United States:

(1) Statute limiting hours of labor in mines.[35]

(2) Statute taxing the business of hiring persons to labor outside the State.[36]

(3) Statute requiring employment of only licensed mine managers and examiners, and imposing liability on the mine owner for failure to furnish a reasonably safe place for workmen.[37]

(4) Statute restricting employment under public works of the State to citizens of the United States, with a preference to citizens of the State.[38]

(5) Statute making railroads liable to employees for injuries caused by negligence of fellow servants, and abolishing the defense of contributory negligence.[39]

(6) Statute prohibiting a stipulation against liability for negligence in delivery of interstate telegraph messages.[40]

(7) Refusal of State court to license a woman to practice law.[41]

(8) Law taxing in the hands of a resident citizen a debt owing from a resident of another State and secured by mortgage of land in the debtors' State.[42]

(9) Statutes regulating the manufacture and sale of intoxicating liquors.[43]

(10) Statute regulating the method of capital punishment.[44]

(11) Statute restricting the franchise to male citizens.[45]

(12) Statute requiring persons coming into a State to make a declaration of intention to become citizens and residents thereof before being permitted to register as voters.[46]

(13) Statute restricting dower, in case wife at time of husband's death is a nonresident, to lands of which he died seized.[47]

(14) Statute restricting right to jury trial in civil suits at common law.[48]

(15) Statute restricting drilling or parading in any city by any body of men without license of the Governor. "The right voluntarily to associate together as a military company or organization, or to drill * * *, without, and independent of, an act of Congress or law of the State authorizing the same, is not an attribute of national citizenship."[49]

(16) Provision for prosecution upon information, and for a jury (except in capital cases) of eight persons.[50] Upon an extended review of the cases, the Court held that "the privileges and immunities of citizens of the United States do not necessarily include all the rights protected by the first eight amendments to the Federal Constitution against the powers of the Federal Government"; and specifically, that the right to be tried for an offense only upon indictment, and by a jury of 12, rests with the State governments and is not protected by the Fourteenth Amendment. "Those are not distinctly privileges or immunities [of national citizenship] where everyone has the same as against the Federal Government, whether citizen or not." Similarly, freedom from testimonial compulsion, or self-incrimination, is not "an immunity that is protected by the Fourteenth Amendment against State invasion."[51]

(17) Statute penalizing the becoming or remaining a member of any oath-bound association (other than benevolent orders, etc.,) with knowledge that the association has failed to file its constitution and membership lists. The privilege of remaining a member of such an association, "if it be a privilege arising out of citizenship at all," is an incident of State rather than United States citizenship.[52]

(18) Statute allowing a State to appeal in criminal cases for errors of law and to retry the accused.[53]

(19) Statute making the payment of poll taxes a prerequisite to the right to vote.[54]

(20) Statute whereby deposits in banks outside the State are taxed at 50c per $100 and deposits in banks within the State are taxed at 10c per $100. "* * * the right to carry out an incident to a trade, business or calling such as the deposit of money in banks is not a privilege of national citizenship."[55]

(21) The right to become a candidate for State office is a privilege of State citizenship, not national citizenship.[56]

(22) The Illinois Election Code which requires that a petition to form and nominate candidates for a new political party be signed by at least 200 voters from each of at least 50 of the 102 counties in the State, notwithstanding that 52% of the voters reside in only one county and 87%, in the 49 most populous counties.[57]

Due Process of Law Clause

HISTORICAL DEVELOPMENT

Although many years after ratification the Court ventured the not very informative observation that the Fourteenth Amendment "operates to extend * * * the same protection against arbitrary State legislation, affecting life, liberty and property, as is offered by the Fifth Amendment,"[58] and that "ordinarily if an act of Congress is valid under the Fifth Amendment it would be hard to say that a State law in like terms was void under the Fourteenth,"[59] the significance of the due process clause as a restraint on State action appears to have been grossly underestimated by litigants no less than by the Court in the years immediately following its adoption. From the outset of our constitutional history due process of law as it occurs in the Fifth Amendment had been recognized as a restraint upon government, but, with one conspicuous exception,[60] only in the narrower sense that a legislature must provide "due process for the enforcement of law"; and it was in accordance with this limited appraisal of the clause that the Court disposed of early cases arising thereunder.

Thus, in the Slaughter-House Cases,[61] in which the clause was timidly invoked by a group of butchers challenging on several grounds the validity of a Louisiana statute which conferred upon one corporation the exclusive privilege of butchering cattle in New Orleans, the Court declared that the prohibition against a deprivation of property "has been in the Constitution since the adoption of the Fifth Amendment, as a restraint upon the Federal power. It is also to be found in some form of expression in the constitutions of nearly all the States, as a restraint upon the power of the States. * * * We are not without judicial interpretation, therefore, both State and National, of the meaning of this clause. And it is sufficient to say that under no construction of that provision that we have ever seen, or any that we deem admissible, can the restraint imposed by the State of Louisiana upon the exercise of their trade by the butchers of New Orleans be held to be a deprivation of property within the meaning of that provision."[62] Four years later, in Munn v. Illinois,[63] the Court again refused to interpret the due process clause as invalidating State legislation regulating the rates charged for the transportation and warehousing of grain. Overruling contentions that such legislation effected an unconstitutional deprivation of property by preventing the owner from earning a reasonable compensation for its use and by transferring to the public an interest in a private enterprise, Chief Justice Waite emphasized that "the great office of statutes is to remedy defects in the common law as they are developed, * * * We know that this power [of rate regulation] may be abused; but that is no argument against its existence. For protection against abuses by legislatures the people must resort to the polls, not to the courts."[64]

Deploring such attempts, nullified consistently in the preceding cases, to convert the due process clause into a substantive restraint on the powers of the States, Justice Miller in Davidson v. New Orleans[65] obliquely counseled against a departure from the conventional application of the clause, albeit he acknowledged the difficulty of arriving at a precise, all inclusive, definition thereof. "It is not a little remarkable," he observed, "that while this provision has been in the Constitution of the United States, as a restraint upon the authority of the Federal Government, for nearly a century, and while, during all that time, the manner in which the powers of that government have been exercised has been watched with jealousy, and subjected to the most rigid criticism in all its branches, this special limitation upon its powers has rarely been invoked in the judicial forum or the more enlarged theatre of public discussion. But while it has been part of the Constitution, as a restraint upon the power of the States, only a very few years, the docket of this court is crowded with cases in which we are asked to hold that State courts and State legislatures have deprived their own citizens of life, liberty, or property without due process of law. There is here abundant evidence that there exists some strange misconception of the scope of this provision as found in the Fourteenth Amendment. In fact, it would seem, from the character of many of the cases before us, and the arguments made in them, that the clause under consideration is looked upon as a means of bringing to the test of the decision of this court the abstract opinions of every unsuccessful litigant in a State court of the justice of the decision against him, and of the merits of the legislation on which such a decision may be founded. If, therefore, it were possible to define what it is for a State to deprive a person of life, liberty, or property without due process of law, in terms which would cover every exercise of power thus forbidden to the State, and exclude those which are not, no more useful construction could be furnished by this or any other court to any part of the fundamental law. But, apart from the imminent risk of a failure to give any definition which would be at once perspicuous, comprehensive, and satisfactory, there is wisdom, * * *, in the ascertaining of the intent and application of such an important phrase in the Federal Constitution, by the gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require, * * *"[66]

In thus persisting in its refusal to review, on other than procedural grounds, the constitutionality of State action, the Court was rejecting additional business; but a bare half-dozen years later, in again reaching a result in harmony with past precedents, the Justices gave fair warning of the imminence of a modification of their views. Thus, after noting that the due process clause, by reason of its operation upon "all the powers of government, legislative as well as executive and judicial," could not be appraised solely in terms of the "sanction of settled usage," Justice Mathews, speaking for the Court in Hurtado v. California,[67] declared that, "arbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude. And the limitations imposed by our constitutional law upon the action of the governments, both State and national, are essential to the preservation of public and private rights, notwithstanding the representative character of our political institutions. The enforcement of these limitations by judicial process is the device of self-governing communities to protect the rights of individuals and minorities, as well against the power of numbers, as against the violence of public agents transcending the limits of lawful authority, even when acting in the name and wielding the force of the government."[68] Thus were the States put on notice that every species of State legislation, whether dealing with procedural or substantive rights, was subject to the scrutiny of the Court when the question of its essential justice is raised.

Police Power: Liberty: Property

What induced the Court to dismiss its fears of upsetting the balance in the distribution of powers under the Federal System and to enlarge its own supervisory powers over state legislation were the appeals more and more addressed to it for adequate protection of property rights against the remedial social legislation which the States were increasingly enacting in the wake of industrial expansion. At the same time the added emphasis on the due process clause which satisfaction of these requests entailed afforded the Court an opportunity to compensate for its earlier virtual nullification of the privileges and immunities clause of the amendment. So far as such modification of its position needed to be justified in legal terms, theories concerning the relation of government to private rights were available to demonstrate the impropriety of leaving to the state legislatures the same ample range of police power they had enjoyed prior to the Civil War. Preliminary, however, to this consummation the Slaughter-House Cases and Munn v. Illinois had to be overruled in part, at least, and the views of the dissenting Justices in those cases converted into majority doctrine.

About twenty years were required to complete this process, in the course of which the restricted view of the police power advanced by Justice Field in his dissent in Munn v. Illinois,[69] namely, that it is solely a power to prevent injury, was in effect ratified by the Court itself. This occurred in 1887, in Mugler v. Kansas,[70] where the power was defined as embracing no more than the power to promote public health, morals, and safety. During the same interval, ideas embodying the social compact and natural rights, which had been espoused by Justice Bradley in his dissent in the Slaughter-House Cases,[71] had been transformed tentatively into constitutionally enforceable limitations upon government,[72] with the consequence that the States, in exercising their police power, could foster only those purposes of health, morals, and safety which the Court had enumerated and could employ only such means as would not unreasonably interfere with the fundamental natural rights of liberty and property, which Justice Bradley had equated with freedom to pursue a lawful calling and to make contracts for that purpose.[73]

So having narrowed the scope of the State's police power in deference to the natural rights of liberty and property, the Court next proceeded to read into the latter currently accepted theories of laissez faire economics, reinforced by the doctrine of evolution as elaborated by Herbert Spencer, to the end that "liberty", in particular, became synonymous with governmental hands-off in the field of private economic relations. In Budd v. New York,[74] decided in 1892, Justice Brewer in a dictum declared: "The paternal theory of government is to me odious. The utmost possible liberty to the individual, and the fullest possible protection to him and his property, is both the limitation and duty of government." And to implement this point of view the Court next undertook to water down the accepted maxim that a State statute must be presumed to be valid until clearly shown to be otherwise.[75] The first step was taken with the opposite intention. This occurred in Munn v. Illinois,[76] where the Court, in sustaining the legislation before it, declared: "For our purposes we must assume that, if a state of facts could exist that would justify such legislation, it actually did exist when the statute now under consideration was passed."[77] Ten years later, in Mugler v. Kansas[78] this procedure was improved upon, and a State-wide anti-liquor law was sustained on the basis of the proposition that deleterious social effects of the excessive use of alcoholic liquors were sufficiently notorious for the Court to be able to take notice of them; that is to say, for the Court to review and appraise the considerations which had induced the legislature to enact the statute in the first place.[79] However, in Powell v. Pennsylvania,[80] decided the following year, the Court, being confronted with a similar act involving oleomargarine, concerning which it was unable to claim a like measure of common knowledge, fell back upon the doctrine of presumed validity, and declaring that "it does not appear upon the face of the statute, or from any of the facts of which the Court must take judicial cognizance, that it infringes rights secured by the fundamental law, * * *"[81] sustained the measure.

In contrast to the presumed validity rule under which the Court ordinarily is not obliged to go beyond the record of evidence submitted by the litigants in determining the validity of a statute, the judicial notice principle, as developed in Mugler v. Kansas, carried the inference that unless the Court, independently of the record, is able to ascertain the existence of justifying facts accessible to it by the rules governing judicial notice, it will be obliged to invalidate a police power regulation as bearing no reasonable or adequate relation to the purposes to be subserved by the latter; namely, health, morals, or safety. For appraising State legislation affecting neither liberty nor property, the Court found the rule of presumed validity quite serviceable; but for invalidating legislation constituting governmental interference in the field of economic relations, and, more particularly, labor-management relations, the Court found the principle of judicial notice more advantageous. This advantage was enhanced by the disposition of the Court, in litigation embracing the latter type of legislation, to shift the burden of proof from the litigant charging unconstitutionality to the State seeking enforcement. To the latter was transferred the task of demonstrating that a statute interfering with the natural right of liberty or property was in fact "authorized" by the Constitution and not merely that the latter did not expressly prohibit enactment of the same.

Liberty of Contract--Labor Relations

Although occasionally acknowledging in abstract terms that freedom of contract is not absolute but is subject to restraint by the State in the exercise of its police powers, the Court, in conformity with the aforementioned theories of economics and evolution, was in fact committed to the principle that freedom of contract is the general rule and that legislative authority to abridge the same could be justified only by exceptional circumstances. To maintain such abridgments at a minimum, the Court intermittently employed the rule of judicial notice in a manner best exemplified by a comparison of the early cases of Holden v. Hardy[82] and Lochner v. New York,[83] decisions which bear the same relation to each other as Powell v. Pennsylvania[84] and Mugler v. Kansas.[85]

In Holden v. Hardy, decided in 1898, the Court, in reliance upon the principle of presumed validity, allowed the burden of proof to remain with those attacking the validity of a statute and upheld a Utah act limiting the period of labor in mines to eight hours per day. Taking cognizance of the fact that labor below the surface of the earth was attended by risk to person and to health and for these reasons had long been the subject of State intervention, the Court registered its willingness to sustain a limitation on freedom of contract which a State legislature had adjudged "necessary for the preservation of health of employees," and for which there were "reasonable grounds for believing that * * * [it was] supported by the facts."[86]

Seven years later, however, a radically altered court was predisposed in favor of the doctrine of judicial notice, through application of which it arrived at the conclusion, in Lochner v. New York, that a law restricting employment in bakeries to ten hours per day and 60 hours per week was an unconstitutional interference with the right of adult laborers, sui juris, to contract with respect to their means of livelihood. Denying that in so holding that the Court was in effect substituting its own judgment for that of the legislature, Justice Peckham, nevertheless, maintained that whether the act was within the police power of the State was a "question that must be answered by the Court"; and then, in disregard of the accumulated medical evidence proffered in support of the act, uttered the following observation: "In looking through statistics regarding all trades and occupations, it may be true that the trade of a baker does not appear to be as healthy as some trades, and is also vastly more healthy than still others. To the common understanding the trade of a baker has never been regarded as an unhealthy one. * * * It might be safely affirmed that almost all occupations more or less affect the health. * * * But are we all, on that account, at the mercy of the legislative majorities?"[87]

Of two dissenting opinions filed in the case, one, prepared by Justice Harlan, stressed the abundance of medical testimony tending to show that the life expectancy of bakers was below average, that their capacity to resist diseases was low, and that they were peculiarly prone to suffer irritations of the eyes, lungs, and bronchial passages; and concluded that the very existence of such evidence left the reasonableness of the measure under review open to discussion and that the the latter fact, of itself, put the statute within legislative discretion. "'Responsibility,' according to Justice Harlan, 'therefore, rests upon the legislators, not upon the courts. No evils arising from such legislation could be more far reaching than those that might come to our system of government if the judiciary, abandoning the sphere assigned to it by the fundamental law, should enter the domain of legislation, and upon grounds merely of justice or reason or wisdom annul statutes that had received the sanction of the people's representatives. * * * The public interest imperatively demand--that legislative enactments should be recognized and enforced by the courts as embodying the will of the people, unless they are plainly and palpably beyond all question in violation of the fundamental law of the Constitution.'"[88]

The second dissenting opinion written by Justice Holmes has received the greater measure of attention, however, for the views expressed therein were a forecast of the line of reasoning to be followed by the Court some decades later. According to Justice Holmes: "This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this Court that State constitutions and State laws may regulate life in many ways which we as legislators might think as injudicious or if you like as tyrannical as this, and which equally with this interfere with the liberty to contract. * * * The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics. * * * But a Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution * * * I think that the word 'liberty,' in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law."[89]

In part, Justice Holmes's criticism of his colleagues was unfair, for his "rational and fair man" could not function in a vacuum, and, in appraising the constitutionality of State legislation, could no more avoid being guided by his preferences or "economic predilections" than were the Justices constituting the majority. Insofar as he was resigned to accept the broader conception of due process of law in preference to the historical concept thereof as pertaining to the enforcement rather than the making of law and did not affirmatively advocate a return to the maxim that the possibility of abuse is no argument against possession of a power, Justice Holmes, whether consciously or not, was thus prepared to observe, along with his opponents in the majority, the very practices which were deemed to have rendered inevitable the assumption by the Court of a "perpetual censorship" over State legislation. The basic distinction, therefore, between the positions taken by Justice Peckham for the majority and Justice Holmes, for what was then the minority, was the espousal of the conflicting doctrines of judicial notice by the former and of presumed validity by the latter.

Although the Holmes dissent bore fruit in time in the form of the Bunting v. Oregon[90] and Muller v. Oregon[91] decisions overruling the Lochner Case, the doctrinal approach employed in the earlier of these by Justice Brewer continued to prevail until the depression in the 1930's. In view of the shift in the burden of proof which application of the principle of judicial notice entailed, counsel defending the constitutionality of social legislation developed the practice of submitting voluminous factual briefs replete with medical or other scientific data intended to establish beyond question a substantial relationship between the challenged statute and public health, safety, or morals. Whenever the Court was disposed to uphold measures pertaining to industrial relations, such as laws limiting hours[92] of work, it generally intimated that the facts thus submitted by way of justification had been authenticated sufficiently for it to take judicial cognizance thereof; but whenever it chose to invalidate comparable legislation, such as enactments establishing minimum wages for women and children,[93] it brushed aside such supporting data, proclaimed its inability to perceive any reasonable connection between the statute and the legitimate objectives of health or safety, and condemned the former as an arbitrary interference with freedom of contract.

During the great Depression, however, the laissez faire tenet of self-help was supplanted by the belief that it is peculiarly the duty of government to help those who are unable to help themselves; and to sustain remedial legislation enacted in conformity with the latter philosophy, the Court had to revise extensively its previously formulated concepts of "liberty" under the due process clause. Not only did the Court take judicial notice of the demands for relief arising from the depression when it overturned prior holdings and sustained minimum wage legislation,[94] but in upholding State legislation designed to protect workers in their efforts to organize and bargain collectively, the Court virtually had to exclude from consideration the employer's contention that such legislation interfered with his liberty of contract in contravention of the due process clause and to exalt as a fundamental right the correlative liberty of employees, which right the State legislatures were declared to be competent to protect against interference from private sources. To enable these legislatures to balance the equities, that is, to achieve equality in bargaining power between employer and employees, the Court thus sanctioned a diminution of liberty in the sense of the employer's freedom of contract and a corresponding increase in the measure of liberty enjoyable by the workers. To the extent that it acknowledged that liberty of the individual may be infringed by the coercive conduct of other individuals no less than by the arbitrary action of public officials, the Court in effect transformed the due process clause into a source of encouragement to State legislatures to intervene affirmatively by way of mitigating the effects of such coercion. By such modification of its views, liberty, in the constitutional sense of freedom resulting from restraint upon government, was replaced by the civil liberty which an individual enjoys by virtue of the restraints which government, in his behalf, imposes upon his neighbors.

DEFINITIONS

"Persons" Defined

Notwithstanding the historical controversy that has been waged as to whether the framers of the Fourteenth Amendment intended the word, "person," to mean only natural persons, or whether the word, "person," was substituted for the word, "citizen," with a view to protecting corporations from oppressive state legislation,[95] the Supreme Court, as early as the Granger cases,[96] decided in 1877, upheld on the merits various state laws without raising any question as to the status of railway corporation-plaintiffs to advance due process contentions. There is no doubt that a corporation may not be deprived of its property without due process of law;[97] and although prior decisions have held that the "liberty" guaranteed by the Fourteenth Amendment is the liberty of natural, not artificial, persons,[98] nevertheless a newspaper corporation was sustained, in 1936, in its objection that a state law deprived it of liberty of press.[99] As to the natural persons protected by the due process clause, these include all human beings regardless of race, color, or citizenship.[100]

Ordinarily, the mere interest of an official as such, in contrast to an actual injury sustained by a natural or artificial person through invasion of personal or property rights, has not been deemed adequate to enable him to invoke the protection of the Fourteenth Amendment against State action.[101] Similarly, municipal corporations are viewed as having no standing "to invoke the provisions of the Fourteenth Amendment in opposition to the will of their creator," the State.[102] However, State officers are acknowledged to have an interest, despite their not having sustained any "private damage," in resisting an "endeavor to prevent the enforcement of laws in relation to which they have official duties," and, accordingly, may apply to federal courts for the "review of decisions of State courts declaring State statutes which [they] seek to enforce to be repugnant to the" Fourteenth Amendment.[103]

Due Process and the Police Power

Definition.--The police power of a State today embraces regulations designed to promote the public convenience or the general prosperity as well as those to promote public safety, health, morals, and is not confined to the suppression of what is offensive, disorderly, or unsanitary, but extends to what is for the greatest welfare of the State.[104]

Limitations on the Police Power.--Because the police power of a State is the least limitable of the exercises of government, such limitations as are applicable thereto are not readily definable. Being neither susceptible of circumstantial precision, nor discoverable by any formula, these limitations can be determined only through appropriate regard to the subject matter of the exercise of that power.[105] "It is settled [however] that neither the 'contract' clause nor the 'due process' clause had the effect of overriding the power of the State to establish all regulations that are reasonably necessary to secure the health, safety, good order, comfort, or general welfare of the community; that this power can neither be abdicated nor bargained away, and is inalienable even by express grant; and that all contract and property [or other vested] rights are held subject to its fair exercise."[106] Insofar as the police power is utilized by a State, the means employed to effect its exercise can be neither arbitrary nor oppressive, but must bear a real and substantial relation to an end which is public, specifically, the public health, public safety, or public morals, or some other phase of the general welfare.[107]

The general rule is that if a police power regulation goes too far, it will be recognized as a taking of property for which compensation must be paid.[108] Yet where mutual advantage is a sufficient compensation, an ulterior public advantage may justify a comparatively insignificant taking of private property for what in its immediate purpose seems to be a private use.[109] On the other hand, mere "cost and inconvenience (different words, probably, for the same thing) would have to be very great before they could become an element in the consideration of the right of a State to exert its reserved power or its police power."[110] Moreover, it is elementary that enforcement of uncompensated obedience to a regulation passed in the legitimate exertion of the police power is not a taking without due process of law.[111] Similarly, initial compliance with a regulation which is valid when adopted occasions no forfeiture of the right to protest when that regulation subsequently loses its validity by becoming confiscatory in its operation.[112]

"Liberty" in General

Definition.--"While * * * [the] Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men."[113]

Personal Liberty: Compulsory Vaccination: Sexual Sterilization.--Personal liberty is not infringed by a compulsory vaccination law[114] enacted by a State or its local subdivisions pursuant to the police power for the purpose of protecting inhabitants against the spread of smallpox. "The principle that sustains compulsory vaccination is [also] broad enough to cover" a statute providing for sexual sterilization of inmates of State supported institutions who are found to be afflicted with an hereditary form of insanity or imbecility.[115] Equally constitutional is a statute which provides for the commitment, after probate proceedings, of a psychopathic personality, defined by the State court as including those persons who, by habitual course of misconduct in sexual matters, have evidenced utter lack of power to control their sexual impulses and are likely to commit injury.[116] However, a person cannot be deprived of his liberty under a vague statute which subjected to fine or imprisonment, as a "gangster," any one not engaged in any lawful occupation, known to be a member of a gang consisting of two or more persons, and who had been convicted of a crime in any State in the Union.[117]

Liberties Pertaining to Education (of Teachers, Parents, Pupils).--A State law forbidding the teaching in any private denominational, parochial, or public school, of any modern language, other than English, to any child who has not successfully passed the eighth grade was declared, in Meyer v. Nebraska[118] to be an unconstitutional interference with the right of a foreign language teacher to teach and "of parents to engage him so to instruct their children." Although the Court did incorporate into its opinion in this case the general definition of "liberty" set forth above, its holding was substantially a reaffirmation of the liberty, in this instance of the teacher, to pursue a lawful calling free and clear of arbitrary restraints imposed by the State. In Pierce v. Society of the Sisters,[119] the Court elaborated further upon the liberty of parents when it declared that a State law requiring compulsory public school education of children, aged eight to sixteen, "unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control."[120] As to a student, neither his liberty to pursue his happiness nor his property or property rights were infringed when he was denied admission to a State university for refusing to comply with a law requiring renunciation of allegiance to, or affiliation with, a Greek letter fraternity. The right to attend such an institution was labelled, not an absolute, but a conditional right; inasmuch as the school was wholly under the control of the State, the latter was competent to enact measures such as the present one regulating internal discipline thereat.[121] Similarly, "the Fourteenth Amendment as a safeguard of 'liberty' [does not] confer the right to be students in the State university free from obligation to take military training as one of the conditions of attendance."[122]

Liberties Safeguarded by the First Eight Amendments.--In what has amounted to a constitutional revolution, the Court, since the end of World War I, has substantially enlarged the meaning of the term, "liberty," appearing in the due process clause of the Fourteenth Amendment. As a consequence of this altered interpretation, States and their local subdivisions have been restrained in their attempts to interfere with the press, or with the freedom of speech, assembly, or religious precepts of their inhabitants, and prevented from withholding from persons charged with commission of a crime certain privileges deemed essential to the enjoyment of a "fair trial." Cases revealing to what extent there has been incorporated into the "liberty" of the due process clause of the Fourteenth Amendment the substance of the First Amendment are set forth in the discussion presented under the latter amendment; whereas the decisions indicating the scope of the absorption into the Fourteenth Amendment of the procedural protection afforded by the Fourth, Fifth, Sixth, and Eighth Amendments are included in the material hereinafter presented under the subtitle, Criminal Proceedings.

Liberty of Contract (Labor Relations)

In General.--Liberty of contract, a concept originally advanced by Justices Bradley and Field in the Slaughter-House Cases,[123] was elevated to the status of accepted doctrine in 1897 in Allgeyer v. Louisiana.[124] Applied repeatedly in subsequent cases as a restraint on State power, freedom of contract has also been alluded to as a property right, as is evident in the language of the Court in Coppage v. Kansas:[125] "Included in the right of personal liberty and the right of private property--partaking of the nature of each--is the right to make contracts for the acquisition of property. Chief among such contracts is that of personal employment, by which labor and other services are exchanged for money or other forms of property. If this right be struck down or arbitrarily interfered with, there is a substantial impairment of liberty in the long-established constitutional sense."

However, by a process of reasoning that was almost completely discarded during the depression, the Court was nevertheless able, prior thereto, to sustain State ameliorative legislation by acknowledging that freedom of contract was "a qualified and not an absolute right. * * * Liberty implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community. * * * In dealing with the relation of the employer and employed, the legislature has necessarily a wide field of discretion in order that there may be suitable protection of health and safety, and that peace and good order may be promoted through regulations designed to insure wholesome conditions of work and freedom from oppression."[126] Through observance of such qualifying statement the Court was induced to uphold the following types of labor legislation.

Laws Regulating Hours of Labor.--The due process clause has been construed as permitting enactment by the States of laws: (1) limiting the hours of labor in mines and smelters to eight hours per day;[127] (2) prescribing eight hours a day or a maximum of 48 hours per week as a limitation of the hours at which women may labor;[128] and (3) providing that no person shall work in any mill, etc., more than ten hours per day (with exceptions) but permitting overtime, not to exceed three hours a day, on condition that it is paid at the rate of one and one-half times the regular wage.[129] Because of the almost plenary powers of the State and its municipal subdivisions to determine the conditions under which work shall go forward on public projects, statutes limiting the hours of labor on public works were also upheld at a relatively early date.[130]

Laws Regulating Labor in Mines.--The regulation of mines being so patently within the police power, States have been upheld in the enactment of laws providing for appointment of mining inspectors and requiring payment of their fees by mine owners,[131] compelling employment of only licensed mine managers and mine examiners, and imposing upon mine owners liability for the wilful failure of their manager and examiner to furnish a reasonably safe place for workmen.[132] Other similar regulations which have been sustained have included laws requiring that entries be of a specified width,[133] that boundary pillars be installed between adjoining coal properties as a protection against flood in case of abandonment,[134] and that washhouses be provided for employees.[135]

Laws Prohibiting Employment of Children in Hazardous Occupations.--To make effective its prohibition against the employment of persons under 16 years of age in dangerous occupations, a State has been held to be competent to require employers at their peril to ascertain whether their employees are in fact below that age.[136]

Laws Regulating Payment of Wages.--No unconstitutional deprivation of liberty of contract was deemed to have been occasioned by a statute requiring redemption in cash of store orders or other evidences of indebtedness issued by employers in payment of wages.[137] Nor was any constitutional defect discernible in laws requiring railroads to pay their employees semimonthly[138] and to pay them on the day of discharge, without abatement or reduction, any funds due them.[139] Similarly, freedom of contract was held not to be infringed by an act requiring that miners, whose compensation was fixed on the basis of weight, be paid according to coal in the mine car rather than at a certain price per ton for coal screened after it has been brought to the surface, and conditioning such payment on the presence of no greater percentage of dirt or impurities than that ascertained as unavoidable by the State Industrial Commission.[140]

Minimum Wage Laws.--The theory that a law prescribing minimum wages for women and children violates due process by impairing freedom of contract was finally discarded in 1937.[141] The current theory of the Court, particularly when labor is the beneficiary of legislation, was recently stated by Justice Douglas for a majority of the Court, in the following terms: "Our recent decisions make plain that we do not sit as a superlegislature to weigh the wisdom of legislation nor to decide whether the policy which it expresses offends the public welfare. The legislative power has limits * * *. But the state legislatures have constitutional authority to experiment with new techniques; they are entitled to their own standard of the public welfare; they may within extremely broad limits control practices in the business-labor field, so long as specific constitutional prohibitions are not violated and so long as conflicts with valid and controlling federal laws are avoided."[142] Proceeding from this basis the Court sustained a Missouri statute giving employees the right to absent themselves four hours on election day, between the opening and closing of the polls, without deduction of wages for their absence. It was admitted that this was a minimum wage law, but, said Justice Douglas, "the protection of the right of suffrage under our scheme of things is basic and fundamental," and hence within the police power. "Of course," the Justice added, "many forms of regulation reduce the net return of the enterprise * * * Most regulations of business necessarily impose financial burdens on the enterprise for which no compensation is paid. Those are part of the costs of our civilization. Extreme cases are conjured up where an employer is required to pay wages for a period that has no relation to the legitimate end. Those cases can await decision as and when they arise. The present law has no such infirmity. It is designed to eliminate any penalty for exercising the right of suffrage and to remove a practical obstacle to getting out the vote. The public welfare is a broad and inclusive concept. The moral, social, economic, and physical well-being of the community is one part of it; the political well-being, another. The police power which is adequate to fix the financial burden for one is adequate for the other. The judgment of the legislature that time out for voting should cost the employee nothing may be a debatable one. It is indeed conceded by the opposition to be such. But if our recent cases mean anything, they leave debatable issues as respects business, economic, and social affairs to legislative decision. We could strike down this law only if we returned to the philosophy of the Lochner, Coppage, and Adkins cases."[143]

Workmen's Compensation Laws.--"This Court repeatedly has upheld the authority of the States to establish by legislation departures from the fellow-servant rule and other common-law rules affecting the employer's liability for personal injuries to the employee.[144] * * * These decisions have established the propositions that the rules of law concerning the employer's responsibility for personal injury or death of an employee arising in the course of employment are not beyond alteration by legislation in the public interest; that no person has a vested right entitling him to have these any more than other rules of law remain unchanged for his benefit; and that, if we exclude arbitrary and unreasonable changes, liability may be imposed upon the employer without fault, and the rules respecting his responsibility to one employee for the negligence of another and respecting contributory negligence and assumption of risk are subject to legislative change."[145]

Accordingly, a State statute which provided an exclusive system to govern the liabilities of employers and the rights of employees and their dependents, in respect of compensation for disabling injuries and death caused by accident in certain hazardous occupations,[146] was held not to work a deprivation of property without due process of law in rendering the employer liable irrespective of the doctrines of negligence, contributory negligence, assumption of risk, and negligence of fellow-servants, nor in depriving the employee, or his dependents, of the higher damages which, in some cases, might be rendered under these doctrines.[147] Likewise, an act which allowed an injured employee an election of remedies permitting restricted recovery under a compensation law although guilty of contributory negligence, and full compensatory damages under the Employers' Liability Act did not deprive an employer of his property without due process of law.[148] Similarly, an elective statute has been sustained which provided that, in actions against employers rejecting the system, the inquiry should be presumed to have resulted directly from the employer's negligence and the burden of rebutting said presumption shall rest upon the latter.[149]

Contracts limiting liability for injuries, consummated in advance of the injury received, may be prohibited by the State, which may further stipulate that subsequent acceptance of benefits under such contracts shall not constitute satisfaction of a claim for injuries thereafter sustained.[150] Also, as applied to a nonresident alien employee hired within the State but injured on the outside, an act forbidding any contracts exempting employers from liability for injuries outside the State has been construed as not denying due process to the employer.[151] The fact that a State, after having allowed employers to cover their liability with a private insurer, subsequently withdrew that privilege and required them to contribute to a State Insurance Fund was held to effect no unconstitutional deprivation as applied to an employer who had obtained protection from an insurance company before this change went into effect.[152] Likewise, as long as the right to come under a workmen's compensation statute is optional with an employer, the latter, having chosen to accept benefits thereof, is estopped from attempting to escape its burdens by challenging the constitutionality of a provision thereof which makes the finding of fact of an industrial commission conclusive if supported by any evidence regardless of its preponderance.[153]

When, by the terms of a workmen's compensation statute, the wrongdoer, in case of wrongful death, is obliged to indemnify the employer or the insurance carrier of the employer of the decedent, in the amount which the latter were required under said act to contribute into special compensation funds, no unconstitutional deprivation of the wrongdoer's property was discernible.[154] By the same course of reasoning neither the employer nor the carrier was held to have been denied due process by another provision in an act requiring payments by them, in case an injured employee dies without dependents, into special funds to be used for vocational rehabilitation or disability compensation of injured workers of other establishments.[155] Compensation also need not be based exclusively on loss of earning power, and an award authorized by statute for injuries resulting in disfigurement of the face or head, independent of compensation for inability to work, has been conceded to be neither an arbitrary nor oppressive exercise of the police power.[156]

Collective Bargaining.--During the 1930's, liberty, in the sense of freedom of contract, judicially translated into what one Justice has labelled the Allgeyer-Lochner-Adair-Coppage doctrine,[157] lost its potency as an obstacle to the enforcement of legislation calculated to enhance the bargaining capacity of workers as against that already possessed by their employers. Prior to the manifestation, in Senn v. Tile Layers Protective Union,[158] decided in 1937, of a greater willingness to defer to legislative judgment as to the wisdom and need of such enactments, the Court had, on occasion, sustained measures such as one requiring every corporation to furnish, upon request, to any employee, when discharged or leaving its service, a letter, signed by the superintendent or manager, setting forth the nature and duration of his service to the corporation and stating truly the cause of his leaving.[159] Added provisions that such letters shall be on plain paper selected by the employee, signed in ink and sealed, and free from superfluous figures, and words, were also sustained as not amounting to any unconstitutional deprivation of liberty and property.[160] On the ground that the right to strike is not absolute, the Court in a similar manner upheld a statute by the terms of which an officer of a labor union was punished for having ordered a strike for the purpose of enforcing a payment to a former employee of a stale claim for wages.[161]

The significance of the case of Senn v. Tile Layers Protective Union[162] as an indicator of the range of the alteration of the Court's views concerning the constitutionality of State labor legislation derives in part from the fact that the statute upheld therein was not appreciably different from that voided in Truax v. Corrigan.[163] Both statutes were alike in that they withheld the remedy of injunction; but by reason of the fact that the invalidated act did not contain the more liberal and also more precise definition of a labor dispute set forth in the later enactment and, above all, did not affirmatively purport to sanction peaceful picketing only, the Court was enabled to maintain that Truax v. Corrigan, insofar as "the statute there in question was * * * applied to legalize conduct which was not simply peaceful picketing," was distinguishable. Specifically, the Court in the Senn Case gave its approval to the application of a Wisconsin statute which authorized the giving of publicity to labor disputes, declared peaceful picketing and patrolling lawful, and prohibited the granting of injunctions against such conduct to a controversy in which the matter at issue was the refusal of a tiling contractor employing nonunion workmen to sign a closed shop agreement unless a provision requiring him to abstain from working in his business as a tile layer or helper should be eliminated. Inasmuch as the enhancement of job opportunities for members of the union was a legitimate objective, the State was held competent to authorize the fostering of that end by peaceful picketing, and the fact that the sustaining of the union in its efforts at peaceful persuasion might have the effect of preventing Senn from continuing in business as an independent entrepreneur was declared to present an issue of public policy exclusively for legislative determination.[164]

The policy of many State legislatures in recent years, however, has been to adopt legislation designed to control the abuse of the enormous economic power which previously enacted protective measures enabled labor unions to amass; and it is the constitutionality of such restrictive measures that has lately concerned the Court. Thus, in Railway Mail Association v. Corsi,[165] section 43 of New York's Civil Rights Law which forbids a labor organization to deny any person membership by reason of race, color, or creed, or to deny any member, on similar grounds, equal treatment in designation for employment, promotion, or dismissal by an employer was sustained, when applied to an organization of railway mail clerks, as not interfering unlawfully with the latter's right to choose its members nor abridging its property rights, or liberty of contract. Inasmuch as it held "itself out to represent the general business needs of employees" and functioned "under the protection of the State," the union was deemed to have forfeited the right to claim exemption from legislation protecting workers against discriminatory exclusion.[166] Similarly approved as constitutional in Lincoln Union v. Northwestern Co.[167] and American Federation of Labor v. American Sash Co.[168] were State laws outlawing the closed shop; and when labor unions invoked in their own defense the freedom of contract doctrine that hitherto had been employed to nullify legislation intended for their protection, the Court, speaking through Justice Black announced its refusal "to return, * * * to * * * [a] due process philosophy that has been deliberately discarded. * * * The due process clause," it maintained, does not "forbid a State to pass laws clearly designed to safeguard the opportunity of nonunion workers to get and hold jobs, free from discrimination against them because they are nonunion workers."[169] Also in harmony with the last mentioned pair of cases is Auto Workers v. Wisconsin Board[170] in which was upheld enforcement of the Wisconsin Employment Peace Act which proscribed as an unfair labor practice efforts of a union, after collective bargaining negotiations had become deadlocked, to coerce an employer through a "slow-down" in production achieved by the irregular, but frequent, calling of union meetings during working hours without advance notice to the employer or notice as to whether or when the employees would return, and without informing him of the specific terms sought by such tactics. "No one," declared the Court, can question "the State's power to police coercion by * * * methods" which involve "considerable injury to property and intimidation of other employees by threats."[171] Finally, in Giboney v. Empire Storage Co.,[172] the Court acknowledged that no violation of the Constitution results when a State law forbidding agreements in restraint of trade is construed by State courts as forbidding members of a union of ice peddlers from peacefully picketing a wholesale ice distributor's place of business for the sole purpose of inducing the latter not to sell to nonunion peddlers.

REGULATION OF CHARGES; "BUSINESSES AFFECTED WITH A PUBLIC INTEREST"

History

In endeavoring to measure the impact of the due process clause upon efforts by the States to control the charges exacted by various businesses for their services, the Supreme Court, almost from the inception of the Fourteenth Amendment, has devoted itself to the examination of two questions: (1) whether that clause precluded that kind of regulation of certain types of business, and (2) the nature of the restraint, if any, which this clause imposes on State control of rates in the case of businesses as to which such control exists. For a brief interval following the ratification of the Fourteenth Amendment, the Supreme Court appears to have underestimated the significance of this clause as a substantive restraint on the power of States to fix rates chargeable by an industry deemed appropriately subject to such controls. Thus, in Munn v. Illinois,[173] the first of the "Granger" cases, in which maximum charges established by a State legislature for Chicago grain elevator companies were challenged, not as being confiscatory in character, but rather as a regulation beyond the power of any State agency to impose, the Court, in an opinion that was largely an obiter dictum, declared that the due process clause did not operate as a safeguard against oppressive rates, that if regulation was permissible, the severity thereof was within legislative discretion and could be ameliorated only by resort to the polls. Not much time was permitted to elapse, however, before the Court effected a complete withdrawal from this position; and by 1890[174] it had fully converted the due process clause into a positive restriction which the judicial branch is duty bound to enforce whenever State agencies seek to impose rates which, in its estimation, are arbitrary or unreasonable.

In contrast to the speed with which the Court arrived at those above mentioned conclusions, more than fifty years were to elapse before it developed its currently applicable formula for determining the propriety of subjecting specific businesses to State regulation of their prices or charges. Prior to 1934, unless a business were "affected with a public interest," control of its prices, rates, or conditions of service was viewed as an unconstitutional deprivation of liberty and property without due process of law. During the period of its application, however, this standard, "business affected with a public interest," never acquired any precise meaning; and as a consequence lawyers were never able to identify all those qualities or attributes which invariably distinguished a business so affected from one not so affected. The best the Court ever offered by way of enlightenment was the following classification of businesses subject to regulation, prepared by Chief Justice Taft.[175] These were said to comprise: "(1) Those [businesses] which are carried on under the authority of a public grant of privileges which either expressly or impliedly imposes the affirmative duty of rendering a public service demanded by any member of the public. Such are the railroads, other common carriers and public utilities. (2) Certain occupations, regarded as exceptional, the public interest attaching to which, recognized from earliest times, has survived the period of arbitrary laws by Parliament or Colonial legislatures for regulating all trades and callings. Such are those of the keepers of inns, cabs and grist mills. * * * (3) Businesses which though not public at their inception may be fairly said to have risen to be such and have become subject in consequence to some government regulation. They have come to hold such a peculiar relation to the public that this is superimposed upon them. In the language of the cases, the owner by devoting his business to the public use, in effect grants the public an interest in that use and subjects himself to public regulation to the extent of that interest although the property continues to belong to its private owner and to be entitled to protection accordingly."

Through application of this now outmoded formula the Court found it possible to sustain State laws regulating charges made by grain elevators,[176] stockyards,[177] and tobacco warehouses,[178] and fire insurance rates[179] and commissions paid to fire insurance agents.[180] Voided, because the businesses sought to be controlled were deemed to be not so affected, were State statutes fixing the price at which gasoline may be sold,[181] or at which ticket brokers may resell tickets purchased from theatres,[182] and limiting competition in the manufacture and sale of ice through the withholding of licenses to engage therein.[183]

Nebbia v. New York

In upholding, by a vote of five-to-four, a depression induced New York statute fixing prices at which fluid milk might be sold, the Court, in 1934, finally shelved the concept of "a business affected with a public interest."[184] Older decisions, insofar as they negatived a power to control prices in businesses found not "to be clothed with a public use" were now reviewed as resting, "finally, upon the basis that the requirements of due process were not met because the laws were found arbitrary in their operation and effect. Price control, like any other form of regulation, is [now] unconstitutional only if arbitrary, discriminatory, or demonstrably irrelevant to the policy the legislature is free to adopt, and hence an unnecessary and unwarranted interference with individual liberty." Conceding that "the dairy industry is not, in the accepted sense of the phrase, a public utility"; that is, a "business affected with a public interest," the Court in effect declared that price control henceforth is to be viewed merely as an exercise by the State of its police power, and as such is subject only to the restrictions which due process of law imposes on arbitrary interference with liberty and property. Nor was the Court disturbed by the fact that a "scientific validity" had been claimed for the theories of Adam Smith relating to the "price that will clear the market." However much the minority might stress the unreasonableness of any artificial State regulation interfering with the determination of prices by "natural forces,"[185] the majority was content to note that the "due process clause makes no mention of prices" and that "the courts are both incompetent and unauthorized to deal with the wisdom of the policy adopted or the practicability of the law enacted to forward it."

Having thus concluded that it is no longer the nature of the business which determines the validity of a regulation of its rates or charges but solely the reasonableness of the regulation, the Court had little difficulty in upholding, in Olsen v. Nebraska,[186] a State law prescribing the maximum commission which private employment agencies may charge. Rejecting the contentions of the employment agencies that the need for such protective legislation had not been shown, the Court held that differences of opinion as to the wisdom, need, or appropriateness of the legislation "suggest a choice which should be left to the States"; and that there was "no necessity for the State to demonstrate before us that evils persist despite the competition" between public, charitable, and private employment agencies. The older case of Ribnik v. McBride,[187] which founded the invalidation of similar legislation upon the now obsolete concept of a "business affected with a public interest" was expressly overruled.

JUDICIAL REVIEW OF PUBLICLY DETERMINED RATES AND CHARGES

Development

In Munn v. Illinois,[188] its initial holding concerning the applicability of the Fourteenth Amendment to governmental price fixing,[189] the Court, not only asserted that governmental regulation of rates charged by public utilities and allied businesses was within the States' police power but added that the determination of such rates by a legislature was conclusive and not subject to judicial review or revision. Expanding the range of permissible governmental fixing of prices, the Court, in the Nebbia Case,[190] more recently declared that prices established for business in general would invite judicial condemnation only if "arbitrary, discriminatory, or demonstrably irrelevant to the policy the legislature is free to adopt." The latter standard of judicial appraisal, as will be subsequently noted, represents less of a departure from the principle enunciated in the Munn Case than that which the Court evolved, in the years following 1877, to measure the validity of State imposed public utility rates, and this difference in the judicial treatment of prices and rates accordingly warrants an explanation at the outset. Unlike operators of public utilities who, in return for the grant of certain exclusive, virtually monopolistic privileges by the governmental unit enfranchising them, must assume an obligation to provide continuous service, proprietors of other businesses are in receipt of no similar special advantages and accordingly are unrestricted in the exercise of their right to liquidate and close their establishments. At liberty, therefore, as public utilities invariably are not, to escape, by dissolution, the consequences of publicly imposed charges deemed to be oppressive, owners of ordinary business, presumably for that reason, have thus far been unable to convince the courts that they too, no less than public utilities, are in need of that protection which judicial review affords.

Consistently with its initial pronouncement in the Munn Case, that the reasonableness of compensation allowed under permissible rate regulation presented a legislative rather than a judicial question, the Court, in Davidson v. New Orleans,[191] also rejected the contention that, by virtue of the due process clause, businesses, even though subject to control of their prices or charges, were nevertheless entitled to "just compensation." Less than a decade was to elapse, however, before the Court, appalled perhaps by prospective consequences of leaving business "at the mercy of the majority of the legislature," began to reverse itself. Thus, in 1886, Chief Justice Waite, in the Railroad Commission Cases,[192] warned that "this power to regulate is not a power to destroy; [and] the State cannot do that in law which amounts to a taking of property for public use without just compensation or without due process of law"; or, in other words, cannot impose a confiscatory rate. By treating "due process of law" and "just compensation" as equivalents, the Court, contrary to its earlier holding in Davidson v. New Orleans, was in effect asserting that the imposition of a rate so low as to damage or diminish private property ceased to be an exercise of a State's police power and became one of eminent domain. Nevertheless, even the added measure of protection afforded by the doctrine of the Railroad Commission Cases proved inadequate to satisfy public utilities; for through application of the latter the courts were competent to intervene only to prevent legislative imposition of a confiscatory rate, a rate so low as to be productive of a loss and to amount to a taking of property without just compensation. Nothing less than a judicial acknowledgment that when the "reasonableness" of legislative rates is questioned, the courts should finally dispose of the contention was deemed sufficient by such businesses to afford the relief desired; and although as late as 1888[193] the Court doubted that it possessed the requisite power, it finally acceded to the wishes of the utilities in 1890, and, in Chicago, M. & St. P.R. Co. v. Minnesota[194] ruled as follows: "The question of the reasonableness of a rate * * *, involving as it does the element of reasonableness both as regards the company and as regards the public, is eminently a question for judicial investigation, requiring due process of law for its determination. If the company is deprived of the power of charging rates for the use of its property, and such deprivation takes place in the absence of an investigation by judicial machinery, it is deprived of the lawful use of its property, and thus, in substance and effect, of the property itself, without due process of law * * *"

Despite a last hour attempt, in Budd v. New York,[195] to reconcile Munn v. Illinois with Chicago, M. & St. P.R. Co. v. Minnesota by confining application of the latter decision to cases wherein rates had been fixed by a commission and denying its pertinence to rates directly imposed by a legislature, the Court, in Reagan v. Farmers' Loan and Trust Co.,[196] set at rest all lingering doubts as to the scope of judicial intervention by declaring that, "if a carrier," in the absence of a legislative rate, "attempted to charge a shipper an unreasonable sum," the Court, in accordance with common law principles, will pass on the reasonableness of its rates and has "jurisdiction * * * to award to the shipper any amount exacted * * * in excess of a reasonable rate; * * * The province of the courts is not changed, nor the limit of judicial inquiry altered, because the legislature instead of a carrier prescribes the rates."[197] Reiterating virtually the same principle in Smyth v. Ames,[198] the Court not only obliterated the distinction between confiscatory and unreasonable rates, but also contributed the additional observation that the requirements of due process are not met unless a court reviews not merely the reasonableness of a rate but also determines whether the rate permits the utility to earn a fair return on a fair valuation of its investment.

Limitations on Judicial Review

As to what courts will not do, when reviewing rate orders of a State commission, the following negative statements of the Supreme Court appear to have enduring value. As early as 1894, the Court asserted: "The courts are not authorized to revise or change the body of rates imposed by a legislature or a commission; they do not determine whether one rate is preferable to another, or what under all circumstances would be fair and reasonable as between the carriers and the shippers; they do not engage in any mere administrative work; * * * [however, there can be no doubt] of their power and duty to inquire whether a body of rates * * * is unjust and unreasonable, * * *, and if found so to be, to restrain its operation."[199] And later, in 1910, although it was examining the order of a federal rate-making agency, the Court made a similar observation which appears to be equally applicable to the judicial review of regulations of State agencies. The courts cannot, "under the guise of exerting judicial power, usurp merely administrative functions by setting aside" an order of the commission within the scope of the power delegated to such commission, upon the ground that such power was unwisely or inexpediently exercised.[200]

Also inferable from these early holdings, and effective to restrict the bounds of judicial investigation, is the notion that a distinction can be made between factual questions which give rise only to controversies as to the wisdom or expediency of an order issued by a commission and determinations of fact which bear on a commission's power to act; namely those questions which are inseparable from the constitutional issue of confiscation, and that judicial review does not extend to the former. This distinction is accorded adequate emphasis by the Court in Louisville & N.R. Co. v. Garrett,[201] in which it declared that "the appropriate question for the courts" is simply whether a "commission," in establishing a rate, "acted within the scope of its power" and did not violate "constitutional rights * * * by imposing confiscatory requirements" and that a carrier, contesting the rate thus established, accordingly was not entitled to have a court also pass upon a question of fact regarding the reasonableness of a higher rate charged by it prior to the order of the commission. All that need concern a court, it said, is the fairness of the proceeding whereby the commission determined that the existing rate was excessive; but not the expediency or wisdom of the commission's having superseded that rate with a rate regulation of its own.

Likewise, with a view to diminishing the number of opportunities which courts may enjoy for invalidating rate regulations of State commissions, the Supreme Court has placed various obstacles in the path of the complaining litigant. Thus, not only must a person challenging a rate assume the burden of proof,[202] but he must present a case of "manifest constitutional invalidity";[203] and if, notwithstanding his effort, the question of confiscation remains in doubt, no relief will be granted.[204] Moreover, even though a public utility, which has petitioned a commission for relief from allegedly confiscatory rates, need not await indefinitely a decision by the latter before applying to a court for equitable relief,[205] the latter ought not to interfere in advance of any experience of the practical result of such rates.[206]

In the course of time, however, a distinction emerged between ordinary factual determinations by State commissions and factual determinations which were found to be inseparable from the legal and constitutional issue of confiscation. In two older cases arising from proceedings begun in lower federal courts to enjoin rates, the Court initially adopted the position that it would not disturb such findings of fact insofar as these were supported by substantial evidence. Thus, in San Diego Land and Town Company v. National City,[207] the Court declared that: After a legislative body has fairly and fully investigated and acted, by fixing what it believes to be reasonable rates, the courts cannot step in and say its action shall be set aside because the courts, upon similar investigation, have come to a different conclusion as to the reasonableness of the rates fixed. "Judicial interference should never occur unless the case presents, clearly and beyond all doubt, such a flagrant attack upon the rights of property under the guise of regulation as to compel the court to say that the rates prescribed will necessarily have the effect to deny just compensation for private property taken for the public use." And in a similar later case[208] the Court expressed even more clearly its reluctance to reexamine factual determinations of the kind just described. The Court is not bound "to reexamine and weigh all the evidence, * * *, or to proceed according to * * * [its] independent opinion as to what are proper rates. It is enough if * * * [the Court] cannot say that it was impossible for a fair-minded board to come to the result which was reached."

Moreover, in reviewing orders of the Interstate Commerce Commission, the Court, at least in earlier years,[209] chose to be guided by approximately the same standards of appraisal as it had originally formulated for examining regulations of State commissions; and inasmuch as the following excerpt from its holding in Interstate Commerce Commission v. Union Pacific R. Co.[210] represents an adequate summation of the law as it stood prior to 1920, it is set forth below: "* * * questions of fact may be involved in the determination of questions of law, so that an order, regular on its face, may be set aside if it appears that the rate is so low as to be confiscatory * * *; or if the Commission acted so arbitrarily and unjustly as to fix rates contrary to evidence, or without evidence to support it; or if the authority therein involved has been exercised in such an unreasonable manner as to cause it to be within the elementary rule that the substance, and not the shadow, determines the validity of the exercise of the power. * * * In determining these mixed questions of law and fact, the Court confines itself to the ultimate question as to whether the Commission acted within its power. It will not consider the expediency or wisdom of the order, or whether, on like testimony, it would have made a similar ruling. * * * [The Commission's] conclusion, of course, is subject to review, but when supported by evidence is accepted as final; not that its decision, * * *, can be supported by a mere scintilla of proof--but the courts will not examine the facts further than to determine whether there was substantial evidence to sustain the order."

The Ben Avon Case

These standards of review were abruptly rejected by the Court in Ohio Valley Water Company v. Ben Avon Borough,[211] decided in 1920, as being no longer sufficient to satisfy the requirements of due process. Unlike previous litigation involving allegedly confiscatory rate orders of State commissions, which had developed from rulings of lower federal courts in injunctive proceedings, this case reached the Supreme Court by way of appeal from a State appellate tribunal;[212] and although the latter did in fact review the evidence and ascertained that the State commission's findings of fact were supported by substantial evidence, it also construed the statute providing for review as denying to State courts "the power to pass upon the weight of such evidence." Largely on the strength of this interpretation of the applicable State statute, the Supreme Court held that when the order of a legislature, or of a commission, prescribing a schedule of maximum future rates is challenged as confiscatory, "the State must provide a fair opportunity for submitting that issue to a judicial tribunal for determination upon its own independent judgment as to both law and facts; otherwise the order is void because in conflict with the due process clause, Fourteenth Amendment."

Without departing from the ruling, previously enunciated in Louisville & N.R. Co. v. Garrett,[213] that the failure of a State to grant a statutory right of judicial appeal from a commission's regulation is not violative of due process as long as relief is obtainable by a bill in equity for injunction, the Court also held that the alternative remedy of injunction expressly provided by State law did not afford an adequate opportunity for testing judicially a confiscatory rate order. It conceded the principle stressed by the dissenting Justices that "where a State offers a litigant the choice of two methods of judicial review, of which one is both appropriate and unrestricted, the mere fact that the other which the litigant elects is limited, does not amount to a denial of the constitutional right to a judicial review."[214]

History of the Valuation Question

For almost fifty years the Court was to wander through a maze of conflicting formulas for valuing public service corporation property only to emerge therefrom in 1944 at a point not very far removed from Munn v. Illinois.[215] By holding, in 1942, in Federal Power Commission v. Natural Gas Pipeline Co.,[216] that the "Constitution does not bind rate-making bodies to the service of any single formula or combination of formulas," and in 1944, in Federal Power Commission v. Hope Gas Co.,[217] that "it is the result reached not the method employed which is controlling, * * * [that] it is not the theory but the impact of the rate order which counts, [and that] if the total effect of the rate order cannot be said to be unjust and unreasonable, judicial inquiry under the Act is at an end," the Court, in effect, abdicated from the position assumed in the Ben Avon Case.[218] Without surrendering the judicial power to declare rates unconstitutional on grounds of a substantive[219] deprivation of due process, the Court announced that it would not overturn a result deemed by it to be just simply because "the method employed [by a commission] to reach that result may contain infirmities. * * * [A] Commission's order does not become suspect by reason of the fact that it is challenged. It is the product of expert judgment which carries a presumption of validity. And he who would upset the rate order * * * carries the heavy burden of making a convincing showing that it is invalid because it is unjust and unreasonable in its consequences."[220]

In dispensing with the necessity of observing any of the formulas for rate computation which previously had currency, the Court did not undertake to devise, by way of substitution, any discernible guide to aid it in ascertaining whether a so-called end result is unreasonable. It did intimate that rate-making "involves a balancing of the investor and consumer interests," which does not, however, "'insure that the business shall produce net revenues,' * * * From the investor or company point of view it is important that there be enough revenue not only for operating expenses but also for the capital costs of the business. These include service on the debt and dividends on the stock. * * * By that standard the return to the equity owner should be commensurate with returns on investments in other enterprises having corresponding risks. That return, moreover, should be sufficient to assure confidence in the financial integrity of the enterprise, so as to maintain its credit and to attract capital."[221] Nevertheless, in the light of the court's concentration on the reasonableness of the final result rather than on the correctness of the methods employed to reach that result, it is conceivable that methods or formulas, now discredited in whole or in part, might continue to be observed by State commissions in drafting rate orders that will prove to be justiciably sustainable.[222]

REGULATION OF PUBLIC UTILITIES (OTHER THAN RATES)

In General

By virtue of the nature of the business they carry on and the public's interest in it, public utilities are subject, as to their local business, to State regulation exerted either directly by legislature or by duly authorized administrative bodies.[223] But inasmuch as their property remains under the full protection of the Constitution, it follows that whenever this power of regulation is exerted in what the Court considers to be an "arbitrary" or "unreasonable" way and to be in effect an infringement upon the right of ownership, such exertion of power is void as repugnant to the due process clause.[224] Thus, a city cannot take possession of the equipment of a street railway company, the franchise of which has expired,[225] although it may subject said company to the alternative of accepting an inadequate price for its property or of ceasing operations and removing its property from the streets.[226] Likewise, a city, which is desirous of establishing a lighting system of its own, may not remove, without compensation, the fixtures of a lighting company already occupying the streets under a franchise;[227] but in erecting its own waterworks in competition with that of a company which has no exclusive charter, a municipality inflicts no unconstitutional deprivation.[228] Nor is the property of a telegraph company illegally taken by a municipal ordinance which demands, as a condition of the establishment of poles and conduits in the city streets, that positions be reserved for the city's wires, which shall be carried free of charge, and which provides for the moving of the conduits, when necessary, at company expense.[229] And, the fact that a State, by mere legislative or administrative fiat, cannot convert a private carrier into a common carrier will not protect a foreign corporation which has elected to enter a State, the Constitution and laws of which require that it operate its local private pipe line as a common carrier. Such foreign corporation is viewed as having waived its constitutional right to be secure against imposition of conditions which amount to a taking of property without due process of law.[230]

Compulsory Expenditures

The enforcement of uncompensated obedience to a regulation for the public health and safety is not an unconstitutional taking of property without due process of law.[231] Thus, where the applicable rule so required at the time of the granting of its charter, a water company may be compelled to furnish connections at its own expense to one residing on an ungraded street in which it voluntarily laid its lines.[232] However, if pipe and telephone lines are located on a right of way owned by a pipe line company, the latter cannot, without a denial of due process, be required to relocate such equipment at its own expense;[233] but if its pipes are laid under city streets, a gas company validly may be obligated to assume the cost of moving them to accommodate a municipal drainage system.[234]

To require a turnpike company, as a condition of its taking tolls, to keep its road in repair and to suspend collection thereof, conformably to a State statute, until the road is put in good order, does not take property without due process of law, notwithstanding the fact that present patronage does not yield revenue sufficient to maintain the road in proper condition.[235] Nor is a railroad bridge company unconstitutionally deprived of its property when, in the absence of proof that the addition will not yield a reasonable return, it is ordered to widen its bridge by inclusion of a pathway for pedestrians and a roadway for vehicles.[236]

Grade Crossings and Other Expenditures by Railroads.--When railroads are required to repair a viaduct under which they operate,[237] or to reconstruct a bridge or provide means for passing water for drainage through their embankment,[238] or to sprinkle that part of the street occupied by them,[239] their property is not taken without due process of law. But if an underground cattle-pass is to be constructed, not as a safety measure but as a means of sparing the farmer the inconvenience attendant upon the use of an existing and adequate grade crossing, collection of any part of the cost thereof from a railroad is a prohibited taking for private use.[240] As to grade crossing elimination, the rule is well established that the State may exact from railroads the whole, or such part, of the cost thereof as it deems appropriate, even though commercial highway users, who make no contribution whatsoever, benefit from such improvements. But, the power of the State in this respect is not unlimited. If its imposition is "arbitrary" and "unreasonable" it may be set aside; but to reach that conclusion, it may become necessary to consider certain relevant facts; e.g., whether a new highway on which an underpass is to be constructed is essential to the transportation needs of a community already well served by a crossing equipped with devices which are adequate for safety and convenience of a local traffic; whether the underpass is prescribed as part of a national system of federal aid highways for the furtherance of motor vehicle traffic, much of which is in direct competition with the railroad; whether the increase in such traffic will greatly decrease rail traffic and hence the revenue of the railroad; whether the amount of taxes paid by the railroads of the State, part of which is devoted to the upkeep of public highways used by motor carriers, is disproportionately higher than the amount paid by motor carriers.[241]

Compellable Services

The primary duty of a public utility being to serve on reasonable terms all those who desire the service it renders, it follows that a company cannot pick and choose and elect to serve only those portions of its territory which it finds most profitable, leaving the remainder to get along without the service which it alone is in a position to give. Compelling a gas company to continue serving specified cities as long as it continues to do business in other parts of the State entails therefore no unconstitutional deprivation.[242] Likewise a railway may be compelled to continue the service of a branch or part of a line although the operation involves a loss.[243] But even though a utility, as a condition of enjoyment of powers and privileges granted by the State, is under a continuing obligation to provide reasonably adequate service, and even though that obligation cannot be avoided merely because performance occasions financial loss, yet if a company is at liberty to surrender its franchise and discontinue operations, it cannot be compelled to continue at a loss.[244]

Pursuant to the principle that the State may require railroads to provide adequate facilities suitable for the convenience of the communities served by them,[245] such carriers have been obligated to establish stations at proper places for the convenience of patrons,[246] to stop all their intrastate trains at county seats,[247] to run a regular passenger train instead of a mixed passenger and freight train,[248] to furnish passenger service on a branch line previously devoted exclusively to carrying freight,[249] to restore a siding used principally by a particular plant but available generally as a public track, and to continue, even though not profitable by itself, a sidetrack[250] as well as the upkeep of a switch-track leading from its main line to industrial plants.[251] However, a statute requiring a railroad without indemnification to install switches on the application of owners of grain elevators erected on its right of way was held void.[252] Whether a State order requiring transportation service is to be viewed as reasonable may necessitate consideration of such facts as the likelihood that pecuniary loss will result to the carrier, the nature, extent and productiveness of the carrier's intrastate business, the character of the service required, the public need for it, and its effect upon service already being rendered.[253] If the service required has no substantial relation to transportation, it will be deemed arbitrary and void, as in the case of an order requiring railroads to maintain cattle scales to facilitate trading in cattle,[254] and of a prohibition against letting down an unengaged upper berth while the lower berth was occupied.[255]

Intercompany Railway Service.--"Since the decision in Wisconsin M. & P.R. Co. v. Jacobson, 179 U.S. 287 (1900), there can be no doubt of the power of a State, acting through an administrative body, to require railroad companies to make track connections. But manifestly that does not mean that a Commission may compel them to build branch lines, so as to connect roads lying at a distance from each other; nor does it mean that they may be required to make connections at every point where their tracks come close together in city, town and country, regardless of the amount of business to be done, or the number of persons who may utilize the connection if built. The question in each case must be determined in the light of all the facts, and with a just regard to the advantage to be derived by the public and the expense to be incurred by the carrier. * * * If the order involves the use of property needed in the discharge of those duties which the carrier is bound to perform, then, upon proof of the necessity, the order will be granted, even though 'the furnishing of such necessary facilities may occasion an incidental pecuniary loss.' * * * Where, however, the proceeding is brought to compel a carrier to furnish a facility not included within its absolute duties, the question of expense is of more controlling importance. In determining the reasonableness of such an order the Court must consider all the facts--the places and persons interested, the volume of business to be affected, the saving in time and expense to the shipper, as against the cost and loss to the carrier."[256]

Although a carrier is under a duty to accept goods tendered at its station, it cannot be required, upon payment simply for the service of carriage, to accept cars offered at an arbitrary connection point near its terminus by a competing road seeking to reach and use the former's terminal facilities. Nor may a carrier be required to deliver its cars to connecting carriers without adequate protection from loss or undue detention or compensation for their use.[257] But a carrier may be compelled to interchange its freight cars with other carriers under reasonable terms,[258] and to accept, for reshipment over its lines to points within the State, cars already loaded and in suitable condition.[259]

Intercompany Discriminatory Railroad Service Charges.--Due process is not denied when two carriers, who wholly own and dominate a small connecting railroad, are prohibited from exacting higher charges from shippers accepting delivery over said connecting road than are collected from shippers taking delivery at the terminals of said carriers.[260] Nor is it "unreasonable" or "arbitrary" to require a railroad to desist from demanding freight in advance on merchandise received from one carrier while it accepts merchandise of the same character at the same point from another carrier without such prepayment.[261]

Safety Regulations Applicable to Railroads

The following regulations with reference to railroads have been upheld: a prohibition against operation on certain streets,[262] restrictions on speed, operations, etc., in business sections,[263] requirement of construction of a sidewalk across a right of way,[264] or removal of a track crossing a thoroughfare,[265] compelling the presence of a flagman at a crossing notwithstanding that automatic device might be cheaper and better,[266] compulsory examination of employees for color blindness,[267] full crews on certain trains,[268] specification of a type of locomotive headlight,[269] safety appliance regulations,[270] and a prohibition on the heating of passenger cars from stoves or furnaces inside or suspended from the cars.[271]

Liabilities and Penalties

A statute making the initial carrier[272] or the connecting or delivering carrier,[273] liable to the shipper for the nondelivery of goods is not unconstitutional; nor is a law which provides that a railroad shall be responsible in damages to the owner of property injured by fire communicated by its locomotive engines and which grants the railroad an insurable interest in such property along its route and authority to procure insurance against such liability.[274] Equally consistent with the requirements of due process are the following two enactments; the first, imposing on all common carriers a penalty for failure to settle within a reasonable specified period claims for freight lost or damaged in shipment and conditioning payment of that penalty upon recovery by the claimant in subsequent suit of more than the amount tendered,[275] and the second, levying double damages and an attorney's fee upon a railroad for failure to pay within a reasonable time after demand the amount claimed by an owner for stock injured or killed. However, only in the event that the application of the latter statute is limited to cases where the plaintiff has not demanded more than he recovered in court will its constitutionality be upheld;[276] but when the penalty allowed thereunder is exacted in a case in which the plaintiff demanded more than he sued for and recovered, a defendant railroad is arbitrarily deprived of its property without due process.[277] The requirements of fair play are similarly violated by a statute which, by imposing double liability for failure to pay the full amount of damages within 60 days after notice, unless the claimant recovers less than the amount offered in settlement, in effect penalizes a carrier for guessing incorrectly what a jury would award.[278]

To penalize a carrier which has collected transportation charges in excess of established maximum rates by permitting a person wronged to sue for and collect as liquidated damages $500 plus a reasonable attorney's fee is to subject the carrier to a requirement so unreasonable as to be repugnant to the due process clause; for such liability is not only disproportionate to actual damages, but is being exacted under conditions which do not afford the carrier an adequate opportunity for safely testing the validity of the rates before any liability for the penalty attaches.[279] Where it appears, however, that the carrier had an opportunity to test the reasonableness of the rate, and that its deviation therefrom, by collection of an overcharge, did not proceed from any belief that the rate was invalid, the validity of the penalty imposed is not to be tested by comparison with the amount of the overcharge. Inasmuch as it is imposed as punishment for violation of a law, the legislature may adjust its amount to the public wrong rather than the private injury, and the only limitation which the Fourteenth Amendment imposes is that the penalty prescribed shall not be "so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable." In accordance with the latter standard, a statute granting an aggrieved passenger (who recovered $100 for an overcharge of 60 cents) the right to recover in a civil suit not less than $50 nor more than $300 plus costs and a reasonable attorney's fee is constitutional.[280]

For like reasons, a statute requiring railroads to erect and maintain fences and cattle guards, and making them liable in double amount of damages for their failure to so maintain them is not unconstitutional.[281] Nor is a Nebraska law which establishes a minimum rate of speed for delivery of livestock and which requires every carrier violating the same to pay the owner of such livestock the sum of $10 per car per hour.[282] On the other hand, when a telephone company, in accordance with its established and uncontested regulations, suspends the service of a patron in arrears, infliction upon it of penalties aggregating $3,600, levied pursuant to a statute imposing fines of $100 per day for alleged discrimination, is so plainly arbitrary and oppressive as to take property without due process.[283]

REGULATION OF CORPORATIONS, BUSINESS, PROFESSIONS, AND TRADES

Domestic Corporations

Although a corporation is the creation of a State which reserves the power to amend or repeal corporate charters, the retention of such power will not support the taking of the corporate property without due process of law. To terminate the life of a corporation by annulling its charter is not to confiscate its property but to turn it over to the stockholders after liquidation.[284] Conversely, unreasonable regulation, as by the imposition of confiscatory rates, although it ostensibly falls short of termination of the corporate existence, entails an invalid deprivation.[285]

Foreign Corporations

Foreign corporations also enjoy the protection which the due process clause affords; but such protection does not entitle them to enter another State or, once having been permitted to enter, to continue to do business therein.[286] The power of a State to exclude or to expel a foreign corporation being almost plenary as long as interstate commerce is not directly affected, it follows that a State may subject such entry or continued operation to conditions. Thus, a State law which requires the filing of articles with a local official as a condition prerequisite to the validity of conveyances of local realty to such corporations is not violative of due process.[287] Neither is a State statute which requires a foreign insurance company, as part of the price of entry, to maintain reserves computed by a specific percentage of premiums, including membership fees, received in all States.[288] Similarly a statute requiring corporations to dispose of farm land not necessary to the conduct of their business is not invalid as applied to a foreign hospital corporation, even though the latter, because of changed economic conditions, is unable to recoup its original investment from the sale which it is thus compelled to make.[289]

Business: In General

"The Constitution does not guarantee the unrestricted privilege to engage in a business or to conduct it as one pleases. Certain kinds of business may be prohibited; and the right to conduct a business, or to pursue a calling, may be conditioned. * * * Statutes prescribing the terms upon which those conducting certain businesses may contract, or imposing terms if they do enter into agreements, are within the State's competency."[290]

Laws Prohibiting Trusts, Discrimination, Restraint of Trade.--A State act prohibiting trusts, etc., is not in conflict with the Fourteenth Amendment as to a person combining with others to pool and fix prices, divide net earnings, and prevent competition in the purchase and sale of grain.[291] Nor does the Fourteenth Amendment preclude a State from adopting a policy against all combinations of competing corporations and enforcing it even against combinations which may have been induced by good intentions and from which benefit and not injury may have resulted.[292] Nor is freedom of contract unconstitutionally abridged by a statute which prohibits retail lumber dealers from uniting in an agreement not to purchase materials from wholesalers selling directly to consumers in the retailers' localities,[293] nor by a law punishing combinations for "maliciously" injuring a rival in his business profession or trade.[294] Similarly, a prohibition of unfair discrimination by any one engaged in the manufacture or distribution of a commodity in general use for the purpose of intentionally destroying competition of any regular dealer in such commodity by making sales thereof at a lower rate in one section of the State than in another, after equalization for distance, effects no invalid deprivation of property or interference with freedom of contract.[295] Liberty of contract is infringed, however, by a law punishing dealers in cream who pay higher prices in one locality than in another. Although high bidding by strong buyers tends toward monopoly, the statute has no reasonable relation to such bidding, but infringes private rights whose exercise is not shown to produce evil consequences.[296] A law sanctioning contracts requiring that commodities identified by trade mark will not be sold by the vendee or subsequent vendees except at prices stipulated by the original vendor does not violate the due process clause.[297]

Statutes Preventing Fraud in Sale of Goods.--Laws and ordinances tending to prevent frauds and requiring honest weights and measures in the sale of articles of general consumption have long been considered lawful exertions of the police power.[298] Thus, a prohibition on the issuance by other than an authorized weigher of any weight certificate for grain weighed at any warehouse or elevator where State weighers are stationed, or to charge for such weighing, is not unconstitutional.[299] Nor is a municipal ordinance requiring that commodities sold in load lots by weight be weighed by a public weigh-master within the city invalid as applied to one delivering coal from State-tested scales at a mine outside the city.[300] A statute requiring merchants to record sales in bulk not made in the regular course of business is also within the police power.[301]

Similarly, the power of a State to prescribe standard containers to protect buyers from deception as well as to facilitate trading and to preserve the condition of the merchandise is not open to question. Accordingly, an administrative order issued pursuant to an authorizing statute and prescribing the dimensions, form, and capacity of containers for strawberries and raspberries is not arbitrary inasmuch as the form and dimensions bore a reasonable relation to the protection of the buyers and the preservation in transit of the fruit.[302] Similarly, an ordinance fixing standard sizes of bread loaves and prohibiting the sale of other sizes is not unconstitutional.[303] However, by a case decided in 1924, a "tolerance" of only two ounces in excess of the minimum weight of a loaf of bread is unreasonable when it is impossible to manufacture good bread without frequently exceeding the prescribed tolerance and is consequently unconstitutional;[304] but by one decided ten years later, regulations issued in furtherance of a statutory authorization which impose a rate of tolerance not to exceed three ounces to a pound of bread and requiring that the bread maintain the statutory minimum weight for not less than 12 hours after cooling are constitutional.[305] Likewise a law requiring that lard not sold in bulk should be put upon in containers holding one, three, or five pounds weight, or some whole multiple of these numbers, does not deprive sellers of their property without the process of law.[306]

The right of a manufacturer to maintain secrecy as to his compounds and processes must be held subject to the right of the State, in the exercise of the police power and in the promotion of fair dealing, to require that the nature of the product be fairly set forth.[307] Nor does a statute providing that the purchaser of harvesting or threshing machinery for his own use shall have a reasonable time after delivery for inspecting and testing it, and permitting recission of the contract if the machinery does not prove reasonably adequate, and further declaring any agreement contrary to its provisions to be against public policy and void, does not violate the due process clause.[308]

Blue Sky Laws; Laws Regulating Boards of Trade, Etc.--In the exercise of its power to prevent fraud and imposition, a State may regulate trading in securities within its borders, require a license of those engaging in such dealing, make issuance of a license dependent on a public officer's being satisfied of the good repute of the applicants, and permit him, subject to judicial review of his findings, to revoke the same.[309] A State may forbid the giving of options to sell or buy at a future time any grain or other commodity.[310] It may also forbid sales on margin for future delivery;[311] and may prohibit the keeping of places where stocks, grain, etc., are sold but not paid for at the time, unless a record of the same be made and a stamp tax paid.[312] Making criminal any deduction by the purchaser from the actual weight of grain, hay, seed, or coal under a claim of right by reason of any custom or rule of a board of trade is a valid exercise of the police power and does not deprive the purchaser of his property without due process of law, nor interfere with his liberty of contract.[313]

Trading Stamps.--A prohibitive license fee upon the use of trading stamps is not unconstitutional.[314]

Banking

The Fourteenth Amendment does not deny to States the power to forbid a business simply because it was permitted at common law; and therefore, where public interests so demand, a State may place the banking business under legislative control and prohibit it except under prescribed conditions. Accordingly, a statute subjecting State banks to assessments for a depositors' guaranty fund is within the police power of the States and does not deprive the banks of property without due process of law.[315] Also, a law requiring savings banks to turn over to the State deposits inactive for thirty years (when the depositor cannot be found), with provision for payment to the depositor or his heirs on establishment of the right, does not effect an invalid taking of the property of said banks; nor does a Kentucky statute requiring banks to turn over to the protective custody of that State deposits that have been inactive ten or twenty-five years (depending on the nature of the deposit).[316]

The constitutional rights of creditors in an insolvent bank in the hands of liquidators are not violated by a later statute permitting reopening under a reorganization plan approved by the Court, the liquidating officer, and by three-fourths of the creditors.[317] Similarly, a Federal Reserve bank is not unlawfully deprived of business rights of liberty of contract by a law which allows State banks to pay checks in exchange when presented by or through a Federal Reserve bank, post office, or express company and when not made payable otherwise by a maker.[318]

Loans, Interest, Assignments

In fixing maximum rates of interest on money loaned within its borders, a State is acting clearly within its police power; and the details are within legislative discretion if not unreasonably or arbitrarily exercised.[319] Equally valid as an exercise of a State's police power is a requirement that assignments of future wages as security for debts of less than $200, to be valid, must be accepted in writing by the employer, consented to by the assignors, and filed in a public office. Such a requirement deprives neither the borrower nor the lender of his property without due process of law.[320]

Insurance

The relations generally of those engaged in the insurance business[321] as well as the business itself have been peculiarly subject to supervision and control.[322] The State may fix insurance rates and regulate the compensation of insurance agents.[323] It may impose a fine on "any person 'who shall act in any manner in the negotiation or transaction of unlawful insurance * * * with a foreign insurance company not admitted to do business [within said State].'"[324] It may forbid life insurance companies and their agents to engage in the undertaking business and undertakers to serve as life insurance agents.[325] Nor does a Virginia law which forbids the making of contracts of casualty or surety insurance, by companies authorized to do business therein, except through registered agents, which requires that such contracts applicable to persons or property in the State be countersigned by a registered local agent, and which prohibits such agents from sharing more than 50% of a commission with a nonresident broker, deprive authorized foreign casualty and surety insurers of due process.[326] And just as all banks may be required to contribute to a depositors' guaranty fund, so may all automobile liability insurers be required to submit to the equitable apportionment among them of applicants who are in good faith entitled to, but are financially unable to, procure such insurance through ordinary methods.[327]

However, a statute which prohibits the assured from contracting directly with a marine insurance company outside the State for coverage of property within the State is invalid as a deprivation of liberty without due process of law.[328] For the same reason, a State may not prevent a citizen from concluding with a foreign life insurance company at its home office a policy loan agreement whereby the policy of his life is pledged as collateral security for a cash loan to become due upon default in payment of premiums, in which case the entire policy reserve might be applied to discharge the indebtedness. Authority to subject such an agreement to the conflicting provisions of domestic law is not deducible from the power of a State to license a foreign insurance company as a condition of its doing business therein.[329]

A stipulation that policies of hail insurance shall take effect and become binding twenty-four hours after the hour in which an application is taken and further requiring notice by telegram of rejection of an application is not invalid.[330] Nor is any arbitrary restraint upon their liberty of contract imposed upon surety companies by a statute providing that any bond executed after its enactment for the faithful performance of a building contract shall inure to the benefit of materialmen and laborers, notwithstanding any provision of the bond to the contrary.[331] Likewise constitutional is a law requiring that a policy, indemnifying a motor vehicle owner against liability to persons injured through negligent operation, shall provide that bankruptcy of the insured shall not release the insurer from liability to an injured person.[332]

If fire insurance companies, in case of total loss, are compelled to pay the amount for which the property was insured, less depreciation between the time of issuing the policy and the time of the loss, such insurers are not deprived of their property without due process of law.[333] Moreover, even though it has its attorney-in-fact located in Illinois, signs all its contracts there, and forwards therefrom all checks in payment of losses, a reciprocal insurance association, if it covers real property located in New York, may be compelled to comply with New York regulations which require maintenance of an office in that State and the countersigning of policies by an agent resident therein.[334] Also, to discourage monopolies and to encourage competition in the matter of rates, a State constitutionally may impose on all fire insurance companies connected with a tariff association fixing rates a liability or penalty to be collected by the insured of 25% in excess of actual loss or damage, stipulations in the insurance contract to the contrary notwithstanding.[335]

A State statute by which a life insurance company, if it fails to pay upon demand the amount due under a policy after death of the insured, is made liable in addition for fixed damages, reasonable in amount, and for a reasonable attorney's fee is not unconstitutional even though payment is resisted in good faith and upon reasonable grounds.[336] It is also proper by law to cut off a defense by a life insurance company based on false and fraudulent statements in the application, unless the matter misrepresented actually contributed to the death of the insured.[337] A provision that suicide, unless contemplated when the application for a policy was made, shall be no defense is equally valid.[338] When a cooperative life insurance association is reorganized so as to permit it to do a life insurance business of every kind, policyholders are not deprived of their property without due process of law.[339] Similarly, when the method of liquidation provided by a plan of rehabilitation of a mutual life insurance company is as favorable to dissenting policyholders as would have been the sale of assets and pro rata distribution to all creditors, the dissenters are unable to show any taking without due process. Dissenters have no constitutional right to a particular form of remedy.[340]

Professions, Trades, Occupations

Employment Agencies.--An act imposing license fees for operating such agencies and prohibiting them from sending applicants to an employer who has not applied for labor does not deny due process of law.[341]

Pharmacies.--A Pennsylvania law forbidding a corporation to own therein any drug store, excepting those owned and operated at the time of the enactment, unless all its stockholders are licensed pharmacists, violates the due process clause as applied to a foreign corporation, all of whose stockholders are not pharmacists, which sought to extend its business in Pennsylvania by acquiring and operating therein two additional stores.[342]

Miscellaneous Business, Professions, Trades, and Occupations.--The practice of medicine, using this word in its most general sense, has long been the subject of regulation;[343] and in pursuance of its power a State may exclude osteopathic physicians from hospitals maintained by it or its municipalities;[344] and may regulate the practice of dentistry by prescribing qualifications that are reasonably necessary, requiring licenses, establishing a supervisory administrative board, and by prohibiting certain advertising regardless of its truthfulness.[345] But while statutes requiring pilots to be licensed[346] and railroad engineers to pass color blindness tests[347] have been sustained, an act making it a misdemeanor for a person to act as a railway passenger conductor without having had two years' experience as a freight conductor or brakeman is invalid.[348]

Legislation has been upheld which regulated or required licenses for admissions to places of amusement,[349] grain elevators,[350] detective agencies,[351] sale of cigarettes,[352] or cosmetics,[353] and the resale of theatre tickets;[354] or which absolutely forbade the advertising of cigarettes,[355] or the use of a representation of the United States flag on an advertising medium,[356] the solicitation by a layman of business of collecting and adjusting claims,[357] the keeping of private markets within six squares of a public market,[358] the keeping of billiard halls except in hotels,[359] or the purchase by junk dealers of wire, copper, etc., without ascertaining the sellers' right to sell.[360]

PROTECTION OF RESOURCES OF THE STATE

Oil and Gas

To prevent waste production may be prorated; the prohibition of wasteful conduct, whether primarily in behalf of the owners of gas in a common reservoir or because of the public interests involved is consistent with the Constitution.[361] Thus a statute which defines waste as including, in addition to its ordinary meaning, economic waste, surface waste, and waste incident to production in excess of transportation or marketing facilities or reasonable market demands, and which provides that whenever full production from a common source of supply can be obtained only under conditions constituting waste, a producer may take only such proportion of all that may be produced from such common source without waste, as the production of his wells bears to the total production of such common source, is not repugnant to the due process clause.[362] But whether a system of proration based on hourly potential is as fair as one based upon estimated recoverable reserves or some other combination of factors is a question for administrative and not judicial judgment. In a domain of knowledge still shifting and growing, and in a field where judgment is necessarily beset by the necessity of inferences bordering on the conjecture even for those learned in the art, it has been held to be presumptuous for courts, on the basis of conflicting expert testimony, to nullify an oil proration order, promulgated by an administrative commission in execution of a regulatory scheme intended to conserve a State's oil resources, as violative of due process.[363] On the other hand, where the evidence showed that an order, purporting to limit daily total production of a gas field and to prorate the allowed production among several wells, had for its real purpose, not the prevention of waste nor the undue drainage from the reserves of other well owners, but rather the compelling of pipe line owners to furnish a market to those who had no pipe line connections, the order was held void as a taking of private property for private benefit.[364] As authorized by statute the Oklahoma Corporation Commission, finding that existing low field prices for gas were resulting in economic and physical waste, issued orders fixing a minimum price for natural gas and requiring the Cities Service Company to take gas ratably from another producer in the same field at the dictated price. The orders were sustained by the Court as conservation measures.[365]

Even though carbon black is more valuable than the gas from which it is extracted, and notwithstanding a resulting loss of investment in a plant for the manufacture of carbon black, a State, in the exercise of its police power, may forbid the use of natural gas for products, such as carbon black, in the production of which such gas is burned without fully utilizing for other manufacturing or domestic purposes the heat therein contained.[366] Likewise, for the purpose of regulating and adjusting coexisting rights of surface owners to underlying oil and gas, it is within the power of a State to prohibit the operators of wells from allowing natural gas, not conveniently necessary for other purposes, to come to the surface without its lifting power having been utilized to produce the greatest quantity of oil in proportion.[367]

Protection of Property Damaged by Mining or Drilling of Wells

An ordinance conditioning the right to drill for oil and gas within the city limits upon the filing of a bond in the sum of $200,000 for each well, to secure payment of damages from injuries to any persons or property resulting from the drilling operation, or maintenance of any well or structures appurtenant thereto, is consistent with due process of law, and is not rendered unreasonable by the requirement that the bond be executed, not by personal sureties, but by a bonding company authorized to do business in the State.[368] On the other hand, a Pennsylvania statute, which forbade the mining of coal under private dwellings or streets or cities by a grantor that had reserved the right to mine, was viewed as restricting the use of private property too much, and hence as a "taking" without due process of law.[369]

Water

A statute making it unlawful for a riparian owner to divert water into another State does not deprive him of property without due process of law. "The constitutional power of the State to insist that its natural advantages shall remain unimpaired by its citizens is not dependent upon any nice estimate of the extent of present use or speculation as to future needs. * * * What it has it may keep and give no one a reason for its will."[370]

Apple and Citrus Fruit Industries

A statute requiring the destruction of cedar trees to avoid the infecting with cedar rust of apple orchards within the vicinity of two miles is not unreasonable, notwithstanding the absence of provision for compensation for the trees thus removed or the decrease in the market value of realty caused by their destruction. Apple growing being one of the principal agricultural pursuits in Virginia and the value of cedar trees throughout that State being small as compared with that of apple orchards, the State was constitutionally competent to decide upon the destruction of one class of property in order to save another which, in the judgment of its legislature, is of greater value to the public.[371] With a similar object in view; namely, to protect the reputation of one of its major industries, Florida was held to possess constitutional authority to penalize the delivery for shipment in interstate commerce of citrus fruits so immature as to be unfit for consumption.[372]

Fish and Game

Over fish found within its waters, and over wild game, the State has supreme control.[373] It may regulate or prohibit fishing and hunting within its limits;[374] and for the effective enforcement of such restrictions, it may forbid the possession within its borders of special instruments of violations, such as nets, traps, and seines, regardless of the time of acquisition or the protestations of lawful intentions on the part of a particular possessor.[375] To conserve for food fish found within its waters, a State constitutionally may provide that a reduction plant, processing fish for commercial purposes, may not accept more fish than can be used without deterioration, waste, or spoilage; and, as a shield against the covert depletion of its local supply, may render such restriction applicable to fish brought into the State from the outside.[376] Likewise, it is within the power of a State to forbid the transportation outside the State of game killed therein;[377] and to make illegal possession during the closed season even of game imported from abroad.[378]

LIMITATIONS ON OWNERSHIP

Zoning, Building Lines, Etc.

By virtue of their possession of the police power, States and their municipal subdivisions may declare that in particular circumstances and in particular localities specific businesses, which are not nuisances per se are to be deemed nuisances in fact and in law.[379] Consequently when, by an ordinance enacted in good faith, a municipality prohibited brickmaking in a designated area, the land of a brickmaker in said area was not taken without due process of law, although such land contained valuable clay deposits which could not profitably be removed for processing elsewhere, was far more valuable for brickmaking than for any other purpose, and had been acquired by him before it was annexed to the municipality, and had long been used as a brickyard.[380] On the same basis laws have been upheld which restricted the location of dairy or cow stables,[381] of livery stables,[382] of the grazing of sheep near habitations.[383] Also a State may declare the emission of dense smoke in cities or populous neighborhoods a nuisance and restrain it; and regulations to that effect are not invalid even though they affect the use of property or subject the owner to the expense of complying with their terms.[384]

Not only may the height of buildings be regulated;[385] but it also is permissible to create a residential district in a village and to exclude therefrom apartment houses, retail stores, and billboards. Before holding unconstitutional an ordinance establishing such a district, it must be shown to be clearly arbitrary and unreasonable and to have no substantial relation to the public health, safety, or general welfare.[386] On the other hand, erection of a home for the aged within a residential district cannot be made to depend upon the consent of owners of two-thirds of the property within 400 feet of the site thereof;[387] nor may the interests of nonassenting property owners be ignored by an ordinance which requires municipal officers to establish building lines in a block on request of owners of two-thirds of the property therein.[388] But ordinances requiring lot owners, when constructing new buildings, to set them back a certain distance from the street lines is constitutional unless clearly arbitrary or unreasonable.[389] However, colored persons cannot be forbidden to occupy houses in blocks where the greater number of houses are occupied by white persons, and vice versa. Such a prohibition, the practical effect of which is to prevent the sale of lots in such blocks to colored persons, violates the constitutional prohibitions against interference with property rights except by due process of laws; and cannot be sustained on the ground that it will promote public peace by preventing race conflicts.[390]

Safety Regulations

As a legitimate exercise of the police power calculated to promote public safety and diminish fire hazards, municipal ordinances have been sustained which prohibit the storage of gasoline within 300 feet of any dwelling,[391] or require that all tanks with a capacity of more than ten gallons, used for the storage of gasoline, be buried at least three feet under ground,[392] or which prohibit washing and ironing in public laundries and wash houses, within defined territorial limits, from 10 p.m. to 6 a.m.[393] Equally sanctioned by the Fourteenth Amendment is the demolition and removal by cities of wooden buildings erected within defined fire limits contrary to regulations in force at the time.[394] Nor does construction of property in full compliance with existing laws confer upon the owner an immunity against exercise of the police power. Thus, a 1944 amendment to a Multiple Dwelling Law, requiring installation of automatic sprinklers in lodginghouses of nonfireproof construction erected prior to said enactment, does not, as applied to a lodginghouse constructed in 1940 in conformity with all laws then applicable, deprive the owner thereof of due process, even though compliance entails an expenditure of $7,500 on a property worth only $25,000.[395]

THE POLICE POWER

General

According to settled principles, the police power of a State must be held to embrace the authority not only to enact directly quarantine[396] and health laws of every description but also to vest in municipal subdivisions a capacity to safeguard by appropriate means public health, safety and morals. The manner in which this objective is to be accomplished is within the discretion of the State and its localities, subject only to the condition that no regulation adopted by either shall contravene the Constitution or infringe any right granted or secured by that instrument.[397]

Health Measures

Protection of Water Supply.--A State may require the removal of timber refuse from the vicinity of a watershed for a municipal water supply to prevent the spread of fire and consequent damage to such watershed.[398]

Garbage.--An ordinance for cremation of garbage and refuse at a designated place as a means for the protection of the public health is not a taking of private property without just compensation even though such garbage and refuse may have some elements of value for certain purposes.[399]

Sewers.--Compelling property owners to connect with a publicly maintained system of sewers and enforcing that duty by criminal penalties does not violate the due process clause.[400]

Food and Drugs, Etc.--"The power of the State to * * * prevent the production within its borders of impure foods, unfit for use, and such articles as would spread disease and pestilence, is well established";[401] and statutes forbidding or regulating the manufacture of oleomargarine have been upheld as a valid exercise of such power.[402] For the same reasons, statutes ordering the destruction of unsafe and unwholesome food[403], prohibiting the sale and authorizing confiscation of impure milk[404] have been sustained, notwithstanding that such articles had a value for purposes other than food. There also can be no question of the authority of the State, in the interest of public health and welfare, to forbid the sale of drugs by itinerant vendors,[405] or the sale of spectacles by an establishment not in charge of a physician or optometrist.[406] Nor is it any longer possible to doubt the validity of State regulations pertaining to the administration, sale, prescription, and use of dangerous and habit-forming drugs.[407]

Milk.--Equally valid as police power regulations are laws forbidding the sale of ice cream not containing a reasonable proportion of butter fat,[408] or of condensed milk made from skimmed milk rather than whole milk,[409] or of food preservatives containing boric acid.[410] Similarly, a statute which prohibits the sale of milk to which has been added any fat or oil other than milk fat, and which has, as one of its purposes, the prevention of fraud and deception in the sale of milk products, does not, when applied to "filled milk" having the taste, consistency, and appearance of whole milk products, violate the due process clause. Filled milk is inferior to whole milk in its nutritional content; and cannot be served to children as a substitute for whole milk without producing a dietary deficiency.[411] However, a statute forbidding the use of shoddy, even when sterilized, was held to be arbitrary and therefore invalid.[412]

Protection of the Public Morals

Gambling and Lotteries.--Unless effecting a clear, unmistakable infringement of rights securely by fundamental law, legislation suppressing gambling will be upheld by the Court as concededly within the police power of a State.[413] Accordingly, a State may validly make a judgment against those winning money a lien upon the property in which gambling is conducted with the owner's knowledge and consent.[414] For the same reason, lotteries, including those operated under a legislative grant, may be forbidden, irrespective of any particular equities.[415]

Red Light Districts.--An ordinance prescribing limits in a city outside of which no woman of lewd character shall dwell does not deprive persons owning or occupying property in or adjacent to said limits of any rights protected by the Constitution.[416]

Sunday Blue Laws.--The Supreme Court has uniformly recognized State laws relating to the observance of Sunday as representing a legitimate exercise of the police power. Thus, a law forbidding the keeping open of barber shops on Sunday is constitutional.[417]

Intoxicating Liquor.--"* * * on account of their well-known noxious qualities and the extraordinary evils shown by experience to be consequent upon their use, a State * * * [is competent] to prohibit [absolutely the] manufacture, gift, purchase, sale, or transportation of intoxicating liquors within its borders * * *."[418] And to implement such prohibition, a State has the power to declare that places where liquor is manufactured or kept shall be deemed common nuisances;[419] and even to subject an innocent owner to the forfeiture of his property for the acts of a wrongdoer.[420]

Regulation of Motor Vehicles and Carriers

The highways of a State are public property, the primary and preferred use of which is for private purposes; their uses for purposes of gain may generally be prohibited by the legislature or conditioned as it sees fit.[421] In limiting the use of its highways for intrastate transportation for hire, a State reasonably may provide that carriers who have furnished adequate, responsible, and continuous service over a given route from a specified date in the past shall be entitled to licenses as a matter of right, but that the licensing of those whose service over the route began later than the date specified shall depend upon public convenience and necessity.[422] To require private contract carriers for hire to obtain a certificate of convenience and necessity, which is not granted if the service of common carriers is impaired thereby, and to fix minimum rates applicable thereto which are not less than those prescribed for common carriers is valid as a means of conserving highways;[423] but any attempt to convert private carriers into common carriers,[424] or to subject them to the burdens and regulations of common carriers, without expressly declaring them to be common carriers, is violative of due process.[425] In the absence of legislation by Congress a State may, in protection of the public safety, deny an interstate motor carrier the use of an already congested highway.[426]

In exercising its authority over its highways, on the other hand, a State is limited not merely to the raising of revenue for maintenance and reconstruction, or to regulations as to the manner in which vehicles shall be operated, but may also prevent the wear and hazards due to excessive size of vehicles and weight of load. Accordingly, a statute limiting to 7,000 pounds the net load permissible for trucks is not unreasonable.[427] No less constitutional is a municipal traffic regulation which forbids the operation in the streets of any advertising vehicle, excepting vehicles displaying business notices or advertisements of the products of the owner and not used mainly for advertising; and such regulation may be validly enforced to prevent an express company from selling advertising space on the outside of its trucks. Inasmuch as it is the judgment of local authorities that such advertising affects public safety by distracting drivers and pedestrians, courts are unable to hold otherwise in the absence of evidence refuting that conclusion.[428]

Any appropriate means adopted to insure compliance and care on the part of licensees and to protect other highway users being consonant with due process, a State may also provide that one, against whom a judgment is rendered for negligent operation and who fails to pay it within a designated time, shall have his license and registration suspended for three years, unless, in the meantime, the judgment is satisfied or discharged.[429] By the same token a nonresident owner who loaned his automobile in another State, by the law of which he was immune from liability for the borrower's negligence, and who was not in the State at the time of an accident, is not subjected to any unconstitutional deprivation by a law thereof, imposing liability on the owner for the negligence of one driving the car with the owner's permission.[430] Compulsory automobile insurance is so plainly valid as to present no federal question.[431]

Succession to Property

When a New York Decedent Estate Law, effective after 1930, grants for the first time to a surviving spouse a right of election to take as in intestacy, and the husband, by executing in 1934 a codicil to his will drafted in 1929, made this provision operative, his widow, notwithstanding her waiver in 1922 of any right in her husband's estate, may avail herself of such right of election. The deceased husband's heirs cannot contend that the impairment of the widow's waiver by subsequent legislation deprived his estate of property without due process of law. Rights of succession to property are of statutory creation. Accordingly, New York could have conditioned any further exercise of testamentary power upon the giving of right of election to the surviving spouse regardless of any waiver however formally executed.[432]

Administration of Estates.--Even after the creation of testamentary trust, a State retains the power to devise new and reasonable directions to the trustee to meet new conditions arising during its administration, especially such as the depression presented to trusts containing mortgages. Accordingly, no constitutional right is violated by the retroactive application to an estate on which administration had already begun of a statute which had the effect of taking away a remainderman's right to judicial examination of the trustee's computation of income. Judicial rules, promulgated prior to such statute and which were more favorable to the interests of remaindermen, can be relied upon by the latter only insofar as said rules were intended to operate retroactively; for the decedent, in whose estate the remaindermen had an interest, died even before such court rules were established. If a property right in a particular rule of income allotment in salvage proceedings vested at all, it would seem to have done so at the death of the decedent or testator.[433]

Abandoned Property.--As applied to insurance policies on the lives of New York residents issued by foreign corporations for delivery in New York, where the insured persons continued to be residents and the beneficiaries were resident at the maturity date of the policies, a New York Abandoned Property Law requiring payment to the State of money owing by life insurers and remaining unclaimed for seven years does not deprive such foreign companies of property without due process. The relationship between New York and its residents who abandon claims against foreign insurance companies, and between New York and foreign insurance companies doing business therein is sufficiently close to give New York jurisdiction.[434] In Standard Oil Co. v. New Jersey,[435] a sharply divided Court held recently that due process is not violated by a statute escheating to the State shares of stock in a domestic corporation and unpaid dividends declared thereon, even though the last-known owners were nonresidents and the stock was issued and the dividends were held in another State. The State's power over the debtor corporation gives it power to seize the debts or demands represented by the stock and dividends.

Vested Rights, Remedial Rights, Political Candidacy

Inasmuch as the right to become a candidate for State office is a privilege only of State citizenship, an unlawful denial of such right is not a denial of a right of "property."[436] However, an existing right of action to recover damages for an injury is property, which a legislature has no power to destroy.[437] Thus, the retroactive repeal of a provision which made directors liable for moneys embezzled by corporate officers, by preventing enforcement of a liability which already had arisen, deprived certain creditors of their property without due process of law.[438] But while a vested cause of action is property, a person has no property, in the constitutional sense, in any particular form of remedy; and is guaranteed only the preservation of a substantial right to redress by any effective procedure.[439] Accordingly, a statute creating an additional remedy for enforcing stockholders' liability is not, as applied to stockholders then holding stock, violative of due process.[440] Nor is a law which lifts a statute of limitations and make possible a suit, theretofore barred, for the value of certain securities. "The Fourteenth Amendment does not make an act of State legislation void merely because it has some retrospective operation. * * * Some rules of law probably could not be changed retroactively without hardship and oppression, * * *, certainly it cannot be said that lifting the bar of a statute of limitation so as to restore a remedy lost through mere lapse of time is per se an offense against the Fourteenth Amendment."[441]

Man's Best Friend

A statute providing that no dog shall be entitled to the protection of the law unless placed upon the assessment rolls, and that in a civil action for killing a dog the owner cannot recover beyond the value fixed by himself in the last assessment preceding the killing is within the police power of the State.[442]

Control of Local Units of Government

The Fourteenth Amendment does not deprive a State of the power to determine what duties may be performed by local officers, nor whether they shall be appointed or popularly elected.[443] Its power over the rights and property of cities held and used for governmental purposes was unaltered by the ratification thereof.[444] Thus, notwithstanding that it imposes liability irrespective of the power of a city to have prevented the violence, a statute requiring cities to indemnify owners of property damaged by mobs or during riots effects no unconstitutional deprivation of the property of such municipalities.[445] Likewise, a person obtaining a judgment against a municipality for damages resulting from a riot is not deprived of property without due process of law by an act which so limits the municipality's taxing power as to prevent collection of funds adequate to pay it. As long as the judgment continues as an existing liability unconstitutional deprivation is experienced.[446]

Local units of government obliged to surrender property to other units newly created out of the territory of the former cannot successfully invoke the due process clause,[447] nor may taxpayers allege any unconstitutional deprivation as the result of changes in their tax burden attendant upon the consolidation of contiguous municipalities.[448] Nor is a statute requiring counties to reimburse cities of the first class but not other classes for rebates allowed for prompt payment of taxes in conflict with the due process clause.[449]

TAXATION

In General

It was not contemplated that the adoption of the Fourteenth Amendment would restrain or cripple the taxing power of the States.[450] Rather, the purpose of the amendment was to extend to the residents of the States the same protection against arbitrary State legislation affecting life, liberty, and property as was afforded against Congress by the Fifth Amendment.[451]

Public Purpose

Inasmuch as public moneys cannot be expended for other than public purposes, it follows that an exercise of the taxing power for merely private purposes is beyond the authority of the States.[452] Whether a use is public or private is ultimately a judicial question, however, and in the determination thereof the Court will be influenced by local conditions and by the judgments of State tribunals as to what are to be deemed public uses in any State.[453] Taxes levied for each of the following listed purposes have been held to be for a public use: city coal and fuel yard,[454] State bank, warehouse, elevator, flour-mill system, and homebuilding projects,[455] society for preventing cruelty to animals (dog license tax),[456] railroad tunnel,[457] books for school children attending private as well as public schools,[458] and relief of unemployment.[459]

Other Considerations Affecting Validity: Excessive Burden; Ratio of Amount to Benefit Received

When the power to tax exists, the extent of the burden is a matter for the discretion of the lawmakers;[460] and the Court will refrain from condemning a tax solely on the ground that it is excessive.[461] Nor can the constitutionality of the power to levy taxes be made to depend upon the taxpayer's enjoyment of any special benefit from use of the funds raised by taxation.[462]

Estate, Gift, and Inheritance Taxes

The power of testamentary disposition and the privilege of inheritance being legitimate subjects of taxation, a State may apply its inheritance tax to either the transmission, or the exercise of the legal power of transmission, of property by will or descent, or to the legal privilege of taking property by devise or descent.[463] Accordingly, an inheritance tax law, enacted after the death of a testator, but before the distribution of his estate, constitutionally may be imposed on the shares of legatees, notwithstanding that under the law of the State in effect on the date of such enactment, ownership of the property passed to the legatees upon the testator's death.[464] Equally consistent with due process is a tax on an inter vivos transfer of property by deed intended to take effect upon the death of the grantor.[465]

The due process clause places no restriction on a State as to the time at which an inheritance tax shall be levied or the property valued for purposes of such a tax; and for that reason a graduated tax on the transfer of contingent remainders, undiminished by the value of an intervening life estate but not payable until after the death of the life tenant, is valid.[466] Also, when a power of appointment has been granted by deed, transfer tax upon the exercise of the power by will is not a taking of property without due process of law, even though the instrument creating the power was executed prior to enactment of the taxing statute.[467] Likewise when a transfer tax law did not become effective until after a deed creating certain remainders had been executed, but the State court applied the tax on the theory that the vesting actually occurred after the tax law became operative, no denial of due process resulted. "* * *, the statute unquestionably might have made the tax applicable to this transfer, * * * [and the Court need] * * * not inquire * * * into the reasoning by which * * *" the State held the statute operative.[468]

On the other hand, when remainders indisputably vest at the time of the creation of a trust and a succession tax is enacted thereafter, the imposition of said tax on the transfer of such remainder is unconstitutional.[469] But where the remaindermen's interests are contingent and do not vest until the donor's death subsequent to the adoption of the statute, the tax is valid.[470] Another example of valid retroactive taxation is to be found in a New York statute amending a 1930 estate tax law. The amendment required inclusion in the decedent's gross estate, for tax computation purposes, of property in respect of which the decedent exercised after 1930, by will, a nongeneral power of appointment created prior to that year. The amendment reached such transfers under powers of appointment as under the previous statute escaped taxation. In sustaining application of the amendment, the Court held that the inclusion in the gross estate of property never owned by the decedent, but appointed by her will under a limited power which could not be exercised in favor of the decedent, her creditors, or her estate, did not deny due process to those who inherited the decedent's property, even though, because the tax rate was progressive, the net amount they inherited was less than it would have been if the appointed property had not been included in the gross estate.[471] In summation, the Court has noted that insofar as retroactive taxation of vested gifts has been voided, the justification therefor has been that "the nature or amount of the tax could not reasonably have been anticipated by the taxpayer at the time of the particular voluntary act which the [retroactive] statute later made the taxable event * * * Taxation, * * *, of a gift which * * * [the donor] might well have refrained from making had he anticipated the tax, * * * [is] thought to be so arbitrary * * * as to be a denial of due process."[472]

Other Types of Taxes

Income Taxes.--Any attempt by a State to measure a tax on one person's income by reference to the income of another is contrary to due process as guaranteed by the Fourteenth Amendment. Thus a husband cannot be taxed on the combined total of his and his wife's incomes as shown by separate returns, where her income is her separate property and where, by reason of the tax being graduated, its amount exceeded the sum of the taxes which would have been due had their separate incomes been separately assessed.[473] Moreover, a tax on income, unlike a gift tax, is not necessarily unconstitutional, because retroactive. Taxpayers cannot complain of arbitrary action or assert surprise in the retroactive apportionment of tax burdens to income when that is done by the legislature at the first opportunity after knowledge of the nature and amount of the income is available.[474]

Franchise Taxes.--A city ordinance imposing annual license taxes on light and power companies is not violative of the due process clause merely because the city has entered the power business in competition with such companies.[475] Nor does a municipal charter authorizing the imposition upon a local telegraph company of a tax upon the lines of the company within its limits at the rate at which other property is taxed, but upon an arbitrary valuation per mile, deprive the company of its property without due process of law, inasmuch as the tax is a mere franchise or privilege tax.[476]

Severance Taxes.--A State excise on the production of oil which extends to the royalty interest of the lessor in the oil produced under an oil lease as well as to the interest of the lessee engaged in the active work of production, the tax being apportioned between these parties according to their respective interest in the common venture, is not arbitrary as regards the lessor, but consistent with due process.[477]

Real Property Taxes (Assessment).--The maintenance of a high assessment in the face of declining value is merely another way of achieving an increase in the rate of property tax. Hence, an over-assessment constitutes no deprivation of property without due process of law.[478] Likewise, land subject to mortgage may be taxed for its full value without deduction of the mortgage debt from the valuation.[479]

Real Property Taxes: Special Assessments.--A State may defray the entire expense of creating, developing, and improving a political subdivision either from funds raised by general taxation, or by apportioning the burden among the municipalities in which the improvements are made, or by creating, or authorizing the creation of, tax districts to meet sanctioned outlays.[480] Where a State statute authorizes municipal authorities to define the district to be benefited by a street improvement and to assess the cost of the improvement upon the property within the district in proportion to benefits, their action in establishing the district and in fixing the assessments on included property, after due hearing of the owners as required by the statute cannot, when not arbitrary or fraudulent, be reviewed under the Fourteenth Amendment upon the ground that other property benefited by the improvement was not included.[481]

It is also proper to impose a special assessment for the preliminary expenses of an abandoned road improvement, even though the assessment exceeds the amount of the benefit which the assessors estimated the property would receive from the completed work.[482] Likewise a levy upon all lands within a drainage district of a tax of twenty-five cents per acre to defray preliminary expenses does not unconstitutionally take the property of landowners within that district who may not be benefited by the completed drainage plans.[483] On the other hand, when the benefit to be derived by a railroad from the construction of a highway will be largely offset by the loss of local freight and passenger traffic, an assessment upon such railroad is violative of due process,[484] whereas any gains from increased traffic reasonably expected to result from a road improvement will suffice to sustain an assessment thereon.[485] Also the fact that the only use made of a lot abutting on a street improvement is for a railway right of way does not make invalid, for lack of benefits, an assessment thereon for grading, curbing, and paving.[486] However, when a high and dry island was included within the boundaries of a drainage district from which it could not be benefited directly or indirectly, a tax on such island was held to be a deprivation of property without due process of law.[487] Finally, a State may levy an assessment for special benefits resulting from an improvement already made[488] and may validate an assessment previously held void for want of authority.[489]

JURISDICTION TO TAX

Land

Prior even to the ratification of the Fourteenth Amendment, it was settled principle that a State could not tax land situated beyond its limits; and subsequently elaborating upon that principle the Court has said that "* * *, we know of no case where a legislature has assumed to impose a tax upon land within the jurisdiction of another State, much less where such action has been defended by a court."[490] Insofar as a tax payment may be viewed as an exaction for the maintenance of government in consideration of protection afforded, the logic sustaining this rule is self-evident.

Tangible Personalty

As long as tangible personal property has a situs within its borders, a State validly may tax the same, whether directly through an ad valorem tax or indirectly through death taxes, irrespective of the residence of the owner.[491] By the same token, if tangible personal property makes only occasional incursions into other States, its permanent situs remains in the State of origin, and is taxable only by the latter.[492] The ancient maxim, mobilia sequuntur personam, which had its origin when personal property consisted in the main of articles appertaining to the person of the owner, yielded in modern times to the "law of the place where the property is kept and used." In recent years, the tendency has been to treat tangible personal property as "having a situs of its own for the purpose of taxation, and correlatively to * * * exempt [it] at the domicile of its owner."[493]The benefit-protection theory of taxation, upon which the Court has in fact relied to sustain taxation exclusively by the situs State, logically would seem to permit taxation by the domiciliary State as well as by the nondomiciliary State in which the tangibles are situate, especially when the former levies the tax on the owner in terms of the value of the tangibles. Thus far, however, the Court has taken the position that when the tangibles have a situs elsewhere, the domiciliary State can neither control such property nor extend to it or to its owner such measure of protection as would be adequate to meet the jurisdictional requirements of due process.

Intangible Personalty

General.--To determine whether a State, or States, may tax intangible personal property, the Court has applied the fiction, mobilia sequuntur personam and has also recognized that such property may acquire, for tax purposes, a business or commercial situs where permanently located; but it has never clearly disposed of the issue as to whether multiple personal property taxation of intangibles is consistent with due process. In the case of corporate stock, however, the Court has obliquely acknowledged that the owner thereof may be taxed at his own domicile, at the commercial situs of the issuing corporation, and at the latter's domicile; but, as of the present date, constitutional lawyers are speculating whether the Court would sustain a tax by all three jurisdictions, or by only two of them, and, if the latter, which two, the State of the commercial situs and of the issuing corporation's domicile, or the State of the owner's domicile and that of the commercial situs.[494]

Taxes on Intangibles Sustained.--Thus far, the Court has sustained the following personal property taxes on intangibles:

(1) A debt held by a resident against a nonresidence, evidenced by a bond of the debtor and secured by a mortgage on real estate in the State of the debtor's residence.[495]

(2) A mortgage owned and kept outside the State by a nonresident but on land within the State.[496]

(3) Investments, in the form of loans to residents, made by a resident agent of a nonresident creditor, are taxable to the nonresident creditor.[497]

(4) Deposits of a resident in a bank in another State, where he carries on a business and from which these deposits are derived, but belonging absolutely to him and not used in the business, are subject to a personal property tax in the city of his residence, whether or not they are subject to tax in the State where the business is carried on. The tax is imposed for the general advantage of living within the jurisdiction [benefit-protection theory], and may be measured by reference to the riches of the person taxed.[498]

(5) Membership owned by a nonresident in a domestic exchange, known as a chamber of commerce.[499]

(6) Membership by a resident in a stock exchange located in another State. "Double taxation" the Court observed "by one and the same State is not" prohibited "by the Fourteenth Amendment; much less is taxation by two States upon identical or closely related property interests falling within the jurisdiction of both, forbidden."[500]

(7) A resident owner may be taxed on stock held in a foreign corporation that does no business and has no property within the taxing State. The Court also added that "undoubtedly the State in which a corporation is organized may * * *, [tax] of all its shares whether owned by residents or nonresidents."[501]

(8) Stock in a foreign corporation owned by another foreign corporation transacting its business within the taxing State. The Court attached no importance to the fact that the shares were already taxed by the State in which the issuing corporation was domiciled and might also be taxed by the State in which the issuing corporation was domiciled and might also be taxed by the State in which the stock owner was domiciled; or at any rate did not find it necessary to pass upon the validity of the latter two taxes. The present levy was deemed to be tenable on the basis of the benefit-protection theory; namely, "the economic advantages realized through the protection, at the place * * *, [of business situs] of the ownership of rights in intangibles * * *"[502]

(9) Shares owned by nonresident shareholders in a domestic corporation, the tax being assessed on the basis of corporate assets and payable by the corporation either out of its general fund or by collection from the shareholder. The shares represent an aliquot portion of the whole corporate assets, and the property right so represented arises where the corporation has its home, and is therefore within the taxing jurisdiction of the State, notwithstanding that ownership of the stock may also be a taxable subject in another State.[503]

(10) A tax on the dividends of a corporation may be distributed ratably among stockholders regardless of their residence outside the State, the stockholders being the ultimate beneficiaries of the corporation's activities within the taxing State and protected by the latter and subject to its jurisdiction.[504] This tax, though collected by the corporation, is on the transfer to a stockholder of his share of corporate dividends within the taxing State, and is deducted from said dividend payments.[505]

(11) Stamp taxes on the transfer within the taxing State by one nonresident to another of stock certificates issued by a foreign corporation;[506] and upon promissory notes executed by a domestic corporation, although payable to banks in other States.[507] These taxes, however, were deemed to have been laid, not on the property, but upon an event, the transfer in one instance, and execution, in the latter, which took place in the taxing State.

Taxes on Intangibles Invalidated.--The following personal property taxes on intangibles have not been upheld:

(1) Debts evidenced by notes in safekeeping within the taxing State, but made and payable and secured by property in a second State and owned by a resident of a third State.[508]

(2) A property tax sought to be collected from a life beneficiary on the corpus of a trust composed of property located in another State and as to which said beneficiary had neither control nor possession, apart from the receipt of income therefrom.[509] However, a personal property tax may be collected on one-half of the value of the corpus of a trust from a resident who is one of the two trustees thereof, notwithstanding that the trust was created by the will of a resident of another State in respect of intangible property located in the latter State, at least where it does not appear that the trustee is exposed to the danger of other ad valorem taxes in another State.[510] The first case, Brooke v. Norfolk,[511] is distinguishable by virtue of the fact that the property tax therein voided was levied upon a resident beneficiary rather than upon a resident trustee in control of nonresident intangibles. Different too is Safe Deposit and Trust Co. v. Virginia,[512] where a property tax was unsuccessfully demanded of a nonresident trustee with respect to nonresident intangibles under its control.

(3) A tax, measured by income, levied on trust certificates held by a resident, representing interests in various parcels of land (some inside the State and some outside), the holder of the certificates, though without a voice in the management of the property, being entitled to a share in the net income and, upon sale of the property, to the proceeds of the sale.[513]

Transfer Taxes (Inheritance, Estate, Gift Taxes).--Being competent to regulate exercise of the power of testamentary disposition and the privilege of inheritance, a State may base its succession taxes upon either the transmission, or an exercise of the legal power of transmission, of property by will or by descent, or the enjoyment of the legal privilege of taking property by devise or descent.[514] But whatever may be the justification of their power to levy such taxes, States have consistently found themselves restricted by the rule, established as to property taxes in 1905 in Union Refrigerator Transit Co. v. Kentucky,[515] and subsequently reiterated in Frick v. Pennsylvania[516] in 1925, which precludes imposition of transfer taxes upon tangible personal property by any State other than the one in which such tangibles are permanently located or have an actual situs. In the case of intangibles, however, the States have been harassed by the indecision of the Supreme Court; for to an even greater extent than is discernible in its treatment of property taxes on intangibles, it has oscillated in upholding, then rejecting, and again currently sustaining the levy by more than one State of death taxes upon intangibles comprising the estate of a decedent.

Until 1930, transfer taxes upon intangibles levied by both the domiciliary as well as nondomiciliary, or situs State, were with rare exceptions approved. Thus, in Bullen v. Wisconsin,[517] the domiciliary State of the creator of a trust was held competent to levy an inheritance tax, upon the death of the settlor, on his trust fund consisting of stocks, bonds, and notes kept and administered in another State and as to which the settlor reserved the right to control disposition and to direct payment of income for life, such reserved powers being equivalent to a fee. Cognizance was taken of the fact that the State in which these intangibles had their situs had also taxed the trust. Levy of an inheritance tax by a nondomiciliary State was sustained on similar grounds in Wheeler v. Sohmer, wherein it was held that the presence of a negotiable instrument was sufficient to confer jurisdiction upon the State seeking to tax its transfer.[518] On the other hand, the mere ownership by a foreign corporation of property in a nondomiciliary State was held insufficient to support a tax by that State on the succession to shares of stock in that corporation owned by a nonresident decedent.[519] Also against the trend was Blodgett v. Silberman[520] wherein the Court defeated collection of a transfer tax by the domiciliary State by treating coins and bank notes deposited by a decedent in a safe deposit box in another State as tangible property, albeit it conceded that the domiciliary State could tax the transfer of books and certificates of indebtedness found in that safe deposit box as well as the decedent's interest in a foreign partnership.

In the course of about two years following the recent Depression, the Court handed down a group of four decisions which, for the time being at any rate, placed the stamp of disapproval upon multiple transfer and--by inference--other multiple taxation of intangibles. Asserting, as it did in one of these cases, that "practical considerations of wisdom, convenience and justice alike dictate the desirability of a uniform general rule confining the jurisdiction to impose death transfer taxes as to intangibles to the State of the [owner's] domicile; * * *"[521] the Court, through consistent application of the maxim, mobilia sequuntur personam, proceeded to deny the right of nondomiciliary States to tax and to reject as inadequate jurisdictional claims of the latter founded upon such bases as control, benefit, and protection or situs. During this interval, 1930-1932, multiple transfer taxation of intangibles came to be viewed, not merely as undesirable, but as so arbitrary and unreasonable as to be prohibited by the due process clause.

Beginning, in 1930, with Farmers' Loan and Trust Co. v. Minnesota,[522] the Court reversed its former ruling in Blackstone v. Miller,[523] in which it had held that the State in which a debtor was domiciled or a bank located could levy an inheritance tax on the transfer of the debt or the deposit, notwithstanding that the creditor had his domicile in a different State. Farmers' Loan and Trust Co. v. Minnesota, strictly appraised, was authority simply for the proposition that jurisdiction over a debtor, in this instance a State which had issued bonds held by a nonresident creditor, was inadequate to sustain a tax by that debtor State on the transfer of such securities. The securities in question, which had never been used by the creditor in any business in the issuing State, were located in the State in which the creditor had his domicile, and were deemed to be taxable only in the latter. In Baldwin v. Missouri,[524] a nondomiciliary State was prevented from applying its inheritance tax to bonds, bank deposits, and promissory notes, all physically present within its limits and some of them secured by lands therein, when the owner thereof was domiciled in another State. A like result, although on this occasion on grounds of lack of evidence of any "business situs," was reached in Beidler v. South Carolina Tax Commission,[525] in which the Court ruled that a State, upon the death of a nonresident creditor, may not apply its inheritance tax to a debt [open account] owned by one of its domestic corporations. Finally, in First National Bank v. Maine,[526] which has since been overruled in State Tax Commission v. Aldrich,[527] the Court declared that only the State in which the owner of corporate stock died domiciled was empowered to tax the succession to the shares by will or inheritance and that the State in which the issuing corporation was domiciled could not do so.

Without expressly overruling more than one of these four cases condemning multiple succession taxation of intangibles, the Court, beginning with Curry v. McCanless[528] in 1939, announced a departure from the "doctrine, of recent origin, that the Fourteenth Amendment precludes the taxation of any interest in the same intangible in more than one State * * *." Taking cognizance of the fact that this doctrine had never been extended to the field of income taxation or consistently applied in the field of property taxation, where the concepts of business situs as well as of domiciliary situs had been utilized to sustain double taxation, especially in connection with shares of corporate stock, the Court declared that a correct interpretation of constitutional requirements would dictate the following conclusions: "From the beginning of our constitutional system control over the person at the place of his domicile and his duty there, common to all citizens, to contribute to the support of government have been deemed to afford an adequate constitutional basis for imposing on him a tax on the use and enjoyment of rights in intangibles measured by their value. * * * But when the taxpayer extends his activities with respect to his intangibles, so as to avail himself of the protection and benefit of the laws of another State, in such a way as to bring his person or * * * [his intangibles] within the reach of the tax gatherer there, the reason for a single place of taxation no longer obtains, * * * [However], the State of domicile is not deprived, by the taxpayer's activities elsewhere, of its constitutional jurisdiction to tax." In accordance with this line of reasoning, Tennessee, where a decedent died domiciled, and Alabama, where a trustee, by conveyance from said decedent, held securities on specific trusts, were both deemed competent to impose a tax on the transfer of these securities passing under the will of the decedent. "In effecting her purposes," the testatrix was viewed as having "brought some of the legal interests which she created within the control of one State by selecting a trustee there, and others within the control of the other State, by making her domicile there." She had found it necessary to invoke "the aid of the law of both States, and her legatees" were subject to the same necessity.

These statements represented a belated adoption of the views advanced by Chief Justice Stone in dissenting or concurring opinions which he filed in three of the four decisions rendered during 1930-1932. By the line of reasoning taken in these opinions, if protection or control was extended to, or exercised over, intangibles or the person of their owner, then as many States as afforded such protection or were capable of exerting such dominion should be privileged to tax the transfer of such property. On this basis, the domiciliary State would invariably qualify as a State competent to tax and a nondomiciliary State, so far as it could legitimately exercise control or could be shown to have afforded a measure of protection that was not trivial or insubstantial.

On the authority of Curry v. McCanless, the Court, in Pearson v. McGraw,[529] also sustained the application of an Oregon transfer tax to intangibles handled by an Illinois trust company and never physically present in Oregon, jurisdiction to tax being viewed as dependent, not on the location of the property in the State, but on control over the owner who was a resident of Oregon. In Graves v. Elliott,[530] decided in the same year, the Court upheld the power of New York, in computing its estate tax, to include in the gross estate of a domiciled decedent the value of a trust of bonds managed in Colorado by a Colorado trust company and already taxed on its transfer by Colorado, which trust the decedent had established while in Colorado and concerning which he had never exercised any of his reserved powers of revocation or change of beneficiaries. It was observed that "the power of disposition of property is the equivalent of ownership, * * * and its exercise in the case of intangibles is * * * [an] appropriate subject of taxation at the place of the domicile of the owner of the power. Relinquishment at death, in consequence of the non-exercise in life, of a power to revoke a trust created by a decedent is likewise an appropriate subject of taxation."[531] Consistent application of the principle enunciated in Curry v. McCanless is also discernible in two later cases in which the Court sustained the right of a domiciliary State to tax the transfer of intangibles kept outside its boundaries, notwithstanding that "in some instances they may be subject to taxation in other jurisdictions, to whose control they are subject and whose legal protection they enjoyed." In Graves v. Schmidlapp[532] an estate tax was levied upon the value of the subject of a general testamentary power of appointment effectively exercised by a resident donee over intangibles held by trustees under the will of a nonresident donor of the power. Viewing the transfer of interest in said intangibles by exercise of the power of appointment as the equivalent of ownership, the Court quoted from McCulloch v. Maryland[533] to the effect that the power to tax "'is an incident of sovereignty, and is coextensive with that to which it is an incident.'" Again, in Central Hanover Bank & T. Co. v. Kelly,[534] the Court approved a New Jersey transfer tax imposed on the occasion of the death of a New Jersey grantor of an irrevocable trust executed, and consisting of securities located, in New York, and providing for the disposition of the corpus to two nonresident sons.

The costliness of multiple taxation of estates comprising intangibles is appreciably aggravated when each of several States founds its tax not upon different events or property rights but upon an identical basis; namely that, the decedent died domiciled within its borders. Not only is an estate then threatened with excessive contraction but the contesting States may discover that the assets of the estate are insufficient to satisfy their claims. Thus, in Texas v. Florida,[535] the State of Texas filed an original petition in the Supreme Court, in which it asserted that its claim, together with those of three other States, exceeded the value of the estate, that the portion of the estate within Texas alone would not suffice to discharge its own tax, and that its efforts to collect its tax might be defeated by adjudications of domicile by the other States. The Supreme Court disposed of this controversy by sustaining a finding that the decedent had been domiciled in Massachusetts, but intimated that thereafter it would take jurisdiction in like situations only in the event that an estate did not exceed in value the total of the conflicting demands of several States and that the latter were confronted with a prospective inability to collect.

Corporation Taxes

(1) Intangible Personal Property.--A State in which a foreign corporation has acquired a commercial domicile and in which it maintains its general business offices may tax the latter's bank deposits and accounts receivable even though the deposits are outside the State and the accounts receivable arise from manufacturing activities in another State.[536] Similarly, a nondomiciliary State in which a foreign corporation did business can tax the "corporate excess" arising from property employed and business done in the taxing State.[537] On the other hand, when the foreign corporation transacts only interstate commerce within a State, any excise tax on such excess is void, irrespective of the amount of the tax.[538] A domiciliary State, however, may tax the excess of market value of outstanding capital stock over the value of real and personal property and certain indebtedness of a domestic corporation even though this "corporate excess" arose from property located and business done in another State and was there taxable. Moreover, this result follows whether the tax is considered as one on property or on the franchise.[539] Also a domiciliary State, which imposes no franchise tax on a stock fire insurance corporation, validly may assess a tax on the full amount of its paid-in capital stock and surplus, less deductions for liabilities, notwithstanding that such domestic corporation concentrates its executive, accounting, and other business offices in New York, and maintains in the domiciliary State only a required registered office at which local claims are handled. Despite "the vicissitudes which the so-called 'jurisdiction-to-tax' doctrine has encountered * * *," the presumption persists that intangible property is taxable by the State of origin.[540] But a property tax on the capital stock of a domestic company which includes in the appraisement thereof the value of coal mined in the taxing State but located in another State awaiting sale deprives the corporation of its property without due process of law.[541] Also void for the same reason is a State tax on the franchise of a domestic ferry company which includes in the valuation thereof the worth of a franchise granted to the said company by another State.[542]

(2) Privilege Taxes Measured by Corporate Stock.--Since the tax is levied not on property but on the privilege of doing business in corporate form, a domestic corporation may be subjected to a privilege tax graduated according to paid up capital stock, even though the latter represents capital not subject to the taxing power of the State.[543] By the same token, the validity of a franchise tax, imposed on a domestic corporation engaged in foreign maritime commerce and assessed upon a proportion of the total franchise value equal to the ratio of local business done to total business, is not impaired by the fact that the total value of the franchise was enhanced by property and operations carried on beyond the limits of the State.[544] However, a State, under the guise of taxing the privilege of doing an intrastate business, cannot levy on property beyond its borders; and, therefore, as applied to foreign corporations, a license tax based on authorized capital stock is void,[545] even though there be a maximum to the fee,[546] unless apportioned according to some method, as, for example, a franchise tax based on such proportion of outstanding capital stock as is represented by property owned and used in business transacted in the taxing State.[547] An entrance fee, on the other hand, collected only once as the price of admission to do an intrastate business, is distinguishable from a tax and accordingly may be levied on a foreign corporation on the basis of a sum fixed in relation to the amount of authorized capital stock (in this instance, a $5,000 fee on an authorized capital of $100,000,000).[548]

(3) Privilege Taxes Measured by Gross Receipts.--A municipal license tax imposed as a percentage of the receipts of a foreign corporation derived from the sales within and without the State of goods manufactured in the city is not a tax on business transactions or property outside the city and therefore does not violate the due process clause.[549] But a State is wanting in jurisdiction to extend its privilege tax to the gross receipts of a foreign contracting corporation for work done outside the taxing State in fabricating equipment later installed in the taxing State. Unless the activities which are the subject of the tax are carried on within its territorial limits, a State is not competent to impose such a privilege tax.[550]

(4) Taxes on Tangible Personal Property.--When rolling stock is permanently located and employed in the prosecution of a business outside the boundaries of a domiciliary State, the latter has no jurisdiction to tax the same.[551] Vessels, however, inasmuch as they merely touch briefly at numerous ports, never acquire a taxable situs at any one of them, and are taxable by the domicile of their owners or not at all;[552] unless, of course, the ships operate wholly on the waters within one State, in which event they are taxable there and not at the domicile of the owners.[553] Only recently airplanes have been treated in a similar manner for tax purposes. Noting that the entire fleet of airplanes of an interstate carrier were "never continuously without the [domiciliary] State during the whole tax year," that such airplanes also had their "home port" in the domiciliary State, and that the company maintained its principal office therein, the Court sustained a personal property tax applied by the domiciliary State to all the airplanes owned by the taxpayer. No other State was deemed able to accord the same protection and benefits as the taxing State in which the taxpayer had both its domicile and its business situs; and the doctrines of Union Refrigerator Transit Co. v. Kentucky,[554] as to the taxability of permanently located tangibles, and that of apportionment, for instrumentalities engaged in interstate commerce[555] were held to be inapplicable.[556]

Conversely, a nondomiciliary State, although it may not tax property belonging to a foreign corporation which has never come within its borders, may levy on movables which are regularly and habitually used and employed therein. Thus, while the fact that cars are loaded and reloaded at a refinery in a State outside the owner's domicile does not fix the situs of the entire fleet in such State, the latter may nevertheless tax the number of cars which on the average are found to be present within its borders.[557] Moreover, in assessing that part of a railroad within its limits, a State need not treat it as an independent line, disconnected from the part without, and place upon the property within the State only a value which could be given to it if operated separately from the balance of the road. The State may ascertain the value of the whole line as a single property and then determine the value of the part within on a mileage basis, unless there be special circumstances which distinguish between conditions in the several States.[558] But no property of an interstate carrier can be taken into account unless it can be seen in some plain and fairly intelligible way that it adds to the value of the road and the rights exercised in the State.[559] Also, a State property tax on railroads, which is measured by gross earnings apportioned to mileage, is not unconstitutional in the absence of proof that it exceeds what would be legitimate as an ordinary tax on the property valued as part of a going concern or that it is relatively higher than taxes on other kinds of property.[560] The tax reaches only revenues derived from local operations, and the fact that the apportionment formula does not result in mathematical exactitude is not a constitutional defect.[561]

Income and Other Taxes

Individual Incomes.--Consistently with due process of law, a State annually may tax the entire net income of resident individuals from whatever source received,[562] and that portion of a nonresident's net income derived from property owned, and from any business, trade, or profession carried on, by him within its borders.[563] Jurisdiction, in the case of residents, is founded upon the rights and privileges incident to domicile; that is, the protection afforded the recipient of income in his person, in his right to receive the income, and in his enjoyment of it when received, and, in the case of nonresidents, upon dominion over either the receiver of the income or the property or activity from which it is derived, and upon the obligation to contribute to the support of a government which renders secure the collection of such income. Accordingly, a State may tax residents on income from rents of land located outside the State and from interest on bonds physically without the State and secured by mortgage upon lands similarly situated;[564] and the income received by a resident beneficiary from securities held by a trustee in a trust created and administered in another State, and not directly taxable to the trustee.[565] Nor does the fact that another State has lawfully taxed identical income in the hands of trustees operating therein necessarily destroy a domiciliary State's right to tax the receipt of said income by a resident beneficiary. "The taxing power of a State is restricted to her confines and may not be exercised in respect of subjects beyond them."[566] Likewise, even though a nonresident does no business within a State, the latter may tax the profits realized by the nonresident upon his sale of a right appurtenant to membership in a stock exchange within its borders.[567]

Incomes of Foreign Corporations.--A tax based on the income of a foreign corporation may be determined by allocating to the State a proportion of the total income which the tangible property in the State bears to the total.[568] However, such a basis may work an unconstitutional result if the income thus attributed to the State is out of all appropriate proportion to the business there transacted by the corporation. Evidence may always be submitted which tends to show that a State has applied a method which, albeit fair on its face, operates so as to reach profits which are in no sense attributable to transactions within its jurisdiction.[569] Nevertheless, a foreign corporation is in error when it contends that due process is denied by a franchise tax measured by income, which is levied, not upon net income from intrastate business alone, but on net income justly attributable to all classes of business done within the State, interstate and foreign, as well as intrastate business.[570] Inasmuch as the privilege granted by a State to a foreign corporation of carrying on local business supports a tax by that State on the income derived from that business, it follows that the Wisconsin privilege dividend tax, consistently with the due process clause, may be applied to a Delaware corporation, having its principal offices in New York, holding its meetings and voting its dividends in New York, and drawing its dividend checks on New York bank accounts. The tax is imposed on the "privilege of declaring and receiving dividends" out of income derived from property located and business transacted in the State, equal to a specified percentage of such dividends, the corporation being required to deduct the tax from dividends payable to resident and nonresident shareholders and pay it over to the State.[571]

Chain Store Taxes.--A tax on chain stores, at a rate per store determined by the number of stores both within and without the State, is not unconstitutional as a tax in part upon things beyond the jurisdiction of the State.[572]

Insurance Company Taxes.--A privilege tax on the gross premiums received by a foreign life insurance company at its home office for business written in the State does not deprive the company of property without due process;[573] but a tax is bad when the company has withdrawn all its agents from the State and has ceased to do business, merely continuing to be bound to policyholders resident therein and receiving at its home office the renewal premiums.[574] Distinguishable therefrom is the following tax which was construed as having been levied, not upon annual premiums nor upon the privilege merely of doing business during the period that the company actually was within the State, but upon the privilege of entering and engaging in business, the percentage "on the annual premiums to be paid throughout the life of the policies issued." By reason of this difference a State may continue to collect such tax even after the company's withdrawal from the State.[575]

A State which taxes the insuring of property within its limits may lawfully extend its tax to a foreign insurance company which contracts with an automobile sales corporation in a third State to insure its customers against loss of cars purchased through it, so far as the cars go into possession of purchasers within the taxing State.[576] On the other hand, a foreign corporation admitted to do a local business, which insures its property with insurers in other States who are not authorized to do business in the taxing State, cannot constitutionally be subjected to a 5% tax on the amount of premiums paid for such coverage.[577] Likewise a Connecticut life insurance corporation, licensed to do business in California, which negotiated reinsurance contracts in Connecticut, received payment of premiums thereon in Connecticut, and was there liable for payment of losses claimed thereunder, cannot be subjected by California to a privilege tax measured by gross premiums derived from such contracts, notwithstanding that the contracts reinsured other insurers authorized to do business in California and protected policies effected in California on the lives of residents therein. The tax cannot be sustained whether as laid on property, business done, or transactions carried on, within California, or as a tax on a privilege granted by that State.[578]

When policy loans to residents are made by a local agent of a foreign insurance company, in the servicing of which notes are signed, security taken, interest collected, and debts are paid within the State, such credits are taxable to the company, notwithstanding that the promissory notes evidencing such credits are kept at the home office of the insurer.[579] But when a resident policyholder's loan is merely charged against the reserve value of his policy, under an arrangement for extinguishing the debt and interest thereon by deduction from any claim under the policy, such credit is not taxable to the foreign insurance company.[580] Premiums due from residents on which an extension has been granted by foreign companies also are credits on which the latter may be taxed by the State of the debtor's domicile;[581] and the mere fact that the insurers charge these premiums to local agents and give no credit directly to policyholders does not enable them to escape this tax.[582]

PROCEDURE IN TAXATION

In General

Exactly what due process requires in the assessment and collection of general taxes has never been decided by the Supreme Court. While it was held that "notice to the owner at some stage of the proceedings, as well as an opportunity to defend, is essential" for imposition of special taxes, it has also ruled that laws for assessment and collection of general taxes stand upon a different footing and are to be construed with the utmost liberality, even to the extent of acknowledging that no notice whatever is necessary.[583] Due process of law as applied to taxation does not mean judicial process;[584] neither does it require the same kind of notice as is required in a suit at law, or even in proceedings for taking private property under the power of eminent domain.[585] If a taxpayer is given an opportunity to test the validity of a tax at any time before it is final, whether the proceedings for review take place before a board having a quasi-judicial character, or before a tribunal provided by the State for the purpose of determining such questions, due process of law is not denied.[586]

Notice and Hearing in Relation to General Taxes

"Of the different kinds of taxes which the State may impose, there is a vast number of which, from their nature, no notice can be given to the taxpayer, nor would notice be of any possible advantage to him, such as poll taxes, license taxes (not dependent upon the extent of his business), and generally, specific taxes on things, or persons, or occupations. In such cases the legislature, in authorizing the tax, fixes its amount, and that is the end of the matter. If the tax be not paid, the property of the delinquent may be sold, and he be thus deprived of his property. Yet there can be no question, that the proceeding is due process of law, as there is no inquiry into the weight of evidence, or other element of a judicial nature, and nothing could be changed by hearing the taxpayer. No right of his is, therefore, invaded. Thus, if the tax on animals be a fixed sum per head, or on articles a fixed sum per yard, or bushel, or gallon, there is nothing the owner can do which can affect the amount to be collected from him. So, if a person wishes a license to do business of a particular kind, or at a particular place, such as keeping a hotel or a restaurant, or selling liquors, or cigars, or clothes, he has only to pay the amount required by law and go into the business. There is no need in such cases for notice or hearing. So, also, if taxes are imposed in the shape of licenses for privileges, such as those on foreign corporations for doing business in the State, or on domestic corporations for franchises, if the parties desire the privilege, they have only to pay the amount required. In such cases there is no necessity for notice or hearing. The amount of the tax would not be changed by it."[587]

Notice and Hearing in Relation to Assessments

"But where a tax is levied on property not specifically, but according to its value, to be ascertained by assessors appointed for that purpose upon such evidence as they may obtain, a different principle comes in. The officers in estimating the value act judicially; and in most of the States provision is made for the correction of errors committed by them, through boards of revision or equalization, sitting at designated periods provided by law to hear complaints respecting the justice of the assessments. The law in prescribing the time when such complaints will be heard, gives all the notice required, and the proceeding by which the valuation is determined, though it may be followed, if the tax be not paid, by a sale of the delinquent's property, is due process of law."[588]

Nevertheless, it has never been considered necessary to the validity of a tax that the party charged shall have been present, or had an opportunity to be present, in some tribunal when he was assessed.[589] Where a tax board has its time of sitting fixed by law and where its sessions are not secret, no obstacle prevents the appearance of any one before it to assert a right or redress a wrong; and in the business of assessing taxes, this is all that can be reasonably asked.[590] Nor is there any constitutional command that notice of an assessment as well as an opportunity to contest it be given in advance of the assessment. It is enough that all available defenses may be presented to a competent tribunal during a suit to collect the tax and before the demand of the State for remittance becomes final.[591] A hearing before judgment, with full opportunity to submit evidence and arguments being all that can be adjudged vital, it follows that rehearings and new trials are not essential to due process of law.[592] One hearing is sufficient to constitute due process;[593] and the requirements of due process are also met if a taxpayer, who had no notice of a hearing, does receive notice of the decision reached thereat, and is privileged to appeal the same and, on appeal, to present evidence and be heard on the valuation of his property.[594]

Notice and Hearing in Relation to Special Assessments

However, when assessments are made by a political subdivision, a taxing board or court, according to special benefits, the property owner is entitled to be heard as to the amount of his assessments and upon all questions properly entering into that determination.[595] The hearing need not amount to a judicial inquiry,[596] but a mere opportunity to submit objections in writing, without the right of personal appearance, is not sufficient.[597] If an assessment for a local improvement is made in accordance with a fixed rule prescribed by legislative act, the property owner is not entitled to be heard in advance on the question of benefits.[598] On the other hand, if the area of the assessment district was not determined by the legislature, a landowner does have the right to be heard respecting benefits to his property before it can be included in the improvement district and assessed; but due process is not denied if, in the absence of actual fraud or bad faith, the decision of the agency vested with the initial determination of benefits is made final.[599] The owner has no constitutional right to be heard in opposition to the launching of a project which may end in assessment; and once his land has been duly included within a benefit district, the only privilege which he thereafter enjoys is to a hearing upon the apportionment; that is, the amount of the tax which he has to pay.[600] Nor can he rightfully complain because the statute renders conclusive, after said hearing, the determination as to apportionment by the same body which levied the assessment.[601]

More specifically, where the mode of assessment resolves itself into a mere mathematical calculation, there is no necessity for a hearing.[602] Statutes and ordinances providing for the paving and grading of streets, the cost thereof to be assessed on the front foot rule, do not, by their failure to provide for a hearing or review of assessments, generally deprive a complaining owner of property without due process of law.[603] In contrast, when an attempt is made to cast upon particular property a certain proportion of the construction cost of a sewer not calculated by any mathematical formula, the taxpayer has a right to be heard.[604]

Sufficiency and Manner of Giving Notice

Notice, insofar as it is required, may be either personal, or by publication, or by statute fixing the time and place of hearing.[605] A State statute, consistently with due process, may designate a corporation as the agent of a nonresident stockholder to receive notice and to represent him in proceedings for correcting assessments.[606] Also "where the State * * * [desires] to sell land for taxes upon proceedings to enforce a lien for the payment thereof, it may proceed directly against the land within the jurisdiction of the Court, and a notice which permits all interested, who are 'so minded,' to ascertain that it is to be subjected to sale to answer for taxes, and to appear and be heard, whether to be found within the jurisdiction or not, is due process of law within the Fourteenth Amendment * * *."[607] A description, even though it not be technically correct, which identifies the land will sustain an assessment for taxes and a notice of sale therefor when delinquent. If the owner knows that the property so described is his, he is not, by reason of the insufficient description, deprived of his property without due process. Where tax proceedings are in rem, owners are bound to take notice thereof, and to pay taxes on their property, even if assessed to unknown or other persons; and if an owner stands by and sees his property sold for delinquent taxes, he is not thereby wrongfully deprived of his property.[608]

Sufficiency of Remedy

When no other remedy is available, due process is denied by a judgment of a State court withholding a decree in equity to enjoin collection of a discriminatory tax.[609] Requirements of due process are similarly violated by a statute which limits a taxpayer's right to challenge an assessment to cases of fraud or corruption,[610] and by a State tribunal which prevents a recovery of taxes imposed in violation of the Constitution and laws of the United States by invoking a State law limiting suits to recover taxes alleged to have been assessed illegally to taxes paid at the time and in the manner provided by said law.[611]

Laches

Persons failing to avail themselves of an opportunity to object and be heard, cannot thereafter complain of assessments as arbitrary and unconstitutional.[612] Likewise a car company, which failed to report its gross receipts as required by statute, has no further right to contest the State comptroller's estimate of those receipts and his adding thereto the 10% penalty permitted by law.[613]

Collection of Taxes

To reach property which has escaped taxation, a State may tax the estates of decedents for a period anterior to death and grant proportionate deductions for all prior taxes which the personal representative can prove to have been paid.[614] Collection of an inheritance tax also may be expedited by a statute requiring the sealing of safe deposit boxes for at least ten days after the death of the renter and obliging the lessor to retain assets found therein sufficient to pay the tax that may be due the State.[615] Moreover, with a view to achieving a like result in the case of gasoline taxes, a State may compel retailers to collect such taxes from consumers and, under penalty of a fine for delinquency, to remit monthly the amounts thus collected.[616] Likewise, a tax on the tangible personal property of a nonresident owner may be collected from the custodian or possessor of such property, and the latter, as an assurance of reimbursement, may be granted a lien on such property.[617] In collecting personal income taxes, however, most States require employers to deduct and withhold the tax from the wages of only nonresident employees; but the duty thereby imposed on the employer has never been viewed as depriving him of property without due process of law, nor has the adjustment of his system of accounting and paying salaries which withholding entails been viewed as an unreasonable regulation of the conduct of his business.[618]

As a State may provide in advance that taxes shall bear interest from the time they become due, it may with equal validity stipulate that taxes which have become delinquent shall bear interest from the time the delinquency commenced. Likewise, a State may adopt new remedies for the collection of taxes and apply these remedies to taxes already delinquent.[619] After liability of a taxpayer has been fixed by appropriate procedure, collection of a tax by distress and seizure of his person does not deprive him of liberty without due process of law.[620] Nor is a foreign insurance company denied due process of law when its personal property is distrained to satisfy unpaid taxes.[621]

The requirements of due process are fulfilled by a statute which, in conjunction with affording an opportunity to be heard, provides for the forfeiture of titles to land for failure to list and pay taxes thereon for certain specified years.[622] No less constitutional, as a means of facilitating collection, is an in rem proceeding, to which the land alone is made a party, whereby tax liens on land are foreclosed and all pre-existing rights or liens are eliminated by a sale under a decree in said proceeding.[623] On the other hand, while the conversion of an unpaid special assessment into both a personal judgment therefor against the owner as well as a charge on the land is consistent with the Fourteenth Amendment,[624] a judgment imposing personal liability against a nonresident taxpayer over whom the State court acquired no jurisdiction is void.[625] Apart from such restraints, however, a State is free to adopt new remedies for the collection of taxes and even to apply new remedies to taxes already delinquent.[626]

EMINENT DOMAIN

Historical Development

"Prior to the adoption of the Fourteenth Amendment," the power of eminent domain, which is deemed to inhere in every State and to be essential to the performance of its functions,[627] "was unrestrained by any federal authority."[628] An express prohibition against the taking of private property for public use without just compensation was contained in the Fifth Amendment; but an effort to extend the application thereof to the States had been defeated by the decision, in 1833, in Barron v. Baltimore.[629] The most nearly comparable provision included in the Fourteenth Amendment, was the prohibition against a State depriving a person of property without due process of law. The Court was accordingly confronted with the task of determining whether this restraint on State action, minus the explicit provision for just compensation found in the Fifth Amendment, afforded property owners the same measure of protection as did the latter in its operation as a limitation on the Federal Government. The Court's initial answer to this question, as set forth in Davidson v. New Orleans,[630] decided in 1878, was in the negative; and on the ground of the omission of the clause found in the Fifth Amendment from the terms of the Fourteenth, it refused to equate the just compensation with due process. Within less than a decade thereafter, however, the Court modified its position, and in Chicago, B. & Q.R. Co. v. Chicago,[631] seven Justices unequivocally rejected the contention, obviously based on the Davidson Case that "the question as to the amount of compensation to be awarded to the railroad company was one of local law merely, and [insofar as] that question was determined in the mode prescribed by the Constitution and [State] law, the [property owner] appearing and having full opportunity to be heard, the requirement of due process of law was observed." On the contrary, the seven Justices maintained that although a State "legislature may prescribe a form of procedure to be observed in the taking of private property for public use, * * * it is not due process of law if provision be not made for compensation * * * The mere form of the proceeding instituted against the owner, * * *, cannot convert the process used into due process of law, if the necessary result be to deprive him of his property without compensation."

Public Use

While acknowledging that agreement was virtually nonexistent as to "what are public uses for which the right of compulsory taking may be employed," the Court, until 1946, continued to reiterate "the nature of the uses, whether public or private, is ultimately a judicial question."[632] But because of proclaimed willingness to defer to local authorities, especially "the highest court of the State" in resolving such an issue,[633] the Court, as early as 1908, was obliged to admit that, notwithstanding its retention of the power of judicial review, "no case is recalled where this Court has condemned as a violation of the Fourteenth Amendment a taking upheld by the State court as a taking for public uses * * *"[634] In 1946, however, without endeavoring to ascertain whether "the scope of the judicial power to determine what is a 'public use' in Fourteenth Amendment controversies, * * *" is the same as under the Fifth Amendment, a majority of the Justices, in a decision involving the Federal Government, declared that "it is the function of * * * [the legislative branch] to decide what type of taking is for a public use * * *"[635]

Necessity for a Taking

"Once it is admitted or judicially determined that a proposed condemnation is for a public purpose and within the statutory authority, a political or judicially nonreviewable question may emerge, to wit, the necessity or expediency of the condemnation of the particular property."[636] The necessity and expediency of the taking are legislative questions to be determined by such agency and in such mode as the State may designate.[637]

What Constitutes a Taking For a Public Use

To constitute a public use within the law of eminent domain, it is not essential that an entire community should directly participate in or enjoy an improvement, and, in ascertaining whether a use is public, not only present demands of the public but those which may be fairly anticipated in the future may be considered.[638] Moreover, it is also not necessary that property should be absolutely taken, in the narrowest sense of the word, to bring the case within the protection of this constitutional provision, but there may be such serious interruption to the common and necessary use of property as will be equivalent to a taking. "It would be * * * [an] unsatisfactory result, if * * *, it shall be held that if the government refrains from the absolute conversion of real property to the uses of the public, it can destroy its value entirely, can inflict irreparable and permanent injury to any extent, can in effect, subject it to total destruction without making any compensation, because, in the narrowest sense of that word, it [has] not [been] taken for the public use."[639]

Takings for a purpose that is public hitherto have been held to comprise the following: a privately owned water supply system formerly operated under contract with the municipality effecting the taking;[640] a right of way across a neighbor's land for the enlargement of an irrigation ditch therein to enable the taker to obtain water for irrigating land that would otherwise remain valueless;[641] a right of way across a placer mining claim for the aerial bucket line of a mining corporation;[642] land, water, and water rights for the production of electric power by a public utility;[643] water rights by an interurban railway company for the production of power in excess of current needs;[644] places of historical interest;[645] land taken for the purpose of exchange with a railroad company for a portion of its right of way, required for widening a highway;[646] land by a railway for a spur track;[647] establishment by a municipality of a public hack stand upon the driveway maintained by a railroad upon its own terminal grounds to afford ingress and egress to its patrons.[648] Likewise, damages for which compensation must be paid are sustained by an upper riparian proprietor by reason of the erection of a dam by a lower mill owner under authority of a "mill act."[649] On the other hand, even when compensation is tendered, an owner of property cannot be compelled to assent to its taking by the State for the private use of another. Such a taking is prohibited, by the due process clause. Thus, a State, by law, could not require a railroad corporation, which had permitted the erection of two grain elevators by private citizens on its right of way, to grant upon like terms, a location to another group of farmers desirous of erecting a third grain elevator for their own benefit.[650]

Just Compensation

"When * * * [the] power [of eminent domain] is exercised it can only be done by giving the party whose property is taken or whose use and enjoyment of such property is interfered with, full and adequate compensation, not excessive or exorbitant, but just compensation."[651] However, "there must be something more than an ordinary honest mistake of law in the proceedings for compensation before a party can make out that the State has deprived him of his property unconstitutionally."[652] Unless, by its rulings of law, the State court prevented a complainant from obtaining substantially any compensation, its findings as to the amount of damages will not be overturned on appeal, even though as a consequence of error therein the property owner received less than he ought.[653] Accordingly, when a State court, expressly recognizing a right of recovery for any substantial damage, found that none had been shown by the proof, its award of only $1 as nominal damages was held to present no question for review.[654] "All that is essential is that in some appropriate way, before some properly constituted tribunal, inquiry shall be made as to the amount of compensation, and when this has been provided there is that due process of law which is required by the Federal Constitution."[655]

"The general rule is that compensation 'is to be estimated by reference to the uses for which the property is suitable, having regard to the existing business and wants of the community, or such as may be reasonably expected in the immediate future,' * * * [but] 'mere possible or imaginary uses, or the speculative schemes of its proprietor, are to be excluded.'"[656] Damages are measured by the loss to the owner, not by the gain to the taker;[657] and attorneys' fees and expenses are not embraced therein.[658] "When the public faith and credit are pledged to a reasonably prompt ascertainment and payment, and there is adequate provision for enforcing the pledge, * * * the requirement of just compensation is satisfied."[659]

Uncompensated Takings

"It is well settled that 'neither a natural person nor a corporation can claim damages on account of being compelled to render obedience to a police regulation designed to secure the common welfare.' * * * Uncompensated obedience to a regulation enacted for the public safety under the police power of the State is not a taking or damaging without just compensation of private property, * * *"[660] Thus, the flooding of lands consequent upon private construction of a dam under authority of legislation enacted to subserve the drainage of lowlands was not a taking which required compensation to be made, especially since such flooding could have been prevented by raising the height of dikes around the lands. "The rule to be gathered from these cases is that where there is a practical destruction, or material impairment of the value of plaintiff's lands, there is a taking, which demands compensation, but otherwise where, as in this case, plaintiff is merely put to some extra expense in warding off the consequences of the overflow."[661] Similarly, when a city, by condemnation proceedings, sought to open a street across the tracks of a railroad, it was not obligated to pay the expenses that the railroad would incur in planking the crossing, constructing gates, and posting gatemen at the crossing. The railway was presumed to have "laid its tracks subject to the condition necessarily implied that their use could be so regulated by competent authority as to insure the public safety."[662] Also, one who leased oyster beds in Hampton Roads from Virginia for $1 per acre under guaranty of an "absolute right" to use and occupy them was held to have acquired such rights subject to the superior power of Virginia to authorize Newport News to discharge its sewage into the sea; and, hence could not successfully contend that the resulting pollution of his oysters constituted an uncompensated taking without due process of law.[663]

Consequential Damages

"Acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking within the meaning of the due process clause."[664] Accordingly, consequential damages to abutting property caused by an obstruction in a street resulting from the authorization of a railroad to erect tracks, sheds, and fences over a portion thereof have been held to effect no unconstitutional deprivation of property.[665] Likewise, the erection over a street of an elevated viaduct, intended for general public travel and not devoted to the exclusive use of a private transportation corporation, has been declared to be a legitimate street improvement equivalent to a change in grade; and, as in the case of a change of grade, the owner of land abutting on the street has been refused damages for impairment of access to his land and the lessening of the circulation of light and air over it.[666]

Limits to the Above Rule.--There are limits however, to the amount of destruction or impairment of the enjoyment or value of private property which public authorities or citizens acting in their behalf may occasion without the necessity of paying compensation therefor. Thus, in upholding zoning regulations limiting the height of buildings which may be constructed in a designated zone, the Court has warned that similar regulations, if unreasonable, arbitrary, and discriminatory, may be held to deprive an owner of the profitable use of his property and hence to amount to a taking sufficient to require compensation to be paid for such invasion of property rights.[667] Similarly, in voiding a statute forbidding mining of coal under private dwellings or streets or cities in places where such right to mine has been reserved in a conveyance, Justice Holmes, speaking for his associates, declared if a regulation restricting the use of private property goes too far, it will be recognized as a taking for which compensation must be made. "Some values are enjoyed under an implied limitation, and must yield to the police power. But obviously the implied limitation must have its limits, * * * One fact for consideration in determining such limits is the extent of the diminution. * * * The damage [here] is not common or public. * * * The extent of the taking is great. It purports to abolish what is recognized in Pennsylvania as an estate in land."[668]

Due Process in Eminent Domain

(1) Notice.--If the owner of property sought to be condemned is a nonresident, personal notice is not requisite and service may be effected by publication.[669] In fact, "it has been uniformly held that statutes providing for * * * condemnation of land may adopt a procedure summary in character, and that notice of such proceedings may be indirect, provided only that the period of notice of the initiation of proceedings and the method of giving it are reasonably adapted to the nature of the proceedings and their subject matter." Insofar as reasonable notice is deemed to be essential, that requirement was declared to have been satisfied by a statute providing that notice of initiation of proceedings for establishment of a county road be published on three successive weeks in three successive issues of a paper published in the county, and that all meetings of the county condemning agency be public and published in a county newspaper.[670]

(2) Hearing.--The necessity and expediency of a taking being legislative questions irrespective of who may be charged with their decision, a hearing thereon need not be afforded;[671] but the mode of determining the compensation payable to an owner must be such as to furnish him with an opportunity to be heard. Among several admissible modes is that of causing the amount to be assessed by viewers, or by a jury, generally without a hearing, but subject to the right of the owner to appeal for a judicial review thereof at which a trial on the evidence may be had. Through such an appeal the owner obtains the hearing to which he is entitled;[672] and the fact that after having been adequately notified of the determination by the condemning authorities, the former must exercise his right of appeal within a limited period thereafter, such as 30 days, has been held not so arbitrary as to deprive him of property without due process of law.[673] Nor is there any "denial of due process in making the findings of fact by the triers of fact, whether commissioners or a jury, final as to such facts [that is, conclusive as to the mere value of the property], and leaving open to the courts simply the inquiry as to whether there was any erroneous basis adopted by the triers in their appraisal, * * *"[674]

(3) Occupation in Advance of Condemnation.--Due process does require that condemnation precede occupation by the condemning authority so long as the opportunity for a hearing as to the value of the land is guaranteed during the condemnation proceedings. Where the statute contains an adequate provision for assured payment of compensation without unreasonable delay, the taking may precede compensation.[675]

DUE PROCESS OF LAW IN CIVIL PROCEEDINGS

Some General Criteria

What is due process of law depends on the circumstances.[676] It varies with the subject matter and the necessities of the situation. By due process of law is meant one which, following the forms of law, is appropriate to the case, and just to the parties affected. It must be pursued in the ordinary mode prescribed by law; it must be adapted to the end to be attained; and whenever necessary to the protection of the parties, it must give them an opportunity to be heard respecting the justice of the judgment sought. Any legal proceeding enforced by public authority, whether sanctioned by age or custom or newly devised in the discretion of the legislative power, which regards and preserves these principles of liberty and justice, must be held to be due process of law.[677]

Ancient Usage and Uniformity.--What is due process of law may be ascertained in part by an examination of those settled usages and modes of proceedings existing in the common and statute law of England before the emigration of our ancestors, and shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country. If it can show the sanction of settled usage both in England and in this country, a process of law which is not otherwise forbidden may be taken to be due process of law. In other words, the antiquity of a procedure is a fact of weight in its behalf. However, it does not follow that a procedure settled in English law at the time of the emigration and brought to this country and practiced by our ancestors is, or remains, an essential element of due process of law. If that were so, the procedure of the first half of the seventeenth century would be fastened upon American jurisprudence like a strait jacket, only to be unloosed by constitutional amendment. Fortunately, the States are not tied down by any provision of the Constitution to the practice and procedure which existed at the common law, but may avail themselves of the wisdom gathered by the experience of the country to make changes deemed to be necessary.[678]

Equality.--If due process is to be secured, the laws must operate alike upon all, and not subject the individual to the arbitrary exercise of governmental power unrestrained by established principles of private rights and distributive justice. Where a litigant has the benefit of a full and fair trial in the State courts, and his rights are measured, not by laws made to affect him individually, but by general provisions of law applicable to all those in like condition, he is not deprived of property without due process of law, even if he can be regarded as deprived of his property by an adverse result.[679]

Due Process and Judicial Process.--Due process of law does not always mean a proceeding in court.[680] Proceedings to raise revenue by levying and collecting taxes are not necessarily judicial, neither are administrative and executive proceedings, yet their validity is not thereby impaired.[681] Moreover, the due process clause has been interpreted as not requiring that the judgment of an expert commission be supplanted by the independent view of judges based on the conflicting testimony, prophecies, and impressions of expert witnesses when judicially reviewing a formula of a State regulatory commission for limiting daily production in an oil field and for proration among the several well owners.[682]

Nor does the Fourteenth Amendment prohibit a State from conferring upon nonjudicial bodies certain functions that may be called judicial, or from delegating to a court powers that are legislative in nature. For example, State statutes vesting in a parole board certain judicial functions,[683] or conferring discretionary power upon administrative boards to grant or withhold permission to carry on a trade,[684] or vesting in a probate court authority to appoint park commissioners and establish park districts[685] are not in conflict with the due process clause and present no federal question. Whether legislative, executive, and judicial powers of a State shall be kept altogether distinct and separate, or whether they should in some particulars be merged is for the determination of the State.[686]

Jurisdiction

In General.--Jurisdiction may be defined as the power to create legal interests; but if a State attempts to exercise such power with respect to persons or things beyond its borders, its action is in conflict with the Fourteenth Amendment and is void within as well as without its territorial limits. The foundation of jurisdiction is therefore physical power capable of being exerted over persons through in personam actions and over things, generally through actions in rem.[687] In proceedings in personam to determine liability of a defendant, no property having been subjected by such litigation to the control of the Court, jurisdiction over the defendant's person is a condition prerequisite to the rendering of any effective decree.[688] That condition is fulfilled; that is, a State is deemed capable of exerting jurisdiction over an individual if he is physically present within the territory of the State, if he is domiciled in the State although temporarily absent therefrom, or if he has consented to the exercise of jurisdiction over him. In actions in rem, however, a State validly may proceed to settle controversies with regard to rights or claims against property within its borders, notwithstanding that control of the defendant is never obtained. Accordingly, by reason of its inherent authority over titles to land within its territorial confines, a State may proceed through its courts to judgment respecting the ownership of such property, even though it lacks the constitutional competence to reach claimants of title who reside beyond its borders.[689] By the same token, probate[690] and garnishment or foreign attachment[691] proceedings, being in the nature of in rem actions for the disposition of property, may be prosecuted to conclusion without requirement of the presence of all parties in interest.[692]

How Perfected: By Voluntary Appearance or Service of Process.--It is not enough, however, that a State be potentially capable of exercising control over persons and property. Before a State legitimately can exercise such power to alter private interests, its jurisdiction must be perfected by the employment of an appropriate mode of serving process deemed effective to acquaint all parties of the institution of proceedings calculated to affect their rights; for the interest of no one constitutionally may be impaired by a decree resulting from litigation concerning which he was afforded neither notice nor an opportunity to participate.[693] Voluntary appearance, on the other hand, may enable a State not only to obtain jurisdiction over a person who was otherwise beyond the reach of its process; but also, as in the case of a person who was within the scope of its jurisdiction, to dispense with the necessity of personal service. When a party voluntarily appears in a cause and actively conducts his defense, he cannot thereafter claim that he was denied due process merely because he was not served with process when the original action was commenced.[694]